Exhibit
4.1


 


Execution Copy


 


THIS INDENTURE, AND THE RIGHTS OF THE PARTIES HEREUNDER, ARE SUBJECT TO
THE  PROVISIONS OF THE OMNIBUS
INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 7, 2009, BETWEEN THE TRUSTEE AND
THE OTHER CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE COMPANY AND THE
GUARANTORS, AS AMENDED OR OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE
WITH THE PROVISIONS THEREOF.




 





 


FIBERTOWER CORPORATION


 


9.00% MANDATORILY REDEEMABLE
CONVERTIBLE SENIOR SECURED NOTES DUE 2012


 






 


INDENTURE


 


Dated as of December 7, 2009


 






 






 


Well Fargo Bank, National Association,


 


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)

  	
   

  	
  11.04

  
	
  (b)(2)

  	
   

  	
  8.07;11.04

  
	
  (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)

  	
   

  	
  11.04;11.05;11.06

  
	
  (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

  	
  28

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  28

  
	
  Section 1.04.

  	
  Rules of Construction

  	
  29

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 2.

  	
   

  
	
   

  	
  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and Dating

  	
  29

  
	
  Section 2.02.

  	
  Execution and Authentication

  	
  30

  
	
  Section 2.03.

  	
  Registrar, Paying Agent, Conversion Agent and Depositary

  	
  31

  
	
  Section 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
  31

  
	
  Section 2.05.

  	
  Holder Lists

  	
  31

  
	
  Section 2.06.

  	
  Transfer and Exchange

  	
  31

  
	
  Section 2.07.

  	
  Replacement Notes

  	
  43

  
	
  Section 2.08.

  	
  Outstanding Notes

  	
  43

  
	
  Section 2.09.

  	
  Treasury Notes

  	
  44

  
	
  Section 2.10.

  	
  Temporary Notes

  	
  44

  
	
  Section 2.11.

  	
  Cancellation

  	
  44

  
	
  Section 2.12.

  	
  Defaulted Interes

  	
  44

  
	
  Section 2.13.

  	
  CUSIP Numbers

  	
  45

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 3.

  	
   

  
	
   

  	
  REDEMPTION AND PREPAYMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Notices to Trustee

  	
  45

  
	
  Section 3.02.

  	
  Selection of Notes to Be Redeemed or Purchased

  	
  45

  
	
  Section 3.03.

  	
  Notice of Redemption

  	
  46

  
	
  Section 3.04.

  	
  Effect of Notice of Redemption

  	
  47

  
	
  Section 3.05.

  	
  Deposit of Redemption or Purchase Price

  	
  47

  
	
  Section 3.06.

  	
  Notes Redeemed or Purchased in Part

  	
  47

  
	
  Section 3.07.

  	
  Optional Redemption

  	
  47

  
	
  Section 3.08.

  	
  Repurchase at Option of Holder Upon a Designated Event

  	
  48

  
	
  Section 3.09.

  	
  Offer to Purchase by Application of Excess Proceeds

  	
  51

  
	
  Section 3.10.

  	
  Redemption at Maturity

  	
  53

  
	
  Section 3.11.

  	
  Mandatory Redemption

  	
  53

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 4.

  	
   

  
	
   

  	
  CONVERSION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Conversion Right and Conversion Rate

  	
  56

  
	
  Section 4.02.

  	
  Conversion Consideration

  	
  56

  
	
  Section 4.03.

  	
  Exercise of Conversion Right

  	
  57

  
	
  Section 4.04.

  	
  Fractions of Shares

  	
  58

  



 


i

















 


	
  Section 4.05.

  	
  Adjustment of Conversion Rate

  	
  59

  
	
  Section 4.06.

  	
  Notice of Adjustments of Conversion Rate

  	
  64

  
	
  Section 4.07.

  	
  Notice of Certain Corporate Action

  	
  65

  
	
  Section 4.08.

  	
  Cancellation of Converted Notes

  	
  65

  
	
  Section 4.09.

  	
  Provision in Case of Reclassification, Consolidation,
  Merger or Sale of Assets

  	
  65

  
	
  Section 4.10.

  	
  [Intentionally Omitted.]

  	
  67

  
	
  Section 4.11.

  	
  Share Issuance Cap

  	
  67

  
	
  Section 4.12.

  	
  Rights Issued in Respect of Common Stock

  	
  67

  
	
  Section 4.13.

  	
  Responsibility of Trustee for Conversion Provisions

  	
  67

  
	
  Section 4.14.

  	
  Certain Regulatory Requirements

  	
  68

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 5.

  	
   

  
	
   

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Payment of Notes

  	
  68

  
	
  Section 5.02.

  	
  Maintenance of Office or Agency

  	
  68

  
	
  Section 5.03.

  	
  Reports

  	
  69

  
	
  Section 5.04.

  	
  Compliance Certificate

  	
  69

  
	
  Section 5.05.

  	
  Taxes

  	
  70

  
	
  Section 5.06.

  	
  Stay, Extension and Usury Laws

  	
  70

  
	
  Section 5.07.

  	
  Limitation on Restricted Payments

  	
  71

  
	
  Section 5.08.

  	
  Limitation on Dividend and Other Payment Restrictions
  Affecting Subsidiaries

  	
  72

  
	
  Section 5.09. 

  	
  Limitation on Incurrence of Additional Indebtedness and
  Issuance of Preferred Stock

  	
  73

  
	
  Section 5.10.

  	
  Limitation on Asset Sales

  	
  76

  
	
  Section 5.11.

  	
  Limitation on Transactions with Affiliates

  	
  77

  
	
  Section 5.12.

  	
  Limitation on Liens

  	
  79

  
	
  Section 5.13.

  	
  Conduct of Business

  	
  79

  
	
  Section 5.14.

  	
  Designation of Restricted and Unrestricted Subsidiaries

  	
  79

  
	
  Section 5.15.

  	
  Issuance and Sale of Capital Stock of Restricted
  Subsidiaries

  	
  80

  
	
  Section 5.16.

  	
  Maintenance of Insurance

  	
  80

  
	
  Section 5.17.

  	
  Payments for Consent

  	
  81

  
	
  Section 5.18.

  	
  Additional Guarantees

  	
  81

  
	
  Section 5.19.

  	
  Anti-Layering

  	
  81

  
	
  Section 5.20.

  	
  Further Assurances Relating to Collateral

  	
  82

  
	
  Section 5.21.

  	
  Real Estate Mortgages and Filings

  	
  82

  
	
  Section 5.22.

  	
  Corporate Existence

  	
  83

  
	
  Section 5.23.

  	
  New License Subsidiary; Transfer of FCC Licenses

  	
  83

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 6.

  	
   

  
	
   

  	
  SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Merger, Consolidation, or Sale of Assets

  	
  84

  
	
  Section 6.02.

  	
  Successor Corporation Substituted

  	
  85

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 7.

  	
   

  
	
   

  	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Events of Default

  	
  85

  
	
  Section 7.02.

  	
  Acceleration

  	
  88

  
	
  Section 7.03.

  	
  Other Remedies

  	
  88

  
	
  Section 7.04.

  	
  Waiver of Past Defaults

  	
  89

  
	
  Section 7.05.

  	
  Control by Majority

  	
  89

  



 


ii

















 


	
  Section 7.06.

  	
  Limitation on Suits

  	
  89

  
	
  Section 7.07.

  	
  Rights of Holders of Notes to Receive Payment

  	
  90

  
	
  Section 7.08.

  	
  Collection Suit by Trustee

  	
  90

  
	
  Section 7.09.

  	
  Trustee May File Proofs of Claim

  	
  90

  
	
  Section 7.10.

  	
  Priorities

  	
  91

  
	
  Section 7.11.

  	
  Undertaking for Costs

  	
  91

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 8.

  	
   

  
	
   

  	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Duties of Trustee

  	
  92

  
	
  Section 8.02.

  	
  Rights of Trustee

  	
  93

  
	
  Section 8.03.

  	
  Individual Rights of Trustee

  	
  94

  
	
  Section 8.04.

  	
  Trustee’s Disclaimer

  	
  94

  
	
  Section 8.05.

  	
  Notice of Defaults

  	
  94

  
	
  Section 8.06.

  	
  Reports by Trustee to Holders of the Notes

  	
  94

  
	
  Section 8.07.

  	
  Compensation and Indemnity

  	
  94

  
	
  Section 8.08.

  	
  Replacement of Trustee

  	
  95

  
	
  Section 8.09.

  	
  Successor Trustee by Merger, etc.

  	
  96

  
	
  Section 8.10.

  	
  Eligibility; Disqualification

  	
  96

  
	
  Section 8.11.

  	
  Preferential Collection of Claims Against Company

  	
  97

  
	
  Section 8.12.

  	
  Powers of Trustee Subject to Communications Act

  	
  97

  
	
  Section 8.13.

  	
  Trustee as Paying Agent, Conversion Agent, Registrar and
  Collateral Agent

  	
  97

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 9.

  	
   

  
	
   

  	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
  97

  
	
  Section 9.02.

  	
  Legal Defeasance and Discharge

  	
  97

  
	
  Section 9.03.

  	
  Covenant Defeasance

  	
  98

  
	
  Section 9.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
  98

  
	
  Section 9.05. 

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

  	
  100

  
	
  Section 9.06.

  	
  Repayment to Company

  	
  100

  
	
  Section 9.07.

  	
  Reinstatement

  	
  101

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 10.

  	
   

  
	
   

  	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Without Consent of Holders of Notes

  	
  101

  
	
  Section 10.02.

  	
  With Consent of Holders of Notes

  	
  102

  
	
  Section 10.03.

  	
  Compliance with Trust Indenture Act

  	
  104

  
	
  Section 10.04.

  	
  Revocation and Effect of Consents

  	
  104

  
	
  Section 10.05.

  	
  Notation on or Exchange of Notes

  	
  104

  
	
  Section 10.06.

  	
  Trustee to Sign Amendments, etc.

  	
  104

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 11.

  	
   

  
	
   

  	
  COLLATERAL AND SECURITY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Collateral Agreements

  	
  105

  
	
  Section 11.02.

  	
  Recording and Opinions

  	
  106

  
	
  Section 11.03.

  	
  Agreements Requiring Application of Proceeds of Collateral

  	
  106

  
	
  Section 11.04.

  	
  Release of Collateral

  	
  106

  



 


iii

















 


	
  Section 11.05.

  	
  Certificates of the Company

  	
  108

  
	
  Section 11.06.

  	
  Certificates of the Trustee

  	
  108

  
	
  Section 11.07. 

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

  	
  108

  
	
  Section 11.08. 

  	
  Authorization of Receipt of Funds by the Trustee Under the
  Collateral Agreements

  	
  109

  
	
  Section 11.09.

  	
  Relative Rights

  	
  109

  
	
  Section 11.10. 

  	
  Limitation on Duty of Trustee and Collateral Agent as to
  Collateral; Indemnification

  	
  109

  
	
  Section 11.11.

  	
  Authorization of Intercreditor Agreement

  	
  110

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 12.

  	
   

  
	
   

  	
  NOTE GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Guarantee

  	
  110

  
	
  Section 12.02.

  	
  Limitation on Guarantor Liability

  	
  111

  
	
  Section 12.03.

  	
  Execution and Delivery of Note Guarantee

  	
  112

  
	
  Section 12.04.

  	
  Releases Following Sale of Assets

  	
  112

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 13.

  	
   

  
	
   

  	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Satisfaction and Discharge

  	
  113

  
	
  Section 13.02.

  	
  Application of Trust Money

  	
  114

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 14.

  	
   

  
	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
  Trust Indenture Act Controls

  	
  114

  
	
  Section 14.02.

  	
  Notices

  	
  114

  
	
  Section 14.03.

  	
  Communication by Holders of Notes with Other Holders of
  Notes

  	
  116

  
	
  Section 14.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  116

  
	
  Section 14.05.

  	
  Statements Required in Certificate or Opinion

  	
  116

  
	
  Section 14.06.

  	
  Rules by Trustee and Agents

  	
  116

  
	
  Section 14.07.

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
  116

  
	
  Section 14.08.

  	
  Governing Law

  	
  117

  
	
  Section 14.09.

  	
  No Adverse Interpretation of Other Agreements

  	
  117

  
	
  Section 14.10.

  	
  Successors

  	
  117

  
	
  Section 14.11.

  	
  Severability

  	
  117

  
	
  Section 14.12.

  	
  Counterpart Originals

  	
  117

  
	
  Section 14.13.

  	
  Benefit of Indenture

  	
  117

  
	
  Section 14.14.

  	
  Table of Contents, Headings, etc.

  	
  117

  
	
   

  	
   

  	
   

  
	
   

  	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  FORM OF
  NOTE

  	
   

  
	
  Exhibit B

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  	
   

  
	
  Exhibit C

  	
  FORM OF
  CERTIFICATE OF EXCHANGE

  	
   

  
	
  Exhibit D

  	
  FORM OF
  CERTIFICATE OF CONVERSION & RESTRICTED TRANSFER

  	
   

  
	
  Exhibit E

  	
  FORM OF
  NOTATION OF GUARANTEE

  	
   

  
	
  Exhibit F

  	
  FORM OF
  CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  	
   

  
				



 


iv

















 


	
  Exhibit G

  	
  FORM OF
  INTERCREDITOR AGREEMENT

  	
   

  
	
  Exhibit H

  	
  FORM OF
  INDENTURE FOR NEW NOTES

  	
   

  
	
  Exhibit I

  	
  FORM OF
  REGISTRATION RIGHTS AGREEMENT

  	
   

  
	
  Exhibit J

  	
  FORM OF
  ESCROW AGREEMENT

  	
   

  
	
  Exhibit K

  	
  FORM OF
  COLLATERAL AGREEMENT

  	
   

  
	
  Exhibit L

  	
  FORM OF
  COLLATERAL ASSIGNMENT (COPYRIGHTS)

  	
   

  
	
  Exhibit M

  	
  FORM OF
  COLLATERAL ASSIGNMENT (PATENTS)

  	
   

  
	
  Exhibit N

  	
  FORM OF COLLATERAL
  ASSIGNMENT (TRADEMARKS)

  	
   

  



 


v
















 


INDENTURE, dated as of December 7,
2009, among FiberTower Corporation, a Delaware corporation (the “Company”), the Guarantors (as defined below) and Wells Fargo
Bank, National Association, 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 (as defined below) of the 9.00%
Mandatorily Redeemable Convertible Senior Secured Notes due 2012 (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.


 


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


 


“Accretion Premium” means an amount
as calculated by the Company that is determined so that such Accretion Premium
represents for each Holder a return of 12.00% per annum, calculated on a
semi-annual basis, as if each $1,000 principal amount of the Notes were purchased
at the Issue Price on the Original Issue Date.


 


“Acquired Indebtedness” means, with
respect to any specified Person:


 


(1)                                 Indebtedness of
any other Person existing at the time such other Person is merged with or into
or became a Restricted Subsidiary of such specified Person, or Indebtedness
incurred by such specified Person in connection with the acquisition of assets,
including Indebtedness incurred in connection with, or in contemplation of,
such other Person merging with or into, or becoming a Restricted Subsidiary of,
such specified Person or the acquisition of such assets, as the case may be;
and


 


(2)                                 Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.


 


“Additional Notes” means the
aggregate principal amount of Notes (other than the Initial Notes) issued under
this Indenture (i) 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 attached as Exhibit A hereto or (ii) subject to the
satisfaction of all of the covenants in this Indenture, including, without
limitation, Sections 5.09 and 5.12 of this Indenture, in each case in the form
of Exhibit A hereto, 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 definition, “control,” 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 beneficial ownership of
10% or more of the Voting Stock of a Person will be deemed to be control.  For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.


 


“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.


 


“Aggregate Accreted
Principal Amount” means an amount as calculated by the Company equal
to 100% of the principal amount of the Notes redeemed or repurchased or
otherwise due plus the Accretion Premium on the principal amount of such
Notes.  The applicable Aggregate Accreted
Principal Amount, as of any specified date (the “Specified
Date”), for each $1,000 principal amount of Notes if the Specified
Date is one of the following dates (each a “Semi-Annual Date”),
is equal to the amount set forth opposite such date below:


 


	
  Semi-

  Annual 

  Date

  	
   

  	
  Aggregate 

  Accreted 

  Principal 

  Amount ($)

  	
   

  
	
  November 15, 2009

  	
   

  	
  1,105.38030

  	
   

  
	
  May 15, 2010

  	
   

  	
  1,126.70312

  	
   

  
	
  November 15, 2010

  	
   

  	
  1,149.30531

  	
   

  
	
  May 15, 2011

  	
   

  	
  1,173.26363

  	
   

  
	
  November 15, 2011

  	
   

  	
  1,198.65944

  	
   

  
	
  May 15, 2012

  	
   

  	
  1,225.57901

  	
   

  
	
  November 15, 2012

  	
   

  	
  1,254.11375

  	
   

  



 


If the Specified Date occurs
between two Semi-Annual Dates, the Aggregate Accreted Principal Amount shall be
the sum of (1) the Aggregate Accreted Principal Amount for the Semi-Annual
Date immediately preceding the Specified Date and (2) an amount equal to
the product of (A) the difference of (x) the Aggregate Accreted
Principal Amount for the immediately following Semi-Annual Date and (y) the
Aggregate Accreted Principal Amount for the immediately preceding Semi-Annual
Date and (B) a fraction, the numerator of which is the number of days
elapsed from the immediately preceding Semi-Annual Date to the Specified Date,
calculated on a basis of a 360 day year comprised of twelve 30 day months, and
the denominator of which is 180 days.


 


“Applicable Procedures” means, with respect
to any transfer or exchange of or for beneficial interests in any Global Note,
the rules and procedures of the Depositary, Euroclear and Clearstream that
apply to such transfer or exchange.


 


“Asset Acquisition” means (1) an
Investment by the Company or any Restricted Subsidiary in any other Person
pursuant to which such Person will become a Restricted Subsidiary of the
Company or will be merged or consolidated with or into the Company or any of
its Restricted Subsidiaries or (2) the acquisition by the Company or any
Restricted Subsidiary of the assets of any Person which constitute
substantially all of the assets of such Person or any division or line of
business of such Person.


 


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“Asset Sale” means in a
single transaction or a series of related transactions:


 


(1)                                 the sale,
lease, conveyance or other disposition of any assets or rights (including by
way of a sale and leaseback transaction), other than the sale, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company and its Restricted Subsidiaries taken as a whole; and


 


(2)                                 the issuance or
sale of Equity Interests of any of the Company’s Restricted Subsidiaries or the
sale of Equity Interests in any of the Company’s Subsidiaries.


 


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


 


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


 


(2)                                 a transfer of
assets between or among the Company and its wholly-owned Guarantors;


 


(3)                                 an issuance of
Equity Interests by a Restricted Subsidiary of the Company to the Company or to
a wholly-owned Guarantor;


 


(4)                                 the sale or
lease of products, services or accounts receivable in the ordinary course of
business or equipment or other assets pursuant to a program for the maintenance
or upgrading of such equipment or assets including, without limitation, the
disposition of equipment that is worn out or obsolete; or


 


(5)                                 the sale or
other disposition of cash or Cash Equivalents.


 


Notwithstanding anything to
the contrary contained above, a Restricted Payment that does not violate the
covenant described under Section 5.07 hereof or a Permitted Investment
shall not constitute an Asset Sale, except for purposes of determination of the
Consolidated Coverage Ratio.


 


“Average Life” means, as of
the date of determination, with respect to any Indebtedness, the quotient
obtained by dividing:


 


(1)                                 the sum of the
products of the number of years from the date of determination to the dates of
each successive scheduled principal payment of or redemption or similar payment
with respect to such Indebtedness multiplied by the amount of such payment by


 


(2)                                 the sum of all
such payments.


 


“Bankruptcy Code” means Title 11
of the United States Code (11 U.S.C. 101 et seq.), as amended from time to
time, and any successor statute, or if the context so requires, any similar
federal or state law.


 


“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


 


3

















 


“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.  The terms “beneficially owns” and “beneficially
owned” have a corresponding meaning.


 


“Board of Directors” means:


 


(1)                                 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;


 


(2)                                 with respect to
a partnership, the board of directors of the general partner of the
partnership;


 


(3)                                 with respect to
a limited liability company, the managing member or members or any controlling
committee of managing members thereof; and


 


(4)                                 with respect to
any other Person, the board or committee of such Person serving a similar
function.


 


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


 


“Business Day” means any day
other than a Saturday, a Sunday or a day on which banking institutions in The
City of New York, New York or San Francisco, California or at a place of
payment are authorized or required by law, regulation or executive order to
remain closed.


 


“Capital Lease Obligation” means, at the
time any determination is to be made, the amount of the liability in respect of
a capital lease that would at that 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:


 


(1)                                 in the case of
a corporation, corporate stock;


 


(2)                                 in the case of
an association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock;


 


(3)                                 in the case of
a partnership or limited liability company, partnership interests (whether
general or limited) or membership interests, respectively; and


 


(4)                                 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


 


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Stock, whether or not such
debt securities include any right of participation in profits, losses or
distribution of assets with Capital Stock.


 


“Cash Equivalents” means:


 


(1)                                 U.S. dollars;


 


(2)                                 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 pledged in
support of those securities) having maturities of not more than twelve months
from the date of acquisition;


 


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


 


(4)                                 repurchase
obligations with a term of not more than seven (7) days for underlying
securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications
specified in clause (3) above;


 


(5)                                 commercial
paper having one of the two highest ratings obtainable from Moody’s or Standard &
Poor’s and, in each case, maturing within twelve months after the date of
acquisition; and


 


(6)                                 money market
funds at least 95% of the assets of which constitute Cash Equivalents of the
kinds described in clauses (1) through (5) of this definition.


 


“Clearstream” means
Clearstream Banking, S.A.


 


“Closing Sale Price” means, with
respect to the Common Stock, on any date, the last reported per share sale
price (or, if no last sale price is reported, the average of the last bid and
ask prices or, if more than one in either case, the average of the average bid
and the average ask prices) on such date as reported in composite transactions
for the principal U.S. securities exchange on which the Common Stock then is
listed, or if the Common Stock is not listed on a U.S. national or regional
exchange, as reported on the Nasdaq Global Market, or if the Common Stock is
not quoted on the Nasdaq Global Market, as reported on the principal other
market on which the Common Stock is then traded.  In the absence of such quotations, the
Company’s Board of Directors will make a good faith determination of the
Closing Sale Price.


 


“Collateral” means all
collateral of whatsoever nature purported to be subject to the Lien of the
Collateral Agreements.


 


“Collateral Agent” means Wells
Fargo Bank, National Association, in its capacity as Collateral Agent under the
Collateral Agreements, together with its successors in such capacity.


 


“Collateral Agreements” means the
Intercreditor Agreement, the Security Agreement, the Collateral Assignment
(Copyrights), the Collateral Assignment (Patents), the Collateral


 


5

















 


Assignment
(Trademarks) and all other security agreements, pledge agreements, collateral
assignments, mortgages, deeds of trust, collateral agency agreements, control
agreements or other grants or transfers for security executed and delivered by
the Company or any Guarantor creating (or purporting to create) a Note Lien
upon Collateral in favor of the Collateral Agent, in each case, as amended,
modified, renewed, restated or replaced, in whole or in part, from time to
time, in accordance with its terms.


 


“Collateral Assignment
(Copyrights)” means the collateral assignment (copyrights),
substantially in the form of Exhibit L hereto, as amended, modified,
superseded, reinstated, succeeded or replaced from time to time in accordance
with its terms and the terms of this Indenture, made and given by the assignor(s) party
thereto to the Collateral Agent on the Exchange Offer Completion Date.


 


“Collateral Assignment
(Patents)” means the collateral assignment (patents),
substantially in the form of Exhibit M hereto, as amended, modified,
superseded, reinstated, succeeded or replaced from time to time in accordance
with its terms and the terms of this Indenture, made and given by the assignor(s) party
thereto to the Collateral Agent on the Exchange Offer Completion Date.


 


“Collateral Assignment
(Trademarks)” means the collateral assignment (trademarks),
substantially in the form of Exhibit N hereto, as amended, modified,
superseded, reinstated, succeeded or replaced from time to time in accordance
with its terms and the terms of this Indenture, made and given by the assignor(s) party
thereto to the Collateral Agent on the Exchange Offer Completion Date.


 


“Common Stock” means the
common stock of the Company, par value $0.001 per share, as it exists on the
date of this Indenture or any other shares of Capital Stock of the Company into
which such common stock shall be reclassified or changed.


 


“Communications Act” means the
Communications Act of 1934, as amended, the rules, regulations, orders,
decisions and written polices of the FCC, and binding interpretations of U.S.
federal courts of any of the foregoing.


 


“Consolidated Coverage
Ratio” means with respect to any Person as of any date of determination, the
ratio of (A) the aggregate amount of EBITDA of such Person and its
Restricted Subsidiaries for the period of the most recent four consecutive
fiscal quarters ending prior to the date of such determination and as to which
financial statements are available to (B) Consolidated Interest Expense of
such Person and its Restricted Subsidiaries for such four fiscal quarters; provided, however, that:


 


(1)                                 if such Person
or any of its Restricted Subsidiaries has incurred any Indebtedness since the
beginning of such period through the determination date that remains
outstanding or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an incurrence of Indebtedness, or both, EBITDA
and Consolidated Interest Expense for such Person for such period shall be
calculated after giving effect on a pro forma basis
to (A) such Indebtedness as if such Indebtedness had been incurred on the
first day of such period, and (B) the discharge of any other Indebtedness
repaid, repurchased, defeased or otherwise


 


6

















 


discharged with the proceeds
of such new Indebtedness as if such discharge had occurred on the first day of
such period;


 


(2)                                 if since the
beginning of such period any Indebtedness of such Person or any of its
Restricted Subsidiaries has been repaid, repurchased, defeased or otherwise
discharged (other than Indebtedness under a revolving credit or similar
arrangement unless such revolving credit Indebtedness has been permanently
repaid and has not been replaced), Consolidated Interest Expense for such
Person for such period shall be calculated after giving pro forma
effect thereto as if such Indebtedness had been repaid, repurchased, defeased
or otherwise discharged on the first day of such period;


 


(3)                                 if since the
beginning of such period such Person or any of its Restricted Subsidiaries
shall have made any Asset Sale or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio is an Asset Sale, EBITDA for such
Person for such period shall be reduced by an amount equal to the EBITDA (if
positive) attributable to the assets which are the subject of such Asset Sale
for such period or increased by an amount equal to the EBITDA (if negative)
attributable thereto for such period, and Consolidated Interest Expense for
such Person for such period shall be (A) reduced by an amount equal to the
Consolidated Interest Expense attributable to any Indebtedness of such Person
or any of its Restricted Subsidiaries repaid, repurchased, defeased or
otherwise discharged with respect to such Person and its continuing Restricted
Subsidiaries in connection with such Asset Sale for such period (or, if the Capital
Stock of any Restricted Subsidiary of such Person is sold, transferred or
otherwise disposed of, the Consolidated Interest Expense for such Person for
such period directly attributable to the Indebtedness of such Restricted
Subsidiary to the extent such Person and its continuing Restricted Subsidiaries
are no longer liable for such Indebtedness after such sale, transfer or other
disposition) and (B) increased by interest income attributable to the
assets which are the subject of such Asset Sale for such period;


 


(4)                                 if since the
beginning of such period such Person or any of its Restricted Subsidiaries (by
merger or otherwise) shall have made an Asset Acquisition, EBITDA and
Consolidated Interest Expense for such Person for such period shall be
calculated after giving pro forma
effect thereto (including the incurrence of any Indebtedness) as if such Asset
Acquisition occurred on the first day of such period; and


 


(5)                                 if since the
beginning of such period any Person that subsequently became a Restricted Subsidiary
of such Person or was merged with or into such Person or any of its Restricted
Subsidiaries since the beginning of such period shall have made any Asset Sale
or Asset Acquisition that would have required an adjustment pursuant to clause (3) or
(4) above if made by such Person or a Restricted Subsidiary of such Person
during such period, EBITDA and Consolidated Interest Expense for such period
for such Person shall be calculated after giving pro forma
effect thereto as if such Asset Sale or Asset Acquisition occurred on the first
day of such period.


 


7

















 


For purposes of this
definition, whenever pro forma
effect is to be given to an Asset Acquisition, the amount of income or earnings
relating thereto and the amount of Consolidated Interest Expense associated
with any Indebtedness incurred in connection therewith, the pro forma calculations shall be determined in accordance
with GAAP and Regulation S-X under the Securities Act, to the extent
applicable, and may take into account such reasonable additional expense
synergies and other adjustments determined, in each case, in good faith by a
responsible financial or accounting officer of the Company to the extent
permitted by GAAP and Regulation S-X. Any Person that is a Restricted
Subsidiary on the determination date will be deemed to have been a Restricted
Subsidiary at all times during such four-quarter period and any Person that is
not a Restricted Subsidiary on the determination date will be deemed not to have
been a Restricted Subsidiary at any time during such four-quarter period. If
any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness
shall be calculated as if the rate in effect on the date of determination had
been the applicable rate for the entire period (taking into account any
Interest Rate Agreement applicable to such Indebtedness if such Interest Rate
Agreement has a remaining term that extends at least until the end of such
period).


 


“Consolidated Interest
Expense” means, with respect to any Person for any period,
the total interest expense of such Person and its Restricted Subsidiaries for
such period as determined on a consolidated basis in accordance with GAAP
(including commitment fees, letter of credit fees and the interest component of
Capital Lease Obligations), including the net amounts paid or received under
all Interest Rate Agreements, plus, to the extent not included in such interest
expense and without duplication, (1) amortization of debt discount, (2) capitalized
interest, (3) non-cash interest expense, (4) any interest expense on
Indebtedness of another Person that is guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries, whether or not such Guarantee or Lien is called
upon, (5) the interest portion of any deferred payment obligation, and (6) the
product of (x) all cash and Disqualified Stock dividends in respect of all
Disqualified Stock of such Person held by Persons other than such Person or a
wholly-owned Subsidiary of such Person times (y) a fraction, the numerator
of which is one and the denominator of which is one minus the then current
effective consolidated federal, state and local tax rate of such Person,
expressed as a decimal, and less, to the extent included in such total interest
expense, the amortization of capitalized debt issuance costs.


 


“Consolidated Net Income” means, with
respect to any Person for any period, the net income (loss) of such Person and
its consolidated Restricted Subsidiaries for such period determined in
accordance with GAAP; provided, however, that there shall not be included in
such Consolidated Net Income (1) the net income (but not loss) of any
Restricted Subsidiary of such Person to the extent that the declaration or
payment of dividends or similar distributions by such Restricted Subsidiary was
not permitted (without giving effect to any non-permanent waiver), directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary, (2) any gains or
losses realized upon the sale or other disposition of any assets of such Person
or its consolidated Restricted Subsidiaries not sold or disposed of in the
ordinary course of business (including Capital Stock or pursuant to any sale
and leaseback transaction), (3) any non-recurring or extraordinary gain or
loss (including expenses related to the issuance of the Notes), (4) the
net income of any Person accrued prior to the date it became a Restricted
Subsidiary of the referent Person or is merged or consolidated with the
referent Person or a Restricted Subsidiary of the referent Person, (5) the
cumulative effect of a change in 


 


8

















 


accounting
principles, (6) subject to clause (7) below, the net income (but not
loss) of any Person that is not a Restricted Subsidiary or that is accounted
for by the equity method of accounting, except to the extent of the amount of
dividends or similar distributions paid in cash to the specified Person or a
Restricted Subsidiary of the Person, (7) the net income (or loss) of any
Unrestricted Subsidiary, whether or not distributed to the specified Person or
one of its Restricted Subsidiaries, (8) any restoration to income of any
contingency reserve, except to the extent that provision for such reserve was
made out of Consolidated Net Income accrued at any time following the Original
Issue Date, and (9) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such period
whether or not such operations were classified as discontinued).


 


“Consolidated Net Worth” means, with
respect to any Person as of any date, the sum of:


 


(1)                                 the
consolidated equity of the common stockholders of such Person as of such date;
plus


 


(2)                                 the respective
amounts reported on such Person’s balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such declaration
and payment, but only to the extent of any such cash received by such Person
upon issuance of such preferred stock less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of
tangible assets of a going concern business made 12 months after the
acquisition of such business) subsequent to the date of this Indenture in the
book value of any asset owned by such Person or a consolidated Subsidiary of
such Person, and (y) all unamortized debt discount and expense and unamortized
deferred charges as of such date, all of the foregoing determined in accordance
with GAAP.


 


“Conversion Price” means the
price obtained by dividing $1,000 by the then effective Conversion Rate, which
shall initially be $6.22 per share, and which shall be subject to adjustment as
provided in this Indenture.


 


“Current Market Price” means the
volume weighted average of the daily Closing Sale Prices per share of Common
Stock for the ten (10) consecutive Trading Days ending on the earlier of
the date of determination and the day before the “ex” date with respect to the
distribution requiring such computation. 
For purposes of this definition, the term “ex” date, when used with
respect to any distribution, means the first date on which the Common Stock
trades, regular way, on the relevant exchange or in the relevant market from
which the closing price was obtained without the right to receive such
distribution.  The Company will make
adjustments to the Current Market Price in accordance with this Indenture to
account for the occurrence of certain events during the ten (10) consecutive
Trading Day period.


 


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


 


“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.


 


9
















 


“Definitive Note” means a
certificated Note registered in the name of the Holder thereof and issued in
accordance with Section 2.06 hereof, substantially in the form of Exhibit A
hereto except that such Note shall not bear the Global Note Legend and shall
not have the “Schedule of Exchanges of Interests in the Global Note” attached
thereto.


 


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


 


“Designated Event” means any
event that is a Fundamental Change or Termination of Trading.


 


“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 of the Capital Stock, in
whole or in part, on or prior to the date that is ninety-one (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 the covenant described under Section 5.07 hereof.  The amount of Disqualified Stock deemed to be
outstanding at any time for purposes of this Indenture will be the maximum
amount that the Company and its Restricted 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.


 


“Domestic Restricted
Subsidiary” means any Restricted Subsidiary of the Company that
was formed under the laws of the United States or any state of the United Sates
or the District of Columbia or that guarantees or otherwise provides direct
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries.


 


“DTC” means The
Depository Trust Company.


 


“EBITDA” with respect
to any Person for any period means the sum (without duplication) of
Consolidated Net Income, plus the following to the extent deducted in
calculating such Consolidated Net Income:


 


(1)                                 all income tax
expense of such Person and its consolidated Restricted Subsidiaries;


 


(2)                                 Consolidated
Interest Expense;


 


(3)                                 depreciation
and amortization expense of such Person and its Restricted Subsidiaries
(excluding amortization expense attributable to a prepaid cash item that was
paid in a prior period); and


 


10

















 


(4)                                 all other
non-cash charges of such Person and its consolidated Restricted Subsidiaries
(excluding any such non-cash charge to the extent that it represents an accrual
of or reserve for cash expenditures in any future period),


 


in each case for such
period. Notwithstanding the foregoing, the provisions for taxes based on the
income or profits of, and the depreciation and amortization and non-cash
charges of, a Restricted Subsidiary shall be added to Consolidated Net Income
to compute EBITDA only to the extent (and in the same proportion) that the net
income of such Restricted Subsidiary was included in calculating Consolidated
Net Income and only if a corresponding amount would be permitted at the date of
determination to be dividended to the Person in question by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.


 


“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).


 


“Euroclear” means
Euroclear Bank, S.A./N.V.


 


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


 


“Exchange Offer” means that
certain exchange offer and consent solicitation by the Company to exchange any
and all tendered and accepted Existing Notes for a like principal amount of
Notes and to obtain the related consents to modify the indenture, intercreditor
agreement and security agreements governing and relating to the Existing Notes,
initiated by the Company on or about October 26, 2009, as the same may be
amended or extended from time to time.


 


“Exchange Offer Completion
Date” means the date on which the Exchange Offer is consummated and the
Interim Notes are first issued.


 


“Excluded Assets” will include,
among other things, (1) any lease, license, permit, franchise, power,
authority or right if, to the extent that and for long as (A) the grant of
a security interest therein validly constitutes or would result in the
abandonment, invalidation or unenforceability of such lease, license, permit,
franchise, power, authority or right or the termination or default under the
instrument or agreement by which such lease, license, permit, franchise, power,
authority or right is governed and (B) such abandonment, invalidation,
unenforceability, breach, termination or default is not rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor
provision) of any relevant jurisdiction or other applicable law (including the
Bankruptcy Code) or principles of equity; provided, however, that (x) such lease, license, permit,
franchise, power, authority or right will be an Excluded Asset only to the
extent and for as long as the conditions set forth in clauses (A) and (B) of
this paragraph are and remain satisfied, and to the extent such assets
otherwise constitute Collateral, such assets will cease to be Excluded Assets
and will become subject to the first priority security interest of the Collateral
Agent for the benefit of the Holders and of the Pari Passu Collateral Agent for
the benefit of the holders of any Pari Passu Obligations, immediately and
automatically at such time as such conditions cease to exist, including by
reason of any waiver or consent under the applicable instrument or agreement,
and (y) the proceeds of any sale, 


 


11

















 


lease
or other disposition of any such lease, license, permit, franchise, power,
authority or right that is or becomes an Excluded Asset shall not be an
Excluded Asset and shall at all times be and remain subject to the first
priority security interest of the Collateral Agent for the benefit of the
Holders and of the Pari Passu Collateral Agent for the benefit of the holders
of any Pari Passu Obligations, (2) non-material real property, (3) leased
real property, and (4) any instrument evidencing Indebtedness owed to the
Company or any of the Guarantors to the extent that (A) the existence and
amount of such instrument was disclosed in the Final Offering Memorandum or (B)
such instrument is created following the Exchange Offer Completion Date in a
transaction that complies with this Indenture. The Notes also do not have the
benefit of any security interest in the assets of any Subsidiaries of the
Company that are not Domestic Restricted Subsidiaries.


 


“Existing Collateral
Agreements” means all security agreements, pledge agreements,
collateral assignments, mortgages, deeds of trust, collateral agency
agreements, control agreements or other grants or transfers for security
executed and delivered by the Company or any Guarantor creating (or purporting
to create) a Lien upon Collateral in favor of the Existing Notes Collateral
Agent pursuant to the Existing Notes Indenture, in each case, as amended,
modified, renewed, restated or replaced, in whole or in part, from time to
time, in accordance with its terms.


 


“Existing Indebtedness” means all
Indebtedness of the Company and its Restricted Subsidiaries in existence on the
Exchange Offer Completion Date, until such amounts are repaid.


 


“Existing Note
Indebtedness” means: (i) the Existing Notes and the
guarantees of the Existing Notes and (ii) any additional Existing Notes
and guarantees issued pursuant to the Existing Notes Indenture.


 


“Existing Note Obligations” means Existing
Note Indebtedness and all other Obligations in respect thereof.


 


“Existing Notes” means the
Company’s 9.00% Convertible Senior Secured Notes due 2012, issued under the
Existing Notes Indenture.


 


“Existing Notes Collateral
Agent” means the Trustee, in its capacity as Collateral Agent under the
Existing Collateral Agreements pursuant to the Existing Notes Indenture,
together with its successors in such capacity.


 


“Existing Notes Documents” means the
Existing Notes Indenture, the Existing Notes, the guarantees securing the
Existing Notes, the Existing Notes Collateral Agreements, and any other
agreements governing, securing or relating to any Existing Note Obligations,
each as amended from time to time.


 


“Existing Notes Indenture”
means the indenture among the Company, the guarantors thereunder and
Wells Fargo Bank, National Association, as trustee, dated November 9,
2006, as amended from time to time.


 


“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), evidenced by a Board Resolution
delivered to the Trustee.


 


12

















 


“FCC” means the U.S.
Federal Communications Commission and any successor agency that is responsible
for regulating the U.S. telecommunications industry.


 


“FCC License” means any
authorization, license or permit issued by the FCC, together with any
extensions or renewals thereof.


 


“Field EBITDA” means, with
respect to any Person for any period, the consolidated service revenues minus
the cost of service revenues (excluding depreciation and amortization) of such
Person and its consolidated Restricted Subsidiaries, as contained on such
Person’s consolidated income statement, minus the field personnel expense of
such Person and its consolidated Restricted Subsidiaries, for such period, all
as determined in accordance with GAAP, on an annualized basis, and certified to
the Trustee in an Officer’s Certificate.


 


“Final Offering Memorandum” means the
offering memorandum of the Company, dated October 26, 2009, relating to
the offering of the Initial Notes, as amended prior to the Exchange Offer
Completion Date.


 


“Fundamental Change” will be deemed
to have occurred at such time as:


 


(1)                                 any “person” or
“group” (as these terms are used for purposes of Section 13(d) and 14(d) of
the Exchange Act), other than a Permitted Holder or a “group” the majority of
the voting power of the shares of the Company’s Capital Stock beneficially
owned by which is beneficially owned by Permitted Holders, is or becomes the “beneficial
owner” (as that term is used in Rule 13d-3 under the Exchange Act),
directly or indirectly, of 50% or more of the total voting power of all classes
of the Company’s Capital Stock entitled to vote generally in the election of
directors;


 


(2)                                 the following
Persons cease for any reason to constitute a majority of the Company’s Board of
Directors:


 


A.                                  individuals who
on the Original Issue Date constituted the Company’s Board of Directors; and


 


B.                                    any new
directors whose election to the Company’s Board of Directors or whose nomination
for election by the Company’s stockholders was approved by at least a majority
of the Company’s Board of Directors, or if applicable, a majority of the
Company’s directors on the Board of Directors’ nominating committee then still
in office who were either directors on the Original Issue Date or whose
election or nomination for election was previously so approved;


 


(3)                                 the Company
consolidates with, or merges with or into, another Person or any Person
consolidates with, or merges with or into, the Company, in any such event other
than pursuant to a transaction in which the Persons that “beneficially owned,”
directly or indirectly, the shares of the Company’s Voting Stock immediately
prior to such transaction, “beneficially own,” directly or indirectly, immediately
after such transaction, shares of the continuing or surviving Person’s Voting
Stock representing at least a majority of the total voting power of all
outstanding classes of Voting Stock of the continuing or surviving Person;


 


13

















 


(4)                                 the sale,
transfer, lease, conveyance or other disposition of all or substantially all of
the Company’s assets or properties to any “person” or “group” (as those terms
are used in Sections 13(d) and 14(d) of the Exchange Act), including
any group acting for the purpose of acquiring, holding, voting or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange
Act; or


 


(5)                                 the Company is
liquidated or dissolved or holders of the Company’s Capital Stock approve any
plan or proposal for its liquidation or dissolution.


 


However, a Fundamental
Change will not be deemed to have occurred if, in the case of a merger or
consolidation, 90% or more of the total consideration (other than cash payments
for fractional shares or pursuant to statutory appraisal rights) in the merger
or consolidation constituting the Fundamental Change consists of common stock
and any associated rights traded on a United States national securities
exchange or quoted on the Nasdaq Global Market (or which will be so traded or
quoted when issued or exchanged in connection with such Fundamental Change),
and, as a result of such transaction or transactions, the Holders’ rights to
convert Notes into shares of Common Stock will be changed into the right to
convert Notes into the kind and amount of cash, securities or other property
that the Holder would have received if the Holder had converted its Notes
immediately prior to such transaction or transactions.


 


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


 


“Global Note Legend” means the
legend set forth in Section 2.06(f)(ii) hereof, which is required to
be placed on all Global Notes issued under this Indenture.


 


“Global Notes” means,
individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes deposited with or on behalf of and registered in the
name of the Depositary or its nominee, substantially in the form of Exhibit A
hereto and that bears the Global Note Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto.


 


“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
Domestic Restricted Subsidiary on the date of this Indenture, and each other
Domestic Restricted Subsidiary that executes a Note Guarantee in accordance
with the provisions of this Indenture, in each case, together with their
respective successors and 


 


14

















 


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 incurred in the
ordinary course of business to protect against interest rate and foreign
currency exchange rate fluctuations, under:


 


(1)                                 interest rate
swap agreements, interest rate cap agreements and interest rate collar
agreements;


 


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


 


(3)                                 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.


 


“IAI Global Note” means a Global
Note substantially in the form of Exhibit A hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee, that shall be
initially issued in a denomination equal to $0, but shall thereafter be revised
to represent the outstanding principal amount of the Notes transferred to
Institutional Accredited Investors.


 


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


 


(1)                                 in respect of
borrowed money;


 


(2)                                 evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);


 


(3)                                 in respect of
banker’s acceptances;


 


(4)                                 representing
Capital Lease Obligations;


 


(5)                                 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


 


(6)                                 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
prepared in accordance with GAAP and also includes, to the extent not otherwise
included, the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or, with
respect to any Subsidiary of such Person, the liquidation preference with
respect to any preferred Equity Interests. In addition, the term “Indebtedness”
includes all Indebtedness of others secured by a Lien on any asset of the
specified Person (whether or not 


 


15

















 


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.


 


“Indirect Participant” means a Person
who holds a beneficial interest in a Global Note through a Participant.


 


“Initial Notes” means
$266,791,438 million aggregate principal amount of Notes issued under this
Indenture on the date of this Indenture.


 


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


 


“Intercreditor Agreement” means the
omnibus intercreditor agreement, substantially in the form of Exhibit G
hereto, as amended, modified, superseded, reinstated, succeeded or replaced
from time to time in accordance with its terms and the terms of this Indenture,
entered into on the Exchange Offer Completion Date, among the Company, the
Guarantors, any Working Capital Facility Collateral Agent, the Collateral
Agent, on behalf of the Holders, the collateral agent with regard to the
Existing Notes, and any Pari Passu Collateral Agent, on behalf of holders of
Pari Passu Indebtedness (or if none, the holders of Pari Passu Indebtedness).


 


“Interest Rate Agreement” means with
respect to any Person any interest rate protection agreement, interest rate
future agreement, interest rate option agreement, interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate
hedge agreement or other similar agreement or arrangement designed to provide
protection against fluctuations in interest rates as to which such Person is
party or a beneficiary.


 


“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 Restricted Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to
any such sale or disposition, such Person is no longer a Restricted Subsidiary
of the Company, the Company or such Restricted Subsidiary will be deemed to
have made an Investment on the date of any such sale or disposition in such
Restricted Subsidiary. The acquisition by the Company or any Restricted
Subsidiary of the Company of a Person that holds an Investment in a third
Person will be deemed to be an Investment by the Company or such Restricted
Subsidiary in such third Person.


 


“Issue Price” means 100% of
the principal amount of the Notes.


 


“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 


 


16

















 


security
interest in and any filing of or agreement to give any financing statement
under the UCC (or equivalent statutes) of any jurisdiction.


 


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


 


“Net Proceeds” means the
aggregate cash proceeds received by the Company or any of its Restricted
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), net of (1) the direct costs relating to such
Asset Sale, including, without limitation, legal, accounting and investment
banking fees, sales commissions, relocation expenses incurred as a result of
the Asset Sale, and taxes paid or payable as a result of the Asset Sale after
taking into account any available tax credits or deductions and any tax sharing
arrangements, (2) amounts required to be applied to the repayment of
Indebtedness, other than Indebtedness under a Working Capital Facility, secured
by a Lien on the asset or assets that were the subject of such Asset Sale, and (3) any
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.


 


“New License Subsidiary” means a new
Subsidiary formed by the Company after the consummation of the Exchange Offer,
which shall be a Restricted Subsidiary hereunder, to which the Company is
obligated to transfer its FCC Licenses, subject to certain conditions, as set
forth in Section 5.23.


 


“New Notes” means the 9.0%
Senior Secured Notes of the Company to be issued as part of the Mandatory
Redemption Price on the Mandatory Redemption Date pursuant to the Indenture
attached hereto as Exhibit H.


 


“Non-Recourse Indebtedness” means
Indebtedness:


 


(1)                                 as to which
neither the Company nor any of its Restricted Subsidiaries (A) provides
credit support of any kind (including any undertaking, agreement or instrument
that would constitute Indebtedness) or (B) is directly or indirectly
liable as a guarantor or otherwise; and


 


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


 


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


 


“Note Documents” means this
Indenture, the Notes, the Note Guarantees, the Collateral Agreements, and any
other agreements governing, securing or relating to any Note Obligations.


 


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


 


17
















 


“Note Indebtedness” means: (1) the
Initial Notes and the Note Guarantees issued on the Exchange Offer Completion
Date and (2) any Additional Notes and Note Guarantees thereon issued
pursuant to this Indenture.


 


“Note Lien” means a Lien
granted by a Collateral Agreement to the Collateral Agent (or any other holder,
or representative of holders, of Note Obligations), at any time, upon any
assets of the Company or any Guarantor to secure Note Obligations.


 


“Note Obligations” means Note
Indebtedness and all other Obligations in respect thereof.


 


“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:


 


(1)           with respect to Note
Indebtedness, any principal, premium, if any, accrued and unpaid interest, or
monetary penalty, or damages, due by the Company or any Guarantor under the
terms of the Notes or this Indenture;


 


(2)           with respect to Working
Capital Facility Indebtedness, any principal (including reimbursement
obligations with respect to letters of credit whether or not drawn), interest
(including, to the extent legally permitted, all interest accrued thereon after
the commencement of any insolvency or liquidation proceeding at the rate,
including any applicable post-default rate, specified in the Working Capital
Facility Documents, even if such interest is not enforceable, allowable or allowed
as a claim in such proceeding), premium (if any), fees, indemnifications,
reimbursements, expenses and other liabilities payable by the Company or any
guarantor of the Working Capital Facility Indebtedness.


 


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


 


“Officer’s Certificate” means a
certificate signed on behalf of the Company by an Officer of the Company, who
must be the Chief Executive Officer, the Chief Financial Officer, the Treasurer
or the Chief 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.


 


“Ordinary Course Affiliate
Transaction” means any Affiliate Transaction entered into in the
ordinary course of business that is comprised of (1) a lease or leases or
other similar arrangements for the installation and existence of the Company’s
or any of its Restricted Subsidiaries’ equipment on or about radio towers or
other structures, (2) the acquisition or


 


18

















 


provision
of communication transport services via fiber optic or other communications
infrastructure, or (3) other contractual arrangements relating to (1) or
(2).


 


“Original Issue Date” means November 9,
2006, the date of original issuance of the Existing Notes.


 


“Pari Passu Collateral
Agent” means, at any time, the Person serving at such time as the “Collateral
Agent” under the agreement governing any Pari Passu Indebtedness or any other
representative then most recently designated in accordance with the applicable
provisions of any such agreement, together with its successors in such
capacity.


 


“Pari Passu Indebtedness” has the
meaning ascribed to it in the Intercreditor Agreement.


 


“Pari Passu Obligations” means the Pari
Passu Indebtedness and all other Obligations in respect of Pari Passu
Indebtedness.


 


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


 


“Permitted Business” means the
business of the Company and its Restricted Subsidiaries as described in the the
Company’s Annual Report on Form 10-K for the year ended December 31,
2008, and any business or activity reasonably related or ancillary thereto.


 


“Permitted Holders” means Crown
Castle Investment Corp., Solus Alternative Asset Management LP, BlackRock, Inc.,
Och-Ziff Capital Management Group LLC, Zazove Associates, LLC and their
respective Affiliates.


 


“Permitted Investments” means:


 


(1)           any Investment in the
Company or in a wholly-owned Restricted Subsidiary of the Company;


 


(2)           any investment in Cash
Equivalents;


 


(3)           any Investment by the
Company or a wholly-owned Restricted Subsidiary of the Company in a Person, if
as a result of such Investment:


 


A.            such Person becomes a
wholly-owned Restricted 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 wholly-owned
Restricted Subsidiary of the Company;


 


(4)           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;


 


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


 


19

















 


(6)           any Investments received in
compromise or resolution of litigation, arbitration or other disputes;


 


(7)           Investments represented by
Hedging Obligations;


 


(8)           loans or advances to
employees made in the ordinary course of business of the Company or any
Restricted Subsidiary of the Company for bona fide business purposes in an
aggregate principal amount not to exceed $1.0 million at any one time
outstanding;


 


(9)           the making of any other
Investment not otherwise permitted under the immediately preceding clauses (1) to
(8) having a Fair Market Value (measured on the date such Investment was
made and without giving effect to subsequent changes in value), when taken
together with all other Permitted Investments made since the date of this
Indenture pursuant to this clause (9) that are at the time outstanding, in
an aggregate amount not to exceed $5.0 million; and


 


(10)         repurchases of the Notes or
the Existing Notes.


 


“Permitted Liens” means:


 


(1)           subject to the terms of the
Intercreditor Agreement, Liens on assets of the Company or any of the
Guarantors securing Indebtedness and other Obligations under the Working
Capital Facility that was permitted by the terms of this Indenture to be
incurred and/or securing Hedging Obligations related thereto;


 


(2)           subject to the terms of the
Intercreditor Agreement, Liens to secure Indebtedness permitted by clause (2) of
the second paragraph of Section 5.09 hereof;


 


(3)           subject to the terms of the
lntercreditor Agreement, Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (10) of the second paragraph of Section 5.09
hereof covering only the assets acquired with or financed by such Indebtedness;


 


(4)           Liens securing Indebtedness
and other Obligations represented by the Initial Notes issued on the Exchange
Offer Completion Date and any Additional Notes issued as interest on the Notes,
and the Note Guarantees with respect thereto;


 


(5)           Liens in favor of the
Company or any Restricted Subsidiary of the Company;


 


(6)           Liens to secure the
performance of statutory obligations, surety or appeal bonds, performance bonds
or other obligations of a like nature incurred in the ordinary course of
business;


 


(7)           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;


 


20

















 


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


 


(9)           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;


 


(10)         Liens on property of a
Person existing at the time such Person is merged with or into or consolidated
with the Company or any Subsidiary of the Company; provided
that such Liens were in existence prior to, and not incurred in contemplation
of, such merger or consolidation and do not extend to any assets other than
those of the Person merged into or consolidated with the Company or the
Subsidiary;


 


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


 


(12)         Liens to secure any
Permitted Refinancing Indebtedness permitted to be incurred under this
Indenture; provided, however, that:


 


A.            the new Lien shall be
limited to all or part of the same property and assets that secured or, under
the written agreements pursuant to which the original Lien arose, could secure
the original Lien (plus improvements and accessions to such property or
proceeds or distributions thereof); and


 


B.            the Indebtedness secured by
the new Lien is not increased to any amount greater than the sum of (x) the
outstanding principal amount, or, if greater, committed amount, of the
Permitted Refinancing Indebtedness and (y) an amount necessary to pay any
fees and expenses, including premiums, related to such Permitted Refinancing
Indebtedness;


 


(13)         to the extent, in each case,
not otherwise resulting in an Event of Default, Liens arising by reason of a
judgment, decree or court order and any Liens that are required to protect or
enforce any rights in any administrative, arbitration or other court
proceedings in the ordinary course of business;


 


(14)         Liens contained in purchase
and sale agreements limiting the transfer of assets pending the closing of the
transactions contemplated thereby;


 


(15)         Liens that may be deemed to
exist by virtue of contractual provisions that restrict the ability of the
Company or any of its Subsidiaries from granting or permitting to exist Liens
on their respective assets; and


 


(16)         Liens securing the Existing
Note Obligations under the Existing Notes Documents.


 


21

















 


“Permitted Refinancing
Indebtedness” means any Indebtedness of the Company or any of its
Restricted 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 Restricted Subsidiaries (other than
intercompany Indebtedness); provided that:


 


(1)           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 and unpaid interest on the Indebtedness and the amount of all
fees and expenses, including premiums, incurred in connection therewith);


 


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


 


(3)           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


 


(4)           such Indebtedness is
incurred either by the Company or by the Restricted Subsidiary of the Company
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.


 


“Private Placement Legend”
means the legend set forth in Section 2.06(f)(i) hereof to be
placed on all Notes issued under this Indenture except where otherwise
permitted by the provisions of this Indenture.


 


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


 


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


 


“Regulation S Global Note” means a Global
Note substantially in the form of Exhibit A hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will be issued in
a denomination equal to the outstanding principal amount of the Notes sold in
reliance on Rule 903.


 


“Reinvestment Yield” means a
discount rate equal to 0.50% over the yield (1) reported as of 10:00 a.m.
(New York City time) on the date of conversion, on the display designated as


 


22

















 


“Page PX1”
(or such other display as may replace Page PX1 on Bloomberg Financial
Markets) or, if Page PX1 (or its successor screen on Bloomberg Financial
Markets) is unavailable, the Telerate Access Service screen which corresponds
most closely to Page PX1 for the most recently issued actively traded U.S.
Treasury securities having a maturity closest to November 15, 2010 (in the
case of Section 4.05(e) of this Indenture), or (2) if such
yields are not reported as of such time or the yields reported as of such time
are not ascertainable (including by way of interpolation), the Treasury
Constant Maturity Series Yields reported, for the latest day for which
such yields have been so reported as of the date of the conversion, in Federal
Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a maturity
closest to November 15, 2010 (in the case of Section 4.05(e) of
this Indenture). Such yield will be determined, if necessary, by (A) converting
U.S. Treasury bill quotations to bond equivalent yields in accordance with
accepted financial practice and (B) interpolating linearly between (x) the
actively traded U.S. Treasury security with the maturity closest to and later
than the period from the date of such conversion to November 15, 2010 (in
the case of Section 4.05(e) of this Indenture) and (y) the
actively traded U.S. Treasury security with the maturity closest to and earlier
than November 15, 2010 (in the case of Section 4.05(e) of this
Indenture). The Reinvestment Yield shall be rounded to the number of decimal
places as appears in the interest rate of the applicable note.


 


“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 Definitive
Note” means a Definitive Note bearing the Private Placement Legend.


 


“Restricted Global Note” means the 144A
Global Note, the IAI Global Note and the Regulation S Global Note, each of
which shall bear the Private Placement Legend.


 


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


 


“Restricted Note” means a
Restricted Definitive Note or Restricted Global Note.


 


“Restricted Subsidiary” of any Person
means any Subsidiary of such Person which at the time of determination is not
an Unrestricted Subsidiary.


 


“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).


 


“Rule 903” means Rule 903
promulgated under the Securities Act (or any successor provision promulgated by
the SEC).


 


23

















 


“Rule 904” means Rule 904
promulgated under the Securities Act (or any successor provision promulgated by
the SEC).


 


“SEC” means the
Securities and Exchange Commission.


 


“Secured Indebtedness
Documents” means the Note Documents, the Existing Notes
Documents and the Working Capital Facility Documents.


 


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


 


“Security Agreement” means the
collateral agreement, substantially in the form of Exhibit K hereto, as
amended, modified, superseded, reinstated, succeeded or replaced from time to
time in accordance with its terms and the terms of this Indenture, entered into
on the Exchange Offer Completion Date, among FiberTower Corporation, the subsidiaries
of FiberTower Corporation from time to time party thereto, and the Collateral
Agent.


 


“Senior Lenders” means the
Persons holding Working Capital Facility Indebtedness.


 


“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 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:


 


(1)           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


 


(2)           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).


 


“Termination of Trading” will be deemed
to have occurred if the Common Stock (or other common stock into which the
Notes are then convertible) is neither listed for trading on a United States
national securities exchange nor approved for trading on the Nasdaq Global
Market for a ninety (90)-day period.


 


“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.


 


24

















 


“Trading Day” means (i) if
the Common Stock is quoted on the Nasdaq Global Market or any system of
automated dissemination of quotations of securities prices, days on which
trades may be effected through such system, (ii) if the 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 Common Stock is not listed on a national or
regional securities exchange or quoted on the Nasdaq Global Market or any
system of automated dissemination of quotation of securities prices, days on
which the 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 Common Stock are
available.


 


“Trustee” means Wells
Fargo Bank, National Association, 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.


 


“Unrestricted Definitive
Note” means a Definitive Note that does not bear and is not required to bear
the Private Placement Legend.


 


“Unrestricted Global Note” means a Global
Note that does not bear and is not required to bear the Private Placement
Legend.


 


“Unrestricted Subsidiary” means any
Subsidiary of the Company that is designated by the Board of Directors of the
Company as an Unrestricted Subsidiary pursuant to a Board Resolution, but only
to the extent such Subsidiary:


 


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


 


(2)           except as permitted by Section 5.11
hereof, is not a party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company unless the terms
of any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such Restricted Subsidiary other than those that
might be obtained at the time from Persons who are not Affiliates of the
Company or any Restricted Subsidiary of the Company;


 


(3)           is a Person with respect to
which neither the Company nor any of its Restricted Subsidiaries has any direct
or indirect obligation (A) to subscribe for additional Equity Interests or
(B) to maintain or preserve such Person’s financial condition or to cause
such Person to achieve any specified levels of operating results; and


 


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


 


Any designation of a
Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to
the Trustee by filing with the Trustee a certified copy of the Board Resolution
giving effect to such designation and an Officer’s Certificate certifying that
such designation complied with the preceding conditions and was permitted by Section 5.07
hereof.  If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an


 


25

















 


Unrestricted
Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary will be
deemed to be incurred by a Restricted Subsidiary of the Company as of such date
and, if such Indebtedness is not permitted to be incurred as of such date under
Section 5.09 hereof, the Company will be in default of such covenant. The
Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation will
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and
such designation will only be permitted if (A) such Indebtedness is
permitted under Section 5.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period, and (B) no Default or Event of Default would be in
existence following such designation.


 


“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.


 


“Working Capital Facility” means, one or
more debt facilities, up to an aggregate principal amount of $50.0 million,
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.


 


“Working Capital Facility
Collateral Agent” means, at any time, the Person serving at such time
as the “Collateral Agent” under the Working Capital Facility or any other
representative then most recently designated in accordance with the applicable
provisions of the Working Capital Facility, together with its successors in such
capacity.


 


“Working Capital Facility
Documents” means the Working Capital Facility, the Working
Capital Facility Security Documents, and all agreements governing or relating
to any Working Capital Facility Obligations.


 


“Working Capital Facility
Indebtedness” means:


 


(1)           Indebtedness of the Company,
the Guarantors and the guarantors under the Working Capital Facility that was
permitted to be incurred and secured under each applicable Secured Indebtedness
Document (or as to which the lenders under the Working Capital Facility
obtained an Officer’s Certificate at the time of incurrence to the effect that
such Indebtedness was permitted to be incurred and secured by all applicable
Secured Indebtedness Documents); and


 


(2)           Hedging Obligations incurred
to hedge or manage interest rate risk with respect to Working Capital Facility
Indebtedness; provided, that:


 


A.            such Hedging Obligations are
secured by a Working Capital Facility Lien on all of the assets that secure
Indebtedness under the Working Capital Facility; and


 


26

















 


B.            such Working Capital
Facility Lien is senior to or on a parity with the Working Capital Facility
Liens securing Indebtedness under the Working Capital Facility.


 


“Working Capital Facility
Lien” means a Lien granted by a Working Capital Facility Security Document to
the Working Capital Facility Collateral Agent (or any Senior Lender or other
representative of the Senior Lenders), at any time, upon any assets of the
Company, any Guarantor or any guarantor under the Working Capital Facility to
secure Working Capital Facility Obligations.


 


“Working Capital Facility
Obligations” means the Working Capital Facility Indebtedness and
all other Obligations in respect of Working Capital Facility Indebtedness.


 


“Working Capital Facility
Security Documents” means the Intercreditor Agreement and all security
agreements, pledge agreements, collateral assignments, mortgages, deeds of
trust, collateral agency agreements, control agreements or other grants or transfers
for security executed and delivered by the Company or any Guarantor creating
(or purporting to create) a Working Capital Facility Lien upon collateral in
favor of the Working Capital Facility Collateral Agent, in each case, as
amended, modified, renewed, restated or replaced, in whole or in part, from
time to time, in accordance with its terms.


 


27
















 


Section 1.02.        Other Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “90% Tender Condition”

  	
   

  	
  3.11(b)(iii)

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  5.11

  	
   

  
	
  “Asset Sale Offer”

  	
   

  	
  3.09

  	
   

  
	
  “Authentication Order”

  	
   

  	
  2.02

  	
   

  
	
  “Certificate of
  Conversion & Restricted Transfer”

  	
   

  	
  4.03(d)

  	
   

  
	
  “Conversion Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Conversion Date”

  	
   

  	
  4.03(a)

  	
   

  
	
  “Conversion Notice”

  	
   

  	
  4.03(a)(i)

  	
   

  
	
  “Conversion Rate”

  	
   

  	
  4.02(a)

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  9.03

  	
   

  
	
  “Designated Event Expiration
  Time”

  	
   

  	
  3.08(b)

  	
   

  
	
  “Designated Event Make-Whole
  Amount”

  	
   

  	
  4.05(e)

  	
   

  
	
  “Designated Event Notice”

  	
   

  	
  3.08(b)

  	
   

  
	
  “Designated Event Repurchase
  Date”

  	
   

  	
  3.08(a)

  	
   

  
	
  “Distributed Assets”

  	
   

  	
  4.05(a)(iv)

  	
   

  
	
  “Event of Default”

  	
   

  	
  7.01

  	
   

  
	
  “Excess Proceeds”

  	
   

  	
  5.10

  	
   

  
	
  “Expiration Date”

  	
   

  	
  4.05(a)(vii)

  	
   

  
	
  “incur”

  	
   

  	
  5.09

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  9.02

  	
   

  
	
  “Mandatory Redemption”

  	
   

  	
  3.11(a)

  	
   

  
	
  “Mandatory Redemption Date”

  	
   

  	
  3.11(e)(i)

  	
   

  
	
  “Mandatory Redemption Notice”

  	
   

  	
  3.11(e)

  	
   

  
	
  “Mandatory Redemption Price”

  	
   

  	
  3.11(d)

  	
   

  
	
  “Offer Amount”

  	
   

  	
  3.09

  	
   

  
	
  “Offer Period”

  	
   

  	
  3.09

  	
   

  
	
  “Option of Holder to Elect
  Repurchase”

  	
   

  	
  3.08(c)(i)

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Payment Default”

  	
   

  	
  7.01

  	
   

  
	
  “Premises”

  	
   

  	
  5.21

  	
   

  
	
  “Purchase Date”

  	
   

  	
  3.09

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Restricted Payments”

  	
   

  	
  5.07

  	
   

  
	
  “Settlement”

  	
   

  	
  4.03(b)

  	
   

  
	
  “Subsidiary Interests”

  	
   

  	
  4.05(a)(v)

  	
   

  
	
  “Trigger Event”

  	
   

  	
  4.12

  	
   

  



 


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:


 


28

















 


“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.


 


ARTICLE 2.

THE NOTES


 


Section 2.01.        Form and Dating.


 


(a)           General.  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.


 


29

















 


(b)           Global
Notes.  Notes issued in global form
will be substantially in the form of Exhibit A hereto (including the
Global Note Legend thereon and the “Schedule of Exchanges of Interests in the
Global Note” attached thereto).  Notes
issued in definitive form will be substantially in the form of Exhibit A
hereto (but without the Global Note Legend thereon and the “Schedule of
Exchanges of Interests in the Global Note” attached thereto).  Each Global Note will represent such of the
outstanding Notes as will be specified therein and each will provide that it
represents the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.


 


(c)           Euroclear
and Clearstream Procedures Applicable.  The provisions of the “Operating Procedures
of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear”
and the “General Terms and Conditions of Clearstream Banking” and “Customer
Handbook” of Clearstream will be applicable to transfers of beneficial
interests in Global Notes that are held by Participants through Euroclear and
Clearstream.


 


Section 2.02.        Execution and Authentication.


 


An
Officer shall sign the Notes for the Company by manual or facsimile
signature.  The Company’s seal may be
reproduced on the Notes and may be in facsimile form.


 


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 an Officer (an “Authentication Order”) accompanied by an Officer’s
Certificate, authenticate Notes for original issue that may be validly issued
under this Indenture, including any Additional Notes issued 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 attached as Exhibit A hereto
or, subject to the satisfaction of all of the covenants in this Indenture,
including, without limitation, Sections 5.09 and 5.12 of this Indenture, in
each case in the form of Exhibit A hereto, as part of the same series as
the Initial Notes.  The aggregate
principal amount of Notes outstanding at any time may not exceed the aggregate
principal amount of Notes permitted to be incurred under this Indenture and
authorized for issuance by the Company pursuant to one or more Authentication
Orders, 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.


 


30

















 


Section 2.03.        Registrar, Paying Agent, Conversion Agent and
Depositary.


 


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 “Conversion Agent” includes
any additional conversion agent.  The
Company may change any Paying Agent, Conversion Agent or Registrar without
notice to the Holders.  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 and to act as the Custodian with respect to the Global
Notes and as agent for service of notices and demands.  The Company initially appoints DTC to act as
Depositary with respect to the Global Notes.


 


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 and
Aggregate Accreted Principal Amount, 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 (7) 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 and the Company shall otherwise comply with TIA §
312(a).


 


Section 2.06.        Transfer and Exchange.


 


(a)           Transfer
and Exchange of Global Notes.  A Global Note may not be transferred except
as a whole by the Depositary to a nominee of the Depositary, by a nominee of
the


 


31

















 


Depositary
to the Depositary or to another nominee of the Depositary, or by the Depositary
or any such nominee to a successor Depositary or a nominee of such successor
Depositary.  All Global Notes will be
exchanged by the Company for Definitive Notes if:


 


(i)            the Company delivers to the
Trustee notice from the Depositary that it is unwilling or unable to continue
to act as Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not appointed
by the Company within 120 days after the date of such notice from the
Depositary;


 


(ii)           the Company in its sole
discretion determines that the Global Notes (in whole but not in part) should
be exchanged for Definitive Notes and delivers a written notice to such effect
to the Trustee; or


 


(iii)          there has occurred and is
continuing a Default or Event of Default with respect to the Notes.


 


Upon
the occurrence of either of the preceding events in (i) or (ii) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee.  Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof.  Every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note.  A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b), (c) or (d) hereof.


 


(b)           Transfer
and Exchange of Beneficial Interests in the Global Notes.  The transfer and exchange of beneficial
interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures.  Beneficial interests in the Restricted Global
Notes will be subject to restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act.  Transfers of beneficial interests in the
Global Notes also will require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs, as
applicable:


 


(i)            Transfer of Beneficial
Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend.  Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note.  No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in
this Section 2.06(b)(i).


 


(ii)           All Other Transfers and
Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the Registrar either:


 


(1)           both:


 


32

















 


A.            a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to credit or cause to
be credited a beneficial interest in another Global Note in an amount equal to
the beneficial interest to be transferred or exchanged; and


 


B.            instructions given in
accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or


 


(2)           both:


 


A.            a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged; and


 


B.            instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (2)(A) above.


 


Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.


 


(iii)          Transfer of Beneficial
Interests to Another Restricted Global Note.  A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:


 


(1)           if the transferee shall take
delivery in the form of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;


 


(2)           if the transferee shall take
delivery in the form of a beneficial interest in the Regulation S Global Note,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; or


 


(3)           if the transferee shall take
delivery in the form of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (3) thereof;


 


(iv)          Transfer and Exchange of
Beneficial Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note.  A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest


 


33

















 


in an Unrestricted Global
Note or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:


 


A.            if the holder of such
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, including
the certification in item (1)(a) thereof; or


 


B.            if the holder of such
beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof;


 


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


 


If
any such transfer is effected pursuant to subparagraph (ii) or (iv) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to subparagraph (ii) or (iv) above.


 


Beneficial
interests in an Unrestricted Global Note cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form of, a beneficial
interest in a Restricted Global Note.


 


(c)           Transfer
or Exchange of Beneficial Interests for Definitive Notes.


 


(i)            Beneficial Interests in
Restricted Global Notes to Restricted Definitive Notes.  If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:


 


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


 


34

















 


(2)           if such beneficial interest
is being transferred to a QIB in accordance with Rule 144A, a certificate
to the effect set forth in Exhibit B hereto, including the certifications
in item (1) thereof;


 


(3)           if such beneficial interest
is being transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2) thereof;


 


(4)           if such beneficial interest
is being transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;


 


(5)           if such beneficial interest
is being transferred to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities Act other than
those listed in clauses (2) through (4) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;


 


(6)           if such beneficial interest
is being transferred to the Company or any of its Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto, including the certifications
in item (3)(b) thereof; or


 


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


 


the
Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Note in the appropriate
principal amount.  Any Definitive Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect Participant.  The Trustee shall deliver such Definitive
Notes to the Persons in whose names such Notes are so registered.  Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall
bear the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.


 


(ii)           Beneficial Interests in
Restricted Global Notes to Unrestricted Definitive Notes.  A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note only if the Registrar receives the following:


 


35

















 


A.            if the holder of such
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the certifications
in item (1)(b) thereof; or


 


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


 


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


 


(iii)          Beneficial Interests in
Unrestricted Global Notes to Unrestricted Definitive Notes.  If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee
will cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company will execute and the Trustee will authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount.  Any Definitive Note
issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) will
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests through
instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant.  The
Trustee will deliver such Definitive Notes to the Persons in whose names such
Notes are so registered.  Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) will
not bear the Private Placement Legend.


 


(d)           Transfer
and Exchange of Definitive Notes for Beneficial Interests.


 


(i)            Restricted Definitive Notes
to Beneficial Interests in Restricted Global Notes.  If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following documentation:


 


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


 


36

















 


(2)           if such Restricted
Definitive Note is being transferred to a QIB in accordance with Rule 144A,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;


 


(3)           if such Restricted
Definitive Note is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in
item (2) thereof;


 


(4)           if such Restricted
Definitive Note is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;


 


(5)           if such Restricted
Definitive Note is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (2) through (4) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;


 


(6)           if such Restricted
Definitive Note is being transferred to the Company or any of its Subsidiaries,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or


 


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


 


the
Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (1) above,
the appropriate Restricted Global Note, in the case of clause (2) above,
the 144A Global Note, in the case of clause (3) above, the Regulation S
Global Note, and in all other cases, the IAI Global Note.


 


(ii)           Restricted Definitive Notes
to Beneficial Interests in Unrestricted Global Notes.  A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note only if the
Registrar receives the following:


 


A.            if the Holder of such
Definitive Note proposes to exchange such Note for a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(c) thereof; or


 


B.            if the Holder of such
Definitive Note proposes to transfer such Note to a Person who shall take
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note, a certificate


 


37

















 


from such holder in the form
of Exhibit B hereto, including the certifications in item (4) thereof;


 


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


 


Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee will cancel the
Definitive Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.


 


(iii)          Unrestricted Definitive
Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Note to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time.  Upon receipt of a request for such an
exchange or transfer, the Trustee will cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate principal
amount of one of the Unrestricted Global Notes.


 


If
any such exchange or transfer from a Definitive Note to a beneficial interest
is effected pursuant to subparagraphs (ii) or (iii) of this
subsection (d) at a time when an Unrestricted Global Note has not yet been
issued, the Company will issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee will authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.


 


(e)           Transfer
and Exchange of Definitive Notes for Definitive Notes.  Upon request by a Holder of Definitive Notes
and such Holder’s compliance with the provisions of this Section 2.06(e),
the Registrar will register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. 
In addition, the requesting Holder must provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).


 


(i)            Restricted Definitive Notes
to Restricted Definitive Notes.  Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof
in the form of a Restricted Definitive Note if the Registrar receives the
following:


 


(1)           if the transfer will be made
pursuant to Rule 144A, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (1) thereof;


 


38
















 


(2)                                  if the transfer
will be made pursuant to Rule 903 or Rule 904, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; or


 


(3)                                  if the transfer
will be made pursuant to any other exemption from the registration requirements
of the Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.


 


(ii)           Restricted Definitive Notes to
Unrestricted Definitive Notes.  Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if the
Registrar receives the following:


 


A.                                   if the Holder
of such Restricted Definitive Note proposes to exchange such Note for an
Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or


 


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


 


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


 


(iii)          Unrestricted Definitive Notes to
Unrestricted Definitive Notes.  A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Notes.  Upon receipt of a request to register such a
transfer, the Registrar shall register the Unrestricted Definitive Notes
pursuant to the instructions from the Holder thereof.


 


Concurrently
with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company will execute and the Trustee will authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Unrestricted
Definitive Notes in the appropriate principal amount.


 


(f)            Legends.  The
following legends will appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture.


 


39

















 


(i)            Private Placement Legend.


 


(1)                                  Except as
permitted by subparagraph (2) below, each Global Note and each Definitive
Note (and all Notes issued in exchange therefore or substitution thereof) shall
bear the legend in substantially the following form:


 


“THE
SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON AN EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT.  THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (a) IN
THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (c) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)) THAT IS PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO FIBERTOWER CORPORATION THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER OF THE
SECURITY SO REQUESTS), (2) TO THE


 


40

















 


ISSUER
OF THE SECURITY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH
IN (A) ABOVE.”


 


(2)                                  Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to
subsections (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of
this Section 2.06 (and all Notes issued in exchange therefore or
substitution thereof) will not bear the Private Placement Legend.


 


(ii)           Global Note Legend.  Each Global Note will bear a legend in
substantially the following form:


 


“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY.


 


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


 


41

















 


(g)           Cancellation
and/or Adjustment of Global Notes. 
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note will be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof.  At any
time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive Notes,
the principal amount of Notes represented by such Global Note will be reduced
accordingly and an endorsement will be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note, such other Global Note will be increased accordingly and
an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.


 


(h)           General
Provisions Relating to Transfers and Exchanges.


 


(i)            To permit registrations of transfers
and exchanges, the Company will execute and the Trustee will authenticate
Global Notes and Definitive Notes upon receipt of an Authentication Order in
accordance with Section 2.02 hereof or at the Registrar’s request.


 


(ii)           No service charge will be made to a
holder of a beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 3.08, 3.09, 5.10 and 10.05 hereof).


 


(iii)          The Registrar will not be required to
register the transfer of or exchange of any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.


 


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


 


(v)           Neither the Registrar nor the Company
will be required:


 


(1)                                  to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business fifteen (15) days before the day of any selection of
Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection;


 


(2)                                  to register the
transfer of or to exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part; or


 


42

















 


(3)                                  to register the
transfer of or to exchange a Note between a record date and the next succeeding
interest payment date.


 


(vi)          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
and Aggregate Accreted Principal Amount of and interest, premium, if any, 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.


 


(vii)         The Trustee will authenticate Global
Notes and Definitive Notes in accordance with the provisions of Section 2.02
hereof.


 


(viii)        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.


 


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 Trustee or 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, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof,
and those described in this Section 2.08 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 protected purchaser.


 


If
the principal amount or Aggregate Accreted 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.


 


43

















 


If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption 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.


 


Section 2.09.                         Treasury Notes.


 


In
determining whether the Holders of the required principal amount or Aggregate
Accreted Principal Amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company or any Guarantor, or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any Guarantor, 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) according to its standard
procedures.  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 Agreements, 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 ten (10) days prior to the related payment
date for such defaulted interest.  At
least fifteen (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


 


44

















 


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.


 


Section 2.13.                         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 or exchange 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 or
exchange 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.                         Notices to Trustee.


 


If
the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it must furnish to the Trustee, at
least forty-five (45) days but not more than sixty (60) days before a
redemption date, an Officer’s Certificate setting forth:


 


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


 


(2)                                  the redemption
date;


 


(3)                                  the principal
amount of Notes to be redeemed; and


 


(4)                                  the redemption
price.


 


Section 3.02.                         Selection of Notes to Be Redeemed
or Purchased.


 


If
the Company chooses to redeem less than all of the Notes, selection of the
Notes for redemption will be made by the Trustee either:


 


(1)                                  in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed; or


 


(2)                                  if the Notes
are not then listed on a national securities exchange, on a pro rata basis or by such method as the Trustee may
reasonably determine is fair and appropriate.


 


In
the event of partial redemption or purchase by lot, the particular Notes to be
redeemed or purchased will be selected, unless otherwise provided herein, not
less than thirty (30) nor more than sixty (60) days prior to the redemption or
purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase.


 


The
Trustee will promptly notify the Company in writing of the Notes selected for
redemption or purchase and, in the case of any Note selected for partial
redemption or purchase, the principal amount thereof to be redeemed or
purchased.  Notes and portions of Notes
selected


 


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will be in amounts of $l,000 or whole multiples of $l,000; except that
if all of the Notes of a Holder are to be redeemed or purchased, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed or purchased. 
Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption or purchase also apply to
portions of Notes called for redemption or purchase.


 


Section 3.03.                         Notice of Redemption.


 


At
least thirty (30) days but not more than sixty (60) days before a redemption
date, the Company will mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its
registered address, except that redemption notices may be mailed more than
sixty (60) days prior to a redemption date if the notice is issued in
connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 9 or 13 hereof.


 


The
notice will identify the Notes to be redeemed and will state:


 


(1)                                  the redemption
date;


 


(2)                                  the redemption
price;


 


(3)                                  the Conversion
Price;


 


(4)                                  if any Note is
being redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion will be
issued upon cancellation of the original Note (or appropriate adjustments to
the amount and beneficial interests in the Global Note will be made);


 


(5)                                  the name and
address of the Paying Agent and the Conversion Agent;


 


(6)                                  that Holders who
wish to convert Notes must comply with the procedures in Article 4 of this
Indenture;


 


(7)                                  that Notes
called for redemption must be surrendered to the Paying Agent to collect the
redemption price;


 


(8)                                  that, unless
the Company defaults in making such redemption payment, interest on Notes
called for redemption ceases to accrue on and after the redemption date;


 


(9)                                  the paragraph
of the Notes and/or Section of this Indenture pursuant to which the Notes
called for redemption are being redeemed; and


 


(10)                            that no
representation is made as to the correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Notes.


 


At
the Company’s request, the Trustee will give the notice of redemption in the
Company’s name and at its expense; provided, however, that the Company has delivered to the


 


46

















 


Trustee, at least forty-five (45) days prior to the redemption date, an
Officer’s Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.


 


Section 3.04.                         Effect of Notice of Redemption.


 


Once
notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. 
A notice of redemption may not be conditional.


 


Section 3.05.                         Deposit of Redemption or Purchase
Price.


 


One
Business Day prior to the redemption or purchase date, the Company will deposit
with the Trustee or with the Paying Agent money sufficient to pay the
redemption or purchase price of and accrued interest on all Notes to be
redeemed or purchased on that date.  The
Trustee or the Paying Agent will promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption or purchase price of, and accrued
interest on, all Notes to be redeemed or purchased.


 


If
the Company complies with the provisions of the preceding paragraph, on and
after the redemption or purchase date, interest will cease to accrue on the
Notes or the portions of Notes called for redemption or purchase.  If a Note is redeemed or purchased on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Note was registered at the close of business on such record
date.  If any Note called for redemption
or purchase is not so paid upon surrender for redemption or purchase because of
the failure of the Company to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the redemption or purchase date
until such principal is paid, and to the extent lawful on any interest not paid
on such unpaid principal, in each case at the rate provided in the Notes and in
Section 5.01 hereof.


 


Section 3.06.                         Notes Redeemed or Purchased in
Part.


 


Upon
surrender of a Note that is redeemed or purchased in part, the Company will
issue and, upon receipt of an Authentication Order, the Trustee will
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed or unpurchased portion of the Note
surrendered (or appropriate adjustment to the amount and beneficial interest in
the Global Note will be made).


 


Section 3.07.                         Optional Redemption.


 


(a)           The Notes will not
be redeemable at the Company’s option prior to November 15, 2010.


 


(b)           The Company may
redeem the Notes, at its option, in whole or in part at any time on or after November 15,
2010, upon not less than thirty (30) nor more than sixty (60) days’ notice, at
100% of the Aggregate Accreted Principal Amount, together with accrued and
unpaid interest thereon, up to the redemption date; provided
that for twenty (20) of the preceding thirty (30) consecutive Trading Days, the
Common Stock has had (i) a Closing Sale Price at least equal to 1.50 times
the then effective Conversion Price and (ii) a daily trading volume for
each such Trading Day, when multiplied by the Closing Sale Price for such
Trading Day, which equals at


 


47

















 


least
$8.0 million.  For so long as at least
$215.0 aggregate principal amount of the Notes remains outstanding, the Company
may not redeem more than 50% of the then outstanding principal amount of Notes
in any ninety (90)-day period.


 


(c)           Any redemption
pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.


 


Section 3.08.                         Repurchase at Option of Holder
Upon a Designated Event.


 


(a)           If there shall occur
a Designated Event at any time prior to the maturity of the Notes, then each
Holder shall have the right, at such Holder’s option, to require the Company to
repurchase all of such Holder’s Notes, or any portion thereof that is a
multiple of $1,000 principal amount, for cash on a date designated by the
Company (the “Designated Event Repurchase Date”)
that is not less than twenty (20) nor more than thirty (30) days after the date
of the Designated Event Notice (as defined in Section 3.08(b)) for such
Designated Event at a repurchase price equal to 101% of the Aggregate Accreted
Principal Amount of the Notes to be repurchased, plus accrued and unpaid
interest up to, but excluding, the Designated Event Repurchase Date.  Notwithstanding the foregoing, if a
Designated Event Repurchase Date falls after an interest payment record date
but on or prior to the corresponding interest payment date, the Company will
pay the full amount of accrued and unpaid interest on such interest payment
date to the Holder of record at the close of business on the corresponding
record date.  Notwithstanding the
foregoing, no Notes may be surrendered for repurchase pursuant to this Section 3.08
in connection with a merger, consolidation or other transaction effected solely
for the purpose of changing the Company’s jurisdiction of incorporation to any
other state within the United States.


 


(b)           Before the fifteenth
(15th) day after the occurrence of a Designated Event, the Company, or at its
written request (which must be received by the Trustee at least five (5) Business
Days prior to the date the Trustee is requested to give notice as described
below, unless the Trustee shall agree in writing to a shorter period), the
Trustee, in the name of and at the expense of the Company, shall mail or cause
to be mailed to all Holders of record on the date of the Designated Event a
notice (the “Designated Event Notice”) of the
occurrence of such Designated Event and of the repurchase right at the option
of the Holders arising as a result thereof. 
If the Company shall give such notice, the Company shall also deliver a
copy of the Designated Event Notice to the Trustee at such time as it is mailed
to Holders.


 


Each
Designated Event Notice shall specify the circumstances constituting the
Designated Event, the Designated Event Repurchase Date, the price at which the
Company shall be obligated to repurchase Notes, that the Holder must exercise
the repurchase right on or prior to the close of business on the Designated
Event Repurchase Date (the “Designated Event
Expiration Time”), that the Holder shall have the right to withdraw
any Notes surrendered prior to the Designated Event Expiration Time, if the
Notes are then convertible, that Notes as to which an Option of Holder to Elect
Repurchase (as hereinafter defined) has been given may be converted only if the
Option of Holder to Elect Repurchase is withdrawn in accordance with the terms
of this Indenture, a description of the procedure that a Holder must follow to
exercise such repurchase right and to withdraw any surrendered Notes, the place
or places where the Holder is to surrender such Holder’s Notes, the amount of
interest accrued and unpaid on each Note to the Designated Event Repurchase
Date and the CUSIP number or numbers of the Notes (if then generally in use).


 


48
















 


No
failure of the Company to give the foregoing notices and no defect therein
shall limit the Holders’ repurchase rights or affect the validity of the
proceedings for the repurchase of the Notes pursuant to this Section 3.08.


 


(c)           Repurchases of Notes
under this Section 3.08 shall be made, at the option of the Holder
thereof, upon:


 


(i)            delivery to the Trustee at the
Corporate Trust Office of the Trustee (or other Paying Agent appointed by the
Company) by a Holder of a duly completed and executed notice (the “Option of Holder to Elect Repurchase”) in the form set forth
on the reverse of the Note prior to the Designated Event Expiration Time; and


 


(ii)           book-entry transfer or delivery of
the Notes, together with necessary endorsements, to the Trustee (or other
Paying Agent appointed by the Company) at any time simultaneous to or after
delivery of the Option of Holder to Elect Repurchase (together with all
necessary endorsements) at the Corporate Trust Office of the Trustee (or other
Paying Agent appointed by the Company) in The City of New York, Borough of
Manhattan, such delivery being a condition to receipt by the Holder of the
repurchase price therefore; provided that such repurchase price shall be so
paid pursuant to this Section 3.08 only if the Note so delivered to the
Trustee (or other Paying Agent appointed by the Company) shall conform in all
respects to the description thereof in the related Option of Holder to Elect
Repurchase.


 


The
Company shall purchase from the Holder thereof, pursuant to this Section 3.08,
a portion of a Note, if the principal amount of such portion is $1,000 or a
whole multiple of $1,000.  Provisions of
this Indenture that apply to the purchase of all of a Note also apply to the
purchase of such portion of such Note.


 


Upon
presentation of any Note repurchased in part only, the Company shall execute
and, upon the Company’s written direction to the Trustee, the Trustee shall
authenticate and make available for delivery to the Holder thereof, at the
expense of the Company, a new Note or Notes, of authorized denominations, in
aggregate principal amount equal to the portion of the Notes presented that was
not repurchased.


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Trustee (or other
Paying Agent appointed by the Company) the Option of Holder to Elect Repurchase
contemplated by this Section 3.08 shall have the right to withdraw such
Option of Holder to Elect Repurchase at any time prior to the Designated Event
Expiration Time by delivery of a written notice of withdrawal to the Trustee
(or other Paying Agent appointed by the Company) in accordance with Section 3.08(d) below.  Notes in respect of which an Option of Holder
to Elect Repurchase has been given by the Holder thereof may not be converted
pursuant to Article 4 hereof on or after the date of the delivery of such
Option of Holder to Elect Repurchase unless such Option of Holder to Elect
Repurchase has first been validly withdrawn.


 


The
Trustee (or other Paying Agent appointed by the Company) shall promptly notify
the Company of the receipt by it of any Option of Holder to Elect Repurchase or
written notice of withdrawal thereof.


 


For
a Note, other than a Global Note, to be so repurchased at the option of the
Holder, the Company must receive at the office or agency of the Company
maintained for that purpose or, at


 


49

















 


the option of such Holder, the Corporate Trust Office in The City of
New York, Borough of Manhattan, such Note with the form entitled “Option of
Holder to Elect Repurchase” on the reverse thereof duly completed, together
with such Notes duly endorsed for transfer, on or before the Designated Event
Expiration Time.  All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Note
for repurchase shall be determined by the Company, whose determination shall be
final and binding absent manifest error.


 


(d)           An Option of Holder
to Elect Repurchase may be withdrawn by means of a written notice of withdrawal
delivered to the Corporate Trust Office of the Trustee (or other Paying Agent
appointed by the Company) in accordance with the Option of Holder to Elect
Repurchase at any time prior to the Designated Event Expiration Time,
specifying:


 


(i)            the principal amount of the Note
with respect to which such notice of withdrawal is being submitted;


 


(ii)           the certificate number, if any of the
Note in respect of which such notice of withdrawal is being submitted, or the
appropriate Depositary information if the Note in respect of which notice of
withdrawal is being submitted is represented by a Global Note; and


 


(iii)          the principal amount, if any, of such
Note that remains subject to the original Option of Holder to Elect Repurchase.


 


(e)           The Company shall
deposit with the Trustee or with one or more Paying Agents (or, if the Company
is acting as its own Paying Agent, set aside, segregate and hold in trust as
provided in Section 2.04 hereof) an amount of money sufficient to
repurchase on the Business Day immediately preceding the Designated Event
Repurchase Date all the Notes to be repurchased on such date at the appropriate
repurchase price, together with accrued and unpaid interest up to, but
excluding, the Designated Event Repurchase Date; provided
that if such payment is made on the Designated Event Repurchase Date it must be
received by the Trustee or Paying Agent, as the case may be, by 10:00 a.m.
New York City time, on such date. 
Payment for Notes surrendered for repurchase (and not withdrawn) prior
to the Designated Event Expiration Time will be made promptly (but in no event
more than five (5) Business Days) following the later of (x) the
Business Day immediately following the Designated Event Repurchase Date, and (y) the
time of book-entry transfer or delivery of the Note surrendered for repurchase,
by (i) mailing checks for the amount payable to the Holders of such Notes
entitled thereto as they shall appear in the register of Holders or (ii) on
any Global Note by wire transfer of immediately available funds to the account
of the Depositary or its nominee.


 


If
on the Business Day immediately following the Designated Event Repurchase Date
the Trustee or other Paying Agent appointed by the Company, or the Company if
the Company is acting as the Paying Agent, holds money sufficient to repurchase
all of the Notes or portions thereof that are to be purchased as of the
Designated Event Repurchase Date, then, on and after such date, (i) the
Notes will cease to be outstanding, (ii) interest on the Notes will cease
to accrue, and (iii) all other rights of the Holders of such Notes will
terminate, other than the right to receive the repurchase price upon delivery
of the Notes, in each instance whether or not book-entry transfer of the Notes
has been made or the Notes have been delivered to the Trustee or Paying Agent.


 


50

















 


(f)            The Company will
comply with the requirements of Rule 13e-4, Rule 14e-1 and any other
tender offer rules under the Exchange Act to the extent applicable and
file a Schedule TO or any other required schedule or form under the Exchange
Act to the extent then applicable in connection with the repurchase rights of
the Holders in the event of a Designated Event. 
To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Indenture governing an offer to purchase
upon a Designated Event, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations
under the provisions of this Indenture by virtue of such compliance.


 


(g)           Notwithstanding this
Section 3.08, no Notes may be repurchased by the Company at the option of
the Holders upon a Designated Event if the principal amount of the Notes has
been accelerated, and such acceleration has not been rescinded, on or prior to
such date.


 


Section 3.09.                         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 and to all holders of other senior
secured Indebtedness that is pari passu 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 amount
of Notes and such other pari passu Indebtedness that may be purchased out of
the Excess Proceeds (an “Asset Sale Offer”),
it shall follow the procedures specified below.


 


The
Asset Sale Offer shall remain open for a period of twenty (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 (3) Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall purchase the Aggregate
Accreted 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 Asset
Sale 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 Asset Sale Offer.


 


Upon
the commencement of an Asset Sale 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 Asset Sale Offer.  The
Asset Sale Offer shall be made to all Holders. 
The notice, which shall govern the terms of the Asset Sale Offer, shall
state:


 


(1)                                  that the Asset
Sale Offer is being made pursuant to this Section 3.09 and Section 5.10
hereof and the length of time the Asset Sale Offer shall remain open;


 


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


 


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


 


51

















 


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


 


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


 


(6)                                  that Holders
electing to have a Note purchased pursuant to any Asset Sale Offer shall be
required to surrender the Note, with the form entitled “Option of Holder to
Elect Repurchase” 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;


 


(7)                                  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;


 


(8)                                  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


 


(9)                                  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 Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, and shall deliver to the Trustee an Officer’s Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09.  If the aggregate amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
such other pari passu 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
(3) 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, at
the expense of the Company, in a principal amount equal to any unpurchased
portion of the Note surrendered.  Any
Note not so accepted shall be


 


52

















 


promptly mailed or delivered by the Company to the Holder thereof.  The Company shall publicly announce the
results of the Asset Sale Offer on the Purchase Date.


 


The
Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with each repurchase of Notes
pursuant to an Asset Sale Offer.  To the
extent that the provisions of any securities laws or regulations conflict with
the Asset Sale Offer provisions of this Indenture, the Company will comply with
the applicable securities laws and regulations and will not be deemed to have
breached its obligations under the Asset Sale Offer provisions of this
Indenture by virtue of such compliance.


 


Section 3.10.                         Redemption at Maturity.


 


Unless
previously redeemed (pursuant to this Article 3) or converted (pursuant to
Article 4), the Company will redeem the Notes at 125.411% of their
principal amount on November 15, 2012.


 


Section 3.11.                         Mandatory Redemption.


 


(a)           Mandatory Redemption
Obligation.  The Company shall redeem, in
accordance with the terms of and procedures set forth in this Section 3.11,
all of the outstanding Notes upon the satisfaction or, as set forth in this Section 3.11,
the waiver by the Holders of a majority of the outstanding principal amount of
the Notes, of the conditions set forth in Section 3.11(b).  Such mandatory redemption pursuant to this Section 3.11
is referred to herein as the “Mandatory Redemption.”


 


(b)           Mandatory Redemption
Conditions.  The conditions that must be
satisfied or waived by the Holders of a majority in principal amount of the
Notes in order for the Mandatory Redemption to occur are:


 


(i)            receipt of stockholder approval in
accordance with Nasdaq Stock Market requirements for the issuance of shares of
Common Stock in the Mandatory Redemption;


 


(ii)           receipt of FCC approval for the
change of control of the Company that will result from the issuance of shares
of Common Stock as a portion of the Mandatory Redemption Price;


 


(iii)          consummation of the Exchange Offer for
the Existing Notes, resulting in the exchange of not less than an aggregate of
$264,416,796 in principal amount of the Existing Notes (the “90% Tender Condition”);


 


(iv)          no order, statute, rule, regulation,
executive order, stay, decree, judgment or injunction shall have been enacted,
entered, issued, promulgated or enforced by any court or governmental authority
that prohibits or materially restricts the consummation of the Mandatory
Redemption; and


 


(v)           there shall not have been instituted
or be pending any action, proceeding, application, claim or counterclaim by any
government or governmental authority or agency, domestic or foreign, or by any
other person, domestic or foreign, before any court or governmental regulatory
or administrative agency, authority or tribunal,


 


53

















 


domestic or foreign, that,
in the Company’s reasonable judgment, following the receipt of advice of
counsel, would make the Mandatory Redemption illegal.


 


The
90% Tender Condition may be waived by Holders of a majority in principal amount
of the Notes.  All other conditions to
the Mandatory Redemption set forth in this Section 3.11(b) must be
satisfied and may not be waived by Holders of a majority in principal amount of
the Notes.  If the Mandatory Redemption
has not occurred before the close of business on May 1, 2010, no such
Mandatory Redemption will occur.  The
Company shall use its commercially reasonable efforts to cause each of the
conditions to the Mandatory Redemption set forth in this Section 3.11(b) to
be satisfied as soon as reasonably practicable following the Exchange Offer
Completion Date.


 


(c)           Reverse
Stock Split.  Prior to the
Mandatory Redemption, the Company shall effect a reverse stock split, as
approved by the stockholders of the Company prior to the Exchange Offer
Completion Date, such that the Company shall have a sufficient number of
authorized and unissued shares of Common Stock to pay the Mandatory Redemption
Price.


 


(d)           Mandatory
Redemption Price.  Upon the
satisfaction or waiver of the conditions set forth in Section 3.11(b) and
subject to the terms and conditions of this Section 3.11, the Company
shall redeem the Notes at a redemption price (the “Mandatory
Redemption Price”) per $1,000 principal amount of Notes equal to:


 


(i)            $47.65 in cash,


 


(ii)           1,146.16 shares of Common Stock
(subject to appropriate adjustment for any stock split, reverse stock split,
stock dividend or other similar event occurring after the Exchange Offer
Completion Date and on or prior to the Mandatory Redemption Date), and


 


(iii)          $425.46 in principal amount of New
Notes.


 


No
fractional shares of Common Stock will be issued in the Mandatory Redemption,
and the number of shares issuable to a Holder shall be rounded down to the nearest
whole number of shares, and no amounts will be paid to such Holder for any
fractional shares of Common Stock. 
Notwithstanding anything herein to the contrary, no additional amounts
will be paid in the Mandatory Redemption for any premium or accrued and unpaid
interest on the Notes.


 


(e)           Mandatory
Redemption Notice.  The
Company shall give notice of the Mandatory Redemption (the “Mandatory Redemption Notice”) not later than the second
Business Day following satisfaction or waiver of the conditions to the
Mandatory Redemption set forth in Section 3.11(b) to each Holder of
the Notes.  The Mandatory Redemption
Notice, if given in the manner herein provided, shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice.  In any case, failure to give such Mandatory
Redemption Notice or any defect in the notice to the Holder of any Note shall
not affect the validity of the proceedings for the redemption of any other
Notes.


 


The
Mandatory Redemption Notice shall state:


 


54

















 


(i)            the date of the Mandatory Redemption
(the “Mandatory Redemption Date”), which shall
be not less than 5 days after the date of such notice or more than 10 days
after the date of such Mandatory Redemption Notice,


 


(ii)           the Mandatory Redemption Price,


 


(iii)          that on the Mandatory Redemption Date
the Mandatory Redemption Price will become due and payable upon each Note, and


 


(iv)          the place or places where the Notes
are to be surrendered for payment of the Mandatory Redemption Price.


 


The
Mandatory Redemption Notice shall be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company.


 


(f)            Deposit of Mandatory Redemption Price.  On or prior to 10:00 a.m. (New York City
time) on the Mandatory Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 2.04) an amount
of money, shares of Common Stock and New Notes sufficient to pay the Mandatory
Redemption Price of all of the outstanding Notes.


 


(g)           Grant of
Registration Rights.  On the
Mandatory Redemption Date, the Company shall enter into a Registration Rights
Agreement in the form attached hereto as Exhibit I with any Holder who, as
a result of the receipt of shares of Common Stock as part of the Mandatory
Redemption Price, determines in good faith that it is an “affiliate” of the
Company as such term is defined in Rule 144 under the Securities Act.


 


(h)           Escrow of
Interest Payments.  On the
Mandatory Redemption Date, the Company shall and shall cause the Guarantors to
enter into an Escrow Agreement in the form attached hereto as Exhibit J
with Wells Fargo Bank, National Association, in its capacity as Escrow Agent,
and the Trustee, and shall deposit into the escrow account under such
agreement, for the benefit of the holders of the New Notes, cash in an amount
that, in the good faith estimate of the Company, together with the proceeds of
the investment thereof, will be sufficient to pay the cash portion of the
interest on the New Notes for the first six scheduled interest payments on the
New Notes.


 


(i)            Issuance of Common Stock before Mandatory Redemption.  The Company shall not issue any shares of
Common Stock or securities convertible into or exercisable or exchangeable for
shares of Common Stock during the period from the Exchange Offer Completion
Date until the earlier of (1) the Mandatory Redemption Date or (2) May 1,
2010, unless the Company makes an appropriate increase in the number of shares
of Common Stock comprising the Mandatory Redemption Price such that the shares
of Common Stock issuable to all Holders in the Mandatory Redemption, assuming
that all Existing Notes were exchanged for Notes in the Exchange Offer, would
constitute 69% of the outstanding shares of Common Stock on a fully diluted
basis after the Mandatory Redemption (excluding shares of Common Stock issuable
upon the exercise of stock options granted to employees, officers and directors
of the Company and excluding shares of Common Stock issuable upon exercise of
warrants or convertible securities outstanding as of the Exchange Offer
Completion Date).  Notwithstanding the
foregoing, the following shall not require any adjustment to the number of
shares of Common Stock comprising the Mandatory Redemption Price: (1) the
award of stock options for Common


 


55

















 


Stock
and restricted Common Stock to officers, directors and employees for
compensation purposes in the ordinary course of business; (2) the issuance
of shares of Common Stock upon the exercise of stock options or warrants
outstanding as of the Exchange Offer Completion Date or thereafter issued
pursuant to the foregoing clause (1); (3) the issuance of shares of Common
Stock upon the exercise of the conversion rights of the Existing Notes or the
Notes; (4) the issuance of any Notes after the Exchange Offer Completion
Date in exchange for Existing Notes on terms no less favorable to the Company
than the terms of the Exchange Offer; and (5) the issuance of the shares
of Common Stock in the Mandatory Redemption.


 


(j)            Effect of Mandatory Redemption.  The Notes shall become due and payable on the
Mandatory Redemption Date at the Mandatory Redemption Price, and from and after
such date (unless the Company shall default in the payment of the Mandatory
Redemption Price) such Notes shall cease to bear interest. Upon surrender of
any such Note for redemption in accordance with said notice, such Note shall be
paid by the Company at the Mandatory Redemption Price.


 


If
any Note shall not be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest, from the
Mandatory Redemption Date at the rate borne by the Notes.


 


ARTICLE 4.

CONVERSION


 


Section 4.01.                         Conversion Right and Conversion
Rate.


 


(a)           Subject to and upon
compliance with the provisions of this Article 4, at the option of the
Holder thereof, any portion of the principal amount of any Note that is an
integral multiple of $1,000 may be converted into fully paid and non-assessable
shares of Common Stock at the Conversion Rate, determined as hereinafter
provided, in effect at the time of conversion. 
The Holders may surrender Notes for conversion at the applicable
Conversion Rate at any time after the Exchange Offer Completion Date until the
close of business on the Business Day immediately preceding the final maturity
date of the Notes.


 


(b)           All calculations
under this Article 4 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.


 


Section 4.02.                         Conversion Consideration.


 


(a)           Upon surrendering
any Notes for conversion, the Holder of such Notes shall receive, in respect of
each $1,000 principal amount of Notes: shares of Common Stock at an initial
conversion rate of 160.772 shares per $1,000 principal amount of Notes (the “Conversion Rate”), which is based upon an initial Conversion
Price of approximately $6.22 per share. 
The Conversion Rate (and Conversion Price) are subject to adjustment as
described below.


 


(b)           If a Holder receives
shares of Common Stock upon conversion of Notes, such Holder will also receive
the associated rights under any stockholder rights plan that the Company may
adopt, whether or not the rights have separated from the Common Stock at the
time of conversion unless, prior to conversion, the rights have expired,
terminated or been exchanged.


 


56

















 


Section 4.03.                         Exercise of Conversion Right.


 


(a)           In order to exercise
the conversion right:


 


(i)            the Holder of any Definitive Note to
be converted must (1) complete and manually sign a notice of conversion
substantially in the form set forth on the reverse of the Note (the “Conversion Notice”); (2) deliver the Conversion Notice
and the Definitive Note (and the Certificate of Conversion &
Restricted Transfer (defined below), if applicable) to the Conversion Agent and
the Company; and (3) if required, furnish appropriate endorsements and
transfer documents; or


 


(ii)           the holder of beneficial interests in
any Global Note to be converted must comply with the Applicable Procedures to
cause the beneficial interests in such Global Note to be delivered to the
Conversion Agent,


 


and,
in either case, the Holder of a Definitive Note or holder of beneficial
interests in a Global Note will, if required, pay all transfer or similar taxes
and, if required pursuant to Section 4.03(b) hereof, pay funds equal
to the interest payable on the next interest payment date.


 


The
date on which a Holder of a Definitive Note or holder of a beneficial interest
in a Global Note completes the requirements of this Section 4.03(a) shall
be deemed to be the date of conversion (the “Conversion
Date”) for purposes of this Article 4.  On and after the Conversion Date, the
conversion by such Holder or holder, as set forth in the Conversion Notice,
shall become irrevocable.


 


(b)           Notes shall be
deemed to have been converted immediately prior to the close of business on the
Conversion Date, and at such time the rights of the Holders of such Notes as
Holders will cease, and the Person or Persons entitled to receive the shares of
Common Stock payable and issuable upon conversion will be treated for all
purposes as the payee or payees of such payment and the record holder or
holders of such Common Stock at such time. 
Following any Conversion Date, the Company shall satisfy its obligations
with respect to such conversion by either:


 


(i)            delivering to the Trustee, for delivery
to the Holder (or such other Person as may be named in the relevant Conversion
Notice), the cash payment, together with certificates representing the number
of shares of Common Stock, payable and issuable upon the conversion; or


 


(ii)           delivering to such Holder (or such
other Person as may be named in the relevant Conversion Notice) the cash
payment, together with such number of shares of Common Stock payable and
issuable upon such conversion in accordance with the Applicable Procedures,


 


in
each case, together with payment in lieu of fractional shares, if any, as
provided in Section 4.04 (such cash payment and delivery of shares, if
any, the “Settlement”); provided
that shares of Common Stock only will be deliverable in certificated form if (1) the
Holder or holder that is exercising such conversion has specifically requested
in writing that delivery be in certificates or (2) the Company determines
that delivery is required in certificated shares either because (A) delivery
to the Holder (or such other Person named in the relevant Conversion Notice) is
not


 


57

















 


practicable
in accordance with the Applicable Procedures or (B) in the opinion of
legal counsel, delivery is required in certificated form in order to comply
with the requirements of applicable securities laws.  Settlement shall occur promptly, and in any
event within three Business Days.


 


(c)           In the case of any
Note which is converted in part only, upon such conversion the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof,
at the expense of the Company, a new Note or Notes of authorized denominations
in an aggregate principal amount equal to the unconverted portion of the
principal amount of such Note.  A Note may
be converted in part, but only if the principal amount of such Note to be
converted is any integral multiple of U.S. $1,000 and the principal amount of
such security to remain outstanding after such conversion is equal to U.S.
$1,000 or any integral multiple of $1,000 in excess thereof.


 


(d)           If shares of Common
Stock to be issued upon conversion of a Restricted Note, or Notes to be issued
upon conversion of a Restricted Note in part only, are to be registered in a
name other than that of the Beneficial Owner of such Restricted Note, then such
Holder must deliver to the Conversion Agent a certificate of conversion and
restricted transfer in the form of Exhibit D hereto (the “Certificate of Conversion & Restricted Transfer”),
dated the date of surrender of such Restricted Note and signed by such
Beneficial Owner, as to compliance with the restrictions on transfer applicable
to such Restricted Note.  The Certificate
of Conversion & Restricted Transfer shall be required in addition to
the Conversion Notice.  None of the
Trustee, any Conversion Agent, Registrar or transfer agent shall be required to
register shares of Common Stock issued upon conversion or any unconverted Notes
in the name of any Person other than that of the Holder or Beneficial Owner of
the converted Restricted Note unless such Holder or Beneficial Owner has
delivered a properly completed Certificate of Conversion & Restricted
Transfer.


 


All
shares of Common Stock delivered upon conversion of Restricted Notes shall bear
restrictive legends substantially in the form of the legends required to be set
forth on the Restricted Notes pursuant to Section 2.06(f) hereof and
shall be subject to the restrictions on transfer provided in such legends.  Neither the Trustee nor any Conversion Agent
shall have any responsibility for the inclusion or content of any such
restrictive legends on such Common Stock.


 


Section 4.04.                         Fractions of Shares.


 


No
fractional shares of Common Stock shall be issued upon conversion of any Note
or Notes.  If more than one Note shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Notes (or specified portions
thereof) so surrendered.  Instead of any
fractional share of Common Stock that would otherwise be issuable upon
conversion of any Note or Notes (or specified portions thereof), the Company
shall calculate and pay a cash adjustment for the fractional amount (calculated
to the nearest 1/100th of a share) based upon the applicable Conversion
Price.  The amount of the cash adjustment
payable in lieu of issuing such fractional share shall be equal to such
fractional share otherwise issuable multiplied by the Closing Sale Price on the
applicable Trading Day.


 


58
















 


Section 4.05.                         Adjustment
of Conversion Rate.


 


(a)           Adjustment.  The Conversion Rate will be subject to
adjustment, without duplication, from time to time upon the occurrence of any
of the following events:


 


(i)            Stock Dividends in Common
Stock.  In case the Company shall pay
or make a dividend or other distribution on shares of Common Stock payable
exclusively in shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the date fixed for the determination
of stockholders entitled to receive such dividend or other distribution shall
be increased by dividing such Conversion Rate by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination and the denominator
shall be the sum of such number of shares and the total number of shares constituting
such dividend or other distribution, such increase to become effective
immediately after the opening of business on the day following the date fixed
for such determination.  If, after any
such date fixed for determination, any dividend or distribution is not in fact
paid, the Conversion Rate shall be immediately readjusted, effective as of the
date the Company’s Board of Directors determines not to pay such dividend or
distribution, to the Conversion Rate that would have been in effect if such
determination date had not been fixed. 
For the purposes of this clause (i), the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock.  The Company will not pay any dividend or make
any distribution on shares of Common Stock held in the treasury of the Company.


 


(ii)           Issuance of Rights or
Warrants.  In case the
Company shall issue rights, warrants or options to all or substantially all
holders of Common Stock then entitled for a period expiring within forty-five (45)
days from the date of issuance of the rights, warrants or options to subscribe
for or purchase shares of Common Stock at a price per share less than the
Current Market Price per share of Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights, warrants or
options (other than any rights, warrants or options that (x) by their
terms will also be issued to any Holder upon conversion of a Note into shares
of Common Stock without any action required by the Company or any other Person
or (y) are distributed to shareholders of the Company upon a merger or
consolidation in compliance with Section 4.09 hereof), then the Conversion Rate in effect at the opening of
business on the day following the date fixed for such determination shall be
increased by dividing such Conversion Rate by a fraction:


 


(1)                                  the numerator
of which shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number of shares of
Common Stock that the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase
at such Current Market Price; and


 


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


 


59

















 


determination plus the number of shares of Common
Stock so offered for subscription or purchase,


 


such increase to become effective
immediately after the opening of business on the day following the date fixed
for such determination.  If, after any
such date fixed for determination, any such rights, warrants or options are not
in fact issued, or are not exercised prior to the expiration thereof, the
Conversion Rate shall be immediately readjusted, effective as of the date such
rights, warrants or options expire, or the date the Company’s Board of
Directors determines not to issue such rights, warrants or options, to the
Conversion Rate that would have been in effect if the unexercised rights,
warrants or options had never been granted or such determination date had not
been fixed, as the case may be and as a result no additional shares are
delivered or issued pursuant to such rights, warrants or options. For the
purposes of this clause (ii), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock. 
The Company will not issue any rights, warrants or options in respect of
shares of Common Stock held in the treasury of the Company.


 


(iii)          Stock Splits and
Combinations.  (1) In
case outstanding shares of Common Stock shall be subdivided or split into a
greater number of shares of Common Stock, then the Conversion Rate in effect at
the opening of business on the day following the day upon which such
subdivision or split becomes effective shall be proportionately increased; (2) in
case outstanding shares of Common Stock shall be combined or reclassified into
a smaller number of shares of Common Stock, then the Conversion Rate in effect
at the opening of business on the day following the day upon which such
combination or reclassification becomes effective shall be proportionately
reduced and (3) in case the Company issues any shares of its Capital Stock
in a reclassification of the outstanding shares of Common Stock, then the
Conversion Rate in effect at the opening of business on the day following the
day upon which such reclassification becomes effective shall be proportionately
applied to the new class of shares of Capital Stock of the Company into which
the Common Stock was reclassified; in each case, such increase, reduction or
reclassification, as the case may be, to become effective immediately after the
opening of business on the Business Day following the day upon which such
subdivision, combination or reclassification becomes effective.


 


(iv)          Distribution of
Indebtedness, Securities Or Assets.  In case the Company shall, by dividend or
otherwise, distribute to all or substantially all holders of Common Stock
evidences of its indebtedness, property or assets, including rights, warrants,
options or other securities (provided, that
if these rights are only exercisable upon the occurrence of specified
triggering events, then the Conversion Rate will not be adjusted until the
triggering events occur), but excluding (1) any dividends or distributions
referred to in clause (i) of this Section 4.05(a), (2) any
rights, warrants or options referred to in clause (ii) of this Section 4.05(a) and
(3) any dividends or distributions paid exclusively in cash described in
clause (vi) of this Section 4.05(a) (the “Distributed
Assets”), then the Conversion Rate shall be adjusted so that the
same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the close of business on the record date fixed for
the determination of stockholders entitled to receive such distribution by a
fraction:


 


60

















 


(1)                                  the numerator
of which shall be the Current Market Price per share of Common Stock; and


 


(2)                                  the denominator
of which shall be the Current Market Price per share of Common Stock less the
Fair Market Value, as determined by the Company’s Board of Directors, whose
determination in good faith shall be conclusive and described in a Board
Resolution filed with the Trustee, of the portion of those Distributed Assets
applicable to one share of Common Stock, such adjustment to become effective
immediately after the record date fixed for the determination of stockholders
entitled to receive such distribution.


 


If
after any such date fixed for determination, any such distribution is not in
fact made, the Conversion Rate shall be immediately readjusted, effective as of
the date the Company’s Board of Directors determines not to make such
distribution, to the Conversion Rate that would have been in effect if such
determination date had not been fixed.


 


Notwithstanding
the foregoing, in cases where (A) the Fair Market Value per share of the
Distributed Assets equals or exceeds the Current Market Price of the Common
Stock, or (B) the Current Market Price of the Common Stock exceeds the
Fair Market Value per share of the Distributed Assets by less than $1.00, in
lieu of the adjustment set forth in this Section 4.05(a)(iv), Holders will
have the right to receive upon conversion, in addition to shares of Common Stock,
if any, the amount and type of Distributed Assets such Holders would have
received upon conversion of such Holders’ Notes if they had been converted
immediately prior to the record date.


 


(v)           Distribution of Capital
Stock of Subsidiaries.  In
case the Company shall, by dividend or otherwise, distribute to all or
substantially all holders of Common Stock the Capital Stock of, or similar
Equity Interests in, a Subsidiary or other business unit of the Company, but
excluding any dividends or distributions referred to in clause (iv) of
this Section 4.05(a) (the “Subsidiary Interests”),
then the Conversion Rate shall be adjusted so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect immediately prior
to the close of business on the record date fixed for the determination of
stockholders entitled to receive such distribution by a fraction:


 


(1)                                  the numerator
of which shall be the Current Market Price per share of Common Stock for the
ten (10) Trading Days commencing on and including the fifth (5th) Trading
Day after the date on which the “ex-dividend trading” commences for such
distribution; and


 


(2)                                  the denominator
of which shall be the Current Market Price per share of Common Stock for the
ten (10) Trading Days commencing on and including the fifth (5th) Trading
Day after the date on which the “ex-dividend trading” commences for such
distribution less the Current Market Price of the Subsidiary Interests
distributed per share of Common Stock in such dividend or distribution for the
ten (10) Trading Days commencing on and including the fifth (5th) Trading
Day after the date on which the “ex-dividend trading” commences for such
distribution, such


 


61

















 


adjustment to become effective immediately after the
record date fixed for the determination of stockholders entitled to receive
such distribution.


 


If
after any such date fixed for determination, any such distribution is not in
fact made, the Conversion Rate shall be immediately readjusted, effective as of
the date the Company’s Board of Directors determines not to make such
distribution, to the Conversion Rate that would have been in effect if such
determination date had not been fixed.


 


Notwithstanding
the foregoing, in cases where (A) the Current Market Price applicable to
the Capital Stock, or Equity Interests, of such Subsidiary distributed to each
share of Common Stock in such dividend or distribution equals or exceeds the
Current Market Price of the Common Stock, or (B) the Current Market Price
of the Common Stock exceeds the Current Market Price applicable to the Capital
Stock, or Equity Interests, of such Subsidiary distributed to each share of
Common Stock in such dividend or distribution by less than $1.00, in lieu of
the adjustment set forth in this Section 4.05(a)(v), Holders will have the
right to receive upon conversion, in addition to shares of Common Stock, if
any, the Capital Stock, or Equity Interests, of such Subsidiary distributed to
each share of Common Stock in such dividend or distribution such Holders would
have received upon conversion of such Holders’ Notes if they had been converted
immediately prior to the record date.


 


(vi)          Cash Distributions.  In case the Company shall, by dividend or
otherwise, distribute to all or substantially all holders of outstanding shares
of Common Stock distributions consisting exclusively of cash (excluding any
dividend or distribution in connection with the Company’s liquidation,
dissolution or winding up) then the Conversion Rate shall be adjusted so that
the same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the close of business on the date fix for
determination of the stockholders entitled to receive such distribution by a fraction:


 


(1)                                  the numerator
of which shall be equal to the Current Market Price per share of Common Stock
on the date fixed for such determination; and


 


(2)                                  the denominator
of which shall be equal to the Current Market Price per share of Common Stock
on such date fixed for determination less the amount per share of such
distribution, such adjustment to become effective immediately after the record
date fixed for the determination of stockholders entitled to receive such
distribution.


 


Notwithstanding
the foregoing, in cases where (A) the per share amount of such
distribution equals or exceeds the Current Market Price of the Common Stock, or
(B) the Current Market Price of the Common Stock exceeds the per share
amount of such distribution by less than $1.00, in lieu of the adjustment set
forth in this Section 4.05(a)(vi), Holders will have the right to receive
upon conversion, in addition to shares of Common Stock, if any, such
distribution such Holders would have received upon conversion of such Holders’
Notes if they had been converted immediately prior to the record date.


 


62

















 


(vii)         Tender or Exchange Offers.  In case the Company or any Subsidiary shall
make a payment in respect of a tender offer or exchange offer for any portion
of the Common Stock, in which event, to the extent the cash and value of any
other consideration included in the payment per share of the Common Stock
exceeds the Closing Sale Price of the Common Stock on the Trading Day next
succeeding the last date on which tenders or exchanges may be made pursuant to
such tender offer or exchange offer (the “Expiration Date”),
as the case may be, then the Conversion Rate shall be adjusted so that the same
shall equal the rate determined by multiplying the Conversion Rate immediately
prior to close of business on the Expiration Date by a fraction:


 


(1)                                  the numerator
of which shall be equal to the sum of (A) the Fair Market Value, as
determined by the Board of Directors of the Company, of the aggregate consideration
payable for all shares of Common Stock purchased by the Company in the tender
or exchange offer and (B) the product of (x) the number of shares of
Common Stock outstanding less any such purchased shares and (y) the
Closing Sale Price of the Common Stock on the Trading Day next succeeding the
Expiration Date; and


 


(2)                                  the denominator
of which shall be equal to the product of (A) the number of shares of
Common Stock outstanding, including any such purchased shares and (B) the
Closing Sale Price of the Common Stock on the Trading Day next succeeding the
Expiration Date, such adjustment to become effective immediately after the
opening of business on the second (2nd) Trading Day next succeeding the
Expiration Date.


 


(b)           No Adjustment.  No adjustment in the Conversion Rate shall be
required:


 


(i)            upon the issuance of any
shares of Common Stock pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on the Company’s securities and
the investment of additional optional amounts in shares of Common Stock under
any plan;


 


(ii)           upon the issuance of any
shares of Common Stock or options or rights to purchase such shares pursuant to
any present or future employee, director or consultant benefit plan or program
of, or assumed by, the Company or any of its Subsidiaries;


 


(iii)          upon the issuance of any
shares of Common Stock pursuant to any option, warrant, right or exercisable,
exchangeable or convertible security not described in clause (ii) of this Section 4.05(b) and
outstanding as of the Exchange Offer Completion Date;


 


(iv)          in connection with a merger,
consolidation or other transaction effected solely for the purpose of changing
the Company’s jurisdiction of incorporation to any other state within the
United States;


 


(v)           for a change in the par
value of the Common Stock; or


 


(vi)          for accrued and unpaid
interest, if any.


 


63

















 


(c)           Increase in Conversion Rate due
to Taxes.  Subject to
the Nasdaq Stock Market rules, the Company may make such increases in the
Conversion Rate, for the remaining term of the Notes or any shorter term, in
addition to those required by clause (a) of this Section 4.05, as the
Board of Directors of the Company considers advisable in order to avoid or
diminish any income tax to any holders of shares of Common Stock or rights to
purchase Common Stock resulting from any dividend or distribution of stock or
issuance of rights or warrants to purchase or subscribe for stock or from any
event treated as such for income tax purposes. 
The Company shall have the power to resolve any ambiguity or correct any
error in this subsection (c) and its actions in so doing shall, absent
manifest error, be final and conclusive.


 


(d)           Temporary Increase in Conversion
Rate.  Subject to Nasdaq Stock Market
rules, to the extent permitted by applicable law, the Company from time to time
may increase the Conversion Rate by any amount for any period of time if the
period is at least twenty (20) days, the increase is irrevocable during such
period, and the Company’s Board of Directors shall have made a determination
that such increase would be in the best interests of the Company, which
determination shall be conclusive. 
Whenever the Conversion Rate is increased pursuant to the preceding
sentence, the Company shall give notice of the increase to the Holders in the
manner provided in Section 14.02, with a copy to the Trustee and
Conversion Agent, at least fifteen (15) days prior to the date the increased
Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.


 


(e)           Designated Event Make-Whole
Amount.  In case of a transaction
described in clause (3) of the definition of Fundamental Change, solely
upon receipt by the Conversion Agent of any Holder’s Conversion Notice on or
subsequent to the effective date of such Fundamental Change and prior to the
forty-fifth (45th) day following such effective date (or, if earlier and to the
extent applicable, the close of business on the second Business Day immediately
preceding the Designated Event Repurchase Date (as specified in the Designated
Event Notice)), the Company shall pay such Holder a make-whole premium within
twenty (20) days after the consummation of such Designated Event.  This make-whole premium will be equal to the
present value on the effective date of such Fundamental Change of all required
interest payments on the Notes as if paid in cash from the effective date of
such Fundamental Change through November 15, 2010 (including any accrued
but unpaid interest), computed using a discount rate equal to the Reinvestment
Yield (the “Designated Event Make-Whole Amount”).  Holders will only be eligible to receive the
Designated Event Make-Whole Amount if the Closing Sale Price of the Common
Stock immediately following the announcement of such Fundamental Change is
equal to or greater than the Closing Sale Price of the Common Stock on the
Original Issue Date and less than three times the Closing Sale Price of the
Common Stock on the Original Issue Date.


 


Such payment shall be
payable, at the Company’s option, in (1) cash, (2) shares of Common
Stock at a 5.0% discount to the Current Market Price; provided
that the issuance of shares of Common Stock in payment of this make-whole
premium will be subject to the Nasdaq Stock Market rules, which may require
shareholder approval in certain circumstances, (3) the consideration
received triggering such Designated Event, or (4) a combination of cash,
shares and such consideration.


 


Section 4.06.                         Notice
of Adjustments of Conversion Rate.


 


Whenever the Conversion Rate
is adjusted pursuant to Section 4.05 hereof:


 


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(a)           the Company shall compute
the adjusted Conversion Rate in accordance with Section 4.05 hereof and
shall prepare an Officer’s Certificate setting forth (1) the adjusted
Conversion Rate, (2) the clause of Section 4.05 pursuant to which
such adjustment has been made, showing in reasonable detail the facts upon
which such adjustment is based, (3) the calculation of such adjustment and
(4) the date as of which such adjustment is effective, and such
certificate shall promptly be filed with the Trustee and with each Conversion
Agent; and


 


(b)           upon each such adjustment, a
notice stating that the Conversion Rate has been adjusted and setting forth the
adjusted Conversion Rate shall be required, and as soon as practicable after it
is required, such notice shall be provided by the Company to all Holders in
accordance with Section 14.02.


 


Neither the Trustee nor any
Conversion Agent shall be under any duty or responsibility with respect to any
such certificate or the information and calculations contained therein, except
to exhibit the same to any Holder desiring inspection thereof at its office
during normal business hours.


 


Section 4.07.                         Notice
of Certain Corporate Action.


 


In case the Company shall:


 


(a)           distribute to all or
substantially all holders of the Common Stock rights, warrants or options
entitling them to purchase, for a period expiring within forty-five (45) days
of the declaration date for such distribution, Common Stock at less than the
Current Market Price of the Common Stock; or


 


(b)           distribute to all or
substantially all holders of Common Stock evidences of the Company’s
indebtedness, property or assets, including rights, warrants, options or other
securities, which distribution has a per share value exceeding 10% of the
Closing Sale Price of the Common Stock on the day preceding the declaration
date for such distribution;


 


then the Company shall
deliver written notice to the Conversion Agent, and shall deliver or cause its
Agents to deliver, to all Holders in accordance with Section 14.02 hereof,
at least ten (10) days prior to the ex-dividend date for such distribution,
a notice of such distribution.


 


At any time that the Trustee
is not also the Conversion Agent, the Company shall forthwith deliver a copy of
any notice required pursuant to this Section 4.07 to the Trustee.


 


Section 4.08.                         Cancellation
of Converted Notes.


 


All Definitive Notes
delivered for conversion shall be delivered to the Trustee or its agent to be
canceled by or at the direction of the Trustee, which shall dispose of the same
as provided in Section 2.11 hereof. 
Upon conversions of beneficial interests in any Global Note, the Trustee
or the Custodian, at the direction of the Trustee, shall reduce the aggregate
principal amount of outstanding Notes represented by such Global Note to
reflect the conversion.


 


Section 4.09.                         Provision
in Case of Reclassification, Consolidation, Merger or Sale of Assets.


 


In the case of any
consolidation or merger of the Company with or into any other Person, any
merger of another Person with or into the Company (other than a merger that
does not result


 


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in
any reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock) or any conveyance, sale or transfer of all or
substantially all of the assets of the Company, the Company or the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall notify the Trustee and the Holders at
least ten (10) days prior to the record date for such transaction, or if
there is no record date, at least ten (10) Trading Days prior to the
anticipated effective date for such transaction.  The Company, or such successor, purchasing or
transferee corporation, as the case may be, as a condition precedent to such
consolidation, merger, conveyance, sale or transfer, shall execute and deliver
to the Trustee a supplemental indenture providing that the Holder of each Note
then outstanding shall have the right thereafter to convert Notes only into the
kind and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale or transfer by a holder of the number
of shares of Common Stock into which such Notes might have been converted
immediately prior to such consolidation, merger, conveyance, sale or transfer.  Such supplemental indenture shall provide for
adjustments of the Conversion Rate and Conversion Price which shall be as
nearly equivalent as may be practicable to the adjustments of the Conversion
Rate and Conversion Price provided for in this Article 4.  If, in the case of any such consolidation,
merger, conveyance, sale or transfer, the securities, cash and other property
receivable thereupon by a holder of 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,
conveyance or sale, 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 as the Company’s Board of Directors shall reasonably
consider necessary by reason of the foregoing.


 


In the event holders of
Common Stock have the opportunity to elect the form of consideration to be
received in such transaction, then from and after the effective date of such
transaction, the Notes shall be convertible into the consideration that a
majority of the holders of Common Stock who made such an election received in
such transaction.  The Company will
notify holders and the Trustee as promptly as practicable following the date
such transaction is publicly announced but in no event less than fifteen (15)
days prior to the anticipated effective date of such transaction.  The above provisions of this Section 4.09
shall similarly apply to successive consolidations, mergers, conveyances, sales
or transfers.  Notice of the execution of
such a supplemental indenture shall be given by the Company to the Holder of
each Note as provided in Section 14.02 hereof promptly upon such
execution.


 


Neither the Trustee nor any
Conversion Agent shall be under any responsibility to determine the correctness
of any provisions contained in any such supplemental indenture relating either
to the kind or amount of shares of stock or other securities or property or
cash receivable by Holders of Notes upon the conversion of their Notes after
any such consolidation, merger, conveyance, transfer, sale or lease or to any
such adjustment, but may accept as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon, an Opinion of
Counsel with respect thereto, which the Company shall cause to be furnished to
the Trustee upon request.


 


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Section 4.10.                         [Intentionally
Omitted.]


 


Section 4.11.                         Share
Issuance Cap.


 


Notwithstanding any other
provision of the Notes or this Indenture, in no event will the Company issue
more than an aggregate of 30,106,403 shares of Common Stock upon conversion of
the Notes and in payment of any make-whole premium obligations unless the
Company has previously received stockholder approval for issuances of shares of
Common Stock in excess of that number of shares in accordance with, and to the
extent required by, the Nasdaq Stock Market rules, and any Holder who would
otherwise be entitled to receive shares of Common Stock upon such conversion of
the Notes in excess of such number shall instead be entitled to receive cash in
an amount equal to the Current Market Price in lieu of each share that such
Holder would otherwise be entitled to receive in excess of such number.  If the Company obtains stockholder approval
for issuances of shares of Common Stock in excess of such number, to the extent
required by the Nasdaq Stock Market rules, the Company will have the option to
either pay Holders cash or issue shares of Common Stock upon such conversions
and payments of make-whole premiums.


 


Section 4.12.                         Rights
Issued in Respect of Common Stock.


 


Rights or warrants distributed
by the Company to all holders of Common Stock entitling the holders thereof to
subscribe for or purchase shares of the Company’s Capital Stock (either
initially or under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events (“Trigger Event”):


 


(1)                                  are deemed to
be transferred with such shares of Common Stock;


 


(2)                                  are not
exercisable; and


 


(3)                                  are also issued
in respect of future issuances of Common Stock,


 


shall not be deemed
distributed for purposes of Section 4.05(a)(ii) or (iv) hereof
until the occurrence of the earliest Trigger Event.  In addition, in the event of any distribution
of rights or warrants, or any Trigger Event with respect thereto, that shall
have resulted in an adjustment to the Conversion Rate and Conversion Price
under Section 4.05(a)(ii) or (iv) hereof, (A) in the case
of any such rights or warrants that shall all have been redeemed or repurchased
without exercise by any holders thereof, the Conversion Rate shall be
readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder of Common Stock with respect to such rights, options or warrants
(assuming such holder had retained such rights, options or warrants), made to
all holders of Common Stock as of the date of such redemption or repurchase,
and (B) in the case of any such rights or warrants all of which shall have
expired without exercise by any holder thereof, the Conversion Rate and
Conversion Price shall be readjusted as if such issuance had not occurred.


 


Section 4.13.                         Responsibility
of Trustee for Conversion Provisions.


 


The Trustee, subject to the
provisions of Section 8.01 hereof, and any Conversion Agent, shall not at
any time be under any duty or responsibility to any Holder to determine whether
any facts exist which may require any adjustment of the Conversion Rate or
Conversion Price, or


 


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with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, herein or in any supplemental indenture
provided to be employed, in making the same, or whether a supplemental
indenture need be entered into.  Neither
the Trustee, subject to the provisions of Section 8.01 hereof, nor any
Conversion Agent, shall be accountable with respect to the validity or value
(or the kind or amount) of any Common Stock, or of any other securities or
property or cash, which may at any time be issued or delivered upon the
conversion of any Note; and it or they do not make any representation with
respect thereto.  Neither the Trustee,
subject to the provisions of Section 8.01 hereof, nor any Conversion
Agent, shall be responsible for any failure of the Company to make or calculate
any cash payment or to issue, transfer or deliver any shares of Common Stock or
share certificates or other securities or property or cash upon the surrender of
any Note for the purpose of conversion; and the Trustee, subject to the
provisions of Section 8.01 hereof, and any Conversion Agent, shall not be
responsible for any failure of the Company to comply with any of the covenants
of the Company contained in this Article 4.


 


Section 4.14.                         Certain
Regulatory Requirements.


 


Prior to conversion of any
Note, a Holder will ascertain, in consultation with the Company, whether such
conversion will result in a de jure or de facto transfer of control of the Company or any of the
Guarantors under the Communications Act and require prior approval of the FCC
with respect to such conversion.  If the
Company reasonably determines, in consultation with FCC counsel, that the FCC’s
prior approval is required, then the approval of the FCC will be obtained prior
to any such conversion.


 


ARTICLE
5.


COVENANTS


 


Section 5.01.                         Payment
of Notes.


 


The Company shall pay or
cause to be paid the principal or Aggregate Accreted Principal Amount, if any,
of, premium, if any, and interest on, the Notes on the dates and in the manner
provided in the Notes.  Principal,
Aggregate Accreted Principal Amount, if any, 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, Aggregate Accreted
Principal Amount, if any, premium, if any, and interest then due and the Paying
Agent is not prohibited from paying such money to the Holders on such date
pursuant to the terms of this Indenture.


 


The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Code) on overdue principal or Aggregate Accreted Principal Amount,
if any, 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 Code)
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


 


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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 or cause the Trustee to furnish to the
Holders at the Company’s expense 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 financial statements and financial
information that would be required to be filed with the SEC on Forms 10-Q and 10-K
if the Company were required to file such reports (when and as if filed).  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) all current reports that would be
required to be filed with the SEC in current reports on Form 8-K if the
Company were required to file such reports; 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, if at any time the Company is not required to file with the
SEC the reports required in this Section 5.03, the Company will furnish to
Holders and to securities analysts and prospective investors of the Notes, upon
their request, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


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 ninety (90) days after the end of each
fiscal year, an Officer’s Certificate, signed by 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 Officer with a
view to determining whether the Company and each obligor under the Notes and
this Indenture has kept, observed, performed and fulfilled its


 


69

















 


obligations under the Note
Documents, and further stating, as to the 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
the Note Documents and is not in default in the performance or observance of
any of the terms, provisions and conditions of the Note 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 or Aggregate
Accreted Principal Amount, premium, if any, or interest, 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 this 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 Default or Event of Default, an Officer’s
Certificate specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect thereto.


 


Section 5.05.                         Taxes.


 


The Company and the
Guarantors shall pay, and shall cause each of their 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.


 


Section 5.06.                         Stay,
Extension and Usury Laws.


 


The Company and each of the
Guarantors covenant (to the extent that they may lawfully do so) that they
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 they may lawfully do so) hereby expressly waive
all benefit or advantage of any such law, and covenant that they 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.


 


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Section 5.07.                         Limitation
on Restricted Payments.


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or
indirectly:  (i) declare or pay any
dividend or make any other payment or distribution on account of the Company’s
or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation
involving the Company or its Restricted Subsidiaries) or to the direct or
indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity
Interests in their capacity as such (other than dividends or distributions
payable in Equity Interests (other than Disqualified Stock) of the Company or
dividends, payments or distributions payable to the Company or a Restricted
Subsidiary of the Company); (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
its Restricted Subsidiaries (other than any such Equity Interests owned by the
Company or any Guarantor); (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 Restricted Subsidiaries that is
contractually subordinated to the Notes or any Note Guarantee (excluding any
intercompany Indebtedness between or among the Company and any of the
Guarantors), except a payment of interest or principal at the Stated Maturity
thereof (for purposes hereof the Existing Notes and guarantees thereof will not
be deemed to be contractually subordinated to the Notes or any Note Guarantee);
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”).


 


So long as no Default or
Event of Default shall have occurred and be continuing or would be caused
thereby, the preceding 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
repurchase, redemption, defeasance or other acquisition or retirement for value
of Indebtedness of the Company that is contractually subordinated to the Notes
with the net cash proceeds from a substantially concurrent incurrence of
Permitted Refinancing Indebtedness (for purposes hereof the Existing Notes and
guarantees thereof will not be deemed to be contractually subordinated to the
Notes or any Note Guarantee); (iii) the repurchase of Equity Interests
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 payment of any dividend or other payment or distribution or
distribution by a Restricted Subsidiary of the Company to the holders of its
Equity Interests on a pro rata basis.


 


The amount of all Restricted
Payments (other than cash and Cash Equivalents) 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 Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment.  The Fair Market Value of any Restricted
Payment not in cash or Cash Equivalents shall be determined by the Board of
Directors of the Company whose Board 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 $10.0 million.  Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officer’s
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon


 


71

















 


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.                         Limitation
on Dividend and Other Payment Restrictions Affecting Subsidiaries.


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary of the Company to (i) pay
dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness owed to
the Company or any of its Restricted Subsidiaries; (ii) make loans or
advances to the Company or any of its Restricted Subsidiaries; or (iii) sell,
lease or transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries.


 


The preceding restrictions
will not apply to encumbrances or restrictions existing under or by reason of:


 


(1)                                  any encumbrance
or restriction pursuant to an agreement in effect on the date of the issuance
of the Notes;


 


(2)                                  Permitted
Refinancing Indebtedness, provided that the encumbrances and restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness
are no more restrictive than those contained in the agreements governing the
Indebtedness being refinanced;


 


(3)                                  this Indenture,
the Collateral Agreements, the Notes and the Note Guarantees;


 


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


 


(5)                                  customary
non-assignment provisions in contracts and licenses entered into in the
ordinary course of business;


 


(6)                                  any agreement
for the sale or other disposition of a Restricted Subsidiary of the Company that
restricts distributions by that Restricted Subsidiary pending the sale or other
disposition;


 


(7)                                  Liens permitted
to be incurred under Section 5.12 hereof that limit the right of the
debtor to dispose of the assets subject to such Liens;


 


(8)                                  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


 


(9)                                  restrictions on
cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business.


 


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Section 5.09.                         Limitation
on Incurrence of Additional Indebtedness and Issuance of Preferred Stock.


 


The Company will not, and
will not permit any of its Restricted 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 Indebtedness),
and the Company will not issue any Disqualified Stock and will not permit any
of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that
the Company and the Guarantors will be entitled to incur Indebtedness
(including Acquired Indebtedness) and issue Disqualified Stock if, on the date
of such incurrence or issuance, as applicable, and after giving effect thereto
on a pro forma basis (including pro forma application of the net proceeds therefrom), the
Consolidated Coverage Ratio exceeds 2.0 to 1.0.


 


The provisions of the first
paragraph of this Section 5.09 will not prohibit the incurrence of any of
the following items of Indebtedness:


 


(1)                                  the incurrence
by the Company and 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 (1) (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of the Company thereunder) not to exceed $50.0 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;


 


(2)                                  so long as no
Default has occurred and is continuing, at any time after the Company’s Field
EBITDA has equaled or exceeded $75.0 million, on an annualized basis, for two
consecutive fiscal quarters for which financial statements are available, the
incurrence by the Company and the Guarantors, other than a Guarantor that holds
any of the Company’s 24 GHz or 39 GHz FCC Licenses, of additional Indebtedness,
in an amount equal to 1.50 times the amount of net cash proceeds from the
issuance of Equity Interests (other than Disqualified Stock) after the date of
this Indenture (other than resulting from the conversion of the Notes), in an
aggregate principal amount at any one time outstanding under this clause (2),
together with any Permitted Refinancing Indebtedness incurred to refund,
refinance, replace, defease or discharge any Indebtedness incurred pursuant to
this clause (2), not to exceed $250.0 million, provided that such Indebtedness
has a weighted Average Life greater than the remaining Average Life of the
Notes, and provided further, that prior to the incurrence of any such
Indebtedness, the Company delivers an Officer’s Certificate to the Trustee
certifying that the Company has complied with this clause (2);


 


(3)                                  so long as no
Default has occurred and is continuing, the incurrence by the Company of
additional Indebtedness, in an amount equal to 80% of the aggregate principal
amount of Notes that have been converted after the date of this Indenture,
provided that such Indebtedness (a) is expressly


 


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subordinated to the prior payment in full in cash of
all Obligations with respect to the Notes, (b) does not mature and is not
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder of the Indebtedness, in whole or in
part, on or prior to the date that is ninety-one (91) days after the date on
which the Notes mature, (c) bears cash interest (or any similar payments),
if at all, in an amount not to exceed 12.0% per annum and (d) prohibits
the payment of cash interest (and any similar payments) during any period in
which 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 provided further, that prior to the incurrence of any such
Indebtedness, the Company delivers an Officer’s Certificate to the Trustee
certifying that the Company has complied with this clause (3);


 


(4)                                  (i) the
incurrence by the Company and the Guarantors of Indebtedness represented by the
Initial Notes and any Additional Notes issued as interest on the Initial Notes,
and the Note Guarantees with respect thereto, (ii)  the incurrence by the
Company and the Guarantors of Indebtedness represented by Additional Notes
issued after the consummation of the Exchange Offer in exchange for Existing
Notes on terms no less favorable to the Company and the Guarantors than the
Exchange Offer, and any Additional Notes issued as interest on such Notes, and
the Guarantees with respect thereto, and (iii) the incurrence by the
Company and the Guarantors of Indebtedness represented by any additional
Existing Notes issued as interest on the Existing Notes in accordance with the
terms of the Existing Notes Indenture, and the guarantees of the Guarantors
with respect thereto;


 


(5)                                  the incurrence
by the Company and its Restricted 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 (5) and clauses (2), (4) and (12) of this
paragraph;


 


(6)                                  the incurrence
of intercompany Indebtedness between or among the Company and any of its
Restricted Subsidiaries; provided, however, that:


 


A.                                   if the Company
or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be
expressly subordinated to the prior payment in full in cash of all Obligations
with respect to the Notes and the Note Guarantees; and


 


B.                                     any (1) subsequent
issuance or transfer of Equity Interests that results in any such Indebtedness
being held by a Person other than the Company or a Restricted Subsidiary of the
Company, or (2) sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary of the
Company,


 


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will be deemed, in each case, to constitute an
incurrence of such Indebtedness that was not permitted by this clause (6);


 


(7)                                  the issuance by
any of the Company’s Restricted Subsidiaries to the Company or to any of its
Restricted 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
Restricted 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 Restricted
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 (7);


 


(8)                                  the incurrence
by the Company of Hedging Obligations in the ordinary course of business;


 


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


 


(10)                            the incurrence
by the Company or any Restricted Subsidiaries of the Company of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or any
part of the purchase price or cost of design, construction, installation or
improvement of property, plant or equipment used in the business of the Company
or any Restricted Subsidiary of the Company, in an aggregate amount at any time
outstanding not to exceed $10.0 million, provided that the aggregate amount of
Indebtedness outstanding under this clause (10) and clause (14) will not
together exceed $10.0 million at any time;


 


(11)                            the incurrence
by the Company or any of its Restricted 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 (5) Business Days;


 


(12)                            the incurrence
by the Company and its Restricted Subsidiaries of Existing Indebtedness;


 


(13)                            the incurrence
by the Company of Indebtedness to the extent that the net proceeds thereof are
promptly deposited to defease or satisfy and discharge the Notes in accordance
with the provisions of this Indenture; and


 


(14)                            the incurrence
by the Company or any of its Restricted Subsidiaries of any other Indebtedness
not otherwise permitted to be incurred under the terms of this Indenture in an
aggregate amount at any time outstanding not to exceed $5.0 million, provided
that the aggregate amount of Indebtedness


 


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outstanding under this clause (14) and clause (10) will
not together exceed $10.0 million at any time.


 


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


 


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


 


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


 


Section 5.10.                         Limitation
on Asset Sales.


 


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


 


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


 


(2)                                  at least 85% of
the consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash.


 


For purposes of this Section 5.10,
each of the following will be deemed to be cash:


 


(1)                                  any
liabilities, as shown on the Company’s most recent consolidated balance sheet,
of the Company or any Subsidiary (other than contingent liabilities and
Indebtedness that are by their terms subordinated to the Notes or any Note
Guarantee) that are assumed by the transferee of any such assets pursuant to (A) a
customary novation agreement that releases the Company or such Subsidiary from
further liability or (B) an assignment agreement that includes, in lieu of
such a release, the agreement of the transferee or its parent company to
indemnify and hold harmless the Company or such Subsidiary from and against any
loss, liability or cost in respect of such assumed liability;


 


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


 


(3)                                  any stock or
assets of the kind referred to in clauses (2) or (4) of the next
paragraph of this covenant.


 


Within 365 days after the
receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable
Restricted Subsidiary, as the case may be) may apply such Net Proceeds:


 


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(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 Restricted 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.


 


Pending the final
application of any Net Proceeds, the Company may temporarily reduce borrowings
under the Working Capital Facility or otherwise invest the Net Proceeds in any
manner that is not prohibited by this Indenture.


 


Any Net Proceeds from Asset
Sales that are not applied or invested as provided in the second paragraph of
this covenant will constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $5.0 million, the Company will, within five (5) days thereof, make
an Asset Sale Offer to all Holders and all holders of other senior secured
Indebtedness that is pari passu in
right of payment and as to security interests with the Notes with respect to
the assets that are the subject of such Asset Sale 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 amount
of Notes and such other pari passu
Indebtedness that may be purchased out of the Excess Proceeds in accordance
with the procedures set forth in Section 3.09 hereof.  The offer price for the Notes in any Asset
Sale Offer will be equal to 100% of the Aggregate Accreted Principal Amount of
the Notes, plus accrued and unpaid interest to the date of purchase.  If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds
for any purpose not otherwise prohibited by this Indenture.  If the Aggregate Accreted Principal Amount of
Notes and the amount of other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis.  Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be
reset at zero.


 


Section 5.11.                         Limitation on Transactions
with Affiliates.


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
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 transaction, contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any Affiliate of the
Company or any Restricted Subsidiary of the Company (each, an “Affiliate Transaction”), unless:


 


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


 


77

















 


(2)                                  the Company
delivers to the Trustee:


 


A.                                   with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $2.5 million (other than an Ordinary
Course Affiliate Transaction), a Board Resolution set forth in an Officer’s
Certificate certifying that such Affiliate Transaction complies with this
covenant and that such Affiliate Transaction has been approved by a majority of
the disinterested members of the Board of Directors of the Company;


 


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


 


C.                                     with respect to
any Ordinary Course Affiliate Transaction or series of related Ordinary Course
Affiliate Transactions involving aggregate consideration in excess of $10.0
million, a Board Resolution set forth in an Officer’s Certificate certifying
that such Ordinary Course Affiliate Transaction complies with this covenant and
that such Ordinary Course Affiliate Transaction has been approved by a majority
of the disinterested members of the Board of Directors of the Company.


 


The
following items will not be deemed to be Affiliate Transactions and, therefore,
will not be subject to the provisions of the prior paragraph:


 


(1)                                  any employment
agreement, employee benefit plan, officer or director indemnification agreement
or any similar arrangement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and payments pursuant thereto;


 


(2)                                  transactions
exclusively between or among the Company and/or the Guarantors;


 


(3)                                  transactions
with a Person that is an Affiliate of the Company solely because the Company
owns, directly or through a Restricted Subsidiary of the Company, an Equity
Interest in, or controls, such Person;


 


(4)                                  payment of
reasonable directors’ fees to Persons who are not otherwise Affiliates of the
Company or its Restricted Subsidiaries;


 


(5)                                  Restricted
Payments that do not violate the provisions of this Indenture described under Section 5.07
hereof;


 


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(6)                                  loans or
advances to employees in the ordinary course of business, and in compliance
with applicable law, not to exceed $1.0 million in the aggregate at any one
time outstanding; and


 


(7)                                  any agreement
as in effect on the Exchange Offer Completion Date or any amendments, renewals
or extensions of any such agreement (so long as such amendments, renewals or
extensions are not less favorable to the Holders).


 


Section 5.12.                         Limitation
on Liens.


 


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


 


Section 5.13.                         Conduct
of Business.


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, engage in any business
other than a Permitted Business.


 


Section 5.14.                         Designation
of Restricted and Unrestricted Subsidiaries.


 


The Board of Directors of
the Company may designate any Restricted Subsidiary of the Company to be an
Unrestricted Subsidiary if that designation would not cause a Default.  If a Restricted Subsidiary of the Company is
designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of
all outstanding Investments owned by the Company and its Restricted
Subsidiaries in the Restricted Subsidiary so designated as an Unrestricted Subsidiary
will be deemed to be an Investment made as of the time of the designation and
will reduce the amount available for Restricted Payments under Section 5.07
hereof or under one or more clauses of the definition of Permitted Investments,
as determined by the Company.  That
designation will only be permitted if the Investment would be permitted at that
time and if the Restricted Subsidiary of the Company otherwise meets the
definition of an Unrestricted Subsidiary. 
The Board of Directors of the Company may redesignate any Unrestricted
Subsidiary to be a Restricted Subsidiary if that redesignation would not cause
a Default.  The determination of Fair
Market Value for the foregoing purposes will be made by the Board of Directors
of the Company, whose determination will be conclusive.


 


Any designation of a
Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to
the Trustee by filing with the Trustee a certified copy of a Board Resolution
giving effect to such designation and Officer’s Certificate certifying that
such designation complies with the preceding conditions and was permitted by Section 5.07
hereof.  If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 5.09 hereof, the Company will be in
default of Section 5.09 hereof.  The
Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary of the Company under this Indenture; provided that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the


 


79

















 


Company
of any outstanding Indebtedness of such Unrestricted Subsidiary, and such
designation will only be permitted if (1) such Indebtedness is permitted
under Section 5.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period, and (2) no Default or Event of Default under this
Indenture would be in existence following such designation.


 


Section 5.15.                         Issuance
and Sale of Capital Stock of Restricted Subsidiaries.


 


The Company will not sell,
and will not permit any of its Restricted Subsidiaries, directly or indirectly,
to issue or sell any Equity Interests of a Restricted Subsidiary of the Company
except:


 


(1)                                  to the Company
or a wholly-owned Restricted Subsidiary of the Company;


 


(2)                                  issuances of
director’s qualifying shares, or sales to foreign nationals of Equity Interests
of Restricted Subsidiaries of the Company (other than Domestic Restricted
Subsidiaries), to the extent required by applicable law;


 


(3)                                  if immediately
after giving effect to such issuance or sale, such Restricted Subsidiary would
no longer constitute a Restricted Subsidiary and any Investment in such Person
remaining after giving effect to such issuance or sale would have been
permitted to be made in accordance with Section 5.07 hereof if made on the
date of such issuance or sale; or


 


(4)                                  issuances or
sales of common stock of a Restricted Subsidiary of the Company, provided that
the Company or such Restricted Subsidiary applies the Net Proceeds, if any, of
any such issuance or sale in accordance with Section 5.10 hereof.


 


Section 5.16.                         Maintenance
of Insurance.


 


The Company will, and will
cause each of its Restricted 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.


 


The Company and the
Guarantors will maintain adequate insurance policies and will upon written
request provide the Collateral Agent with evidence of such insurance coverage
for public liability, property damage, product liability and business
interruption with respect to their businesses and properties against loss or
damage (1) of the kinds customarily carried or maintained by corporations
of established reputation engaged in similar businesses and (2) as may be
required by the Collateral Agreements. 
Upon the request of the Collateral Agent, the Company and the Guarantors
shall furnish to the Collateral Agent full information as to their property and
liability insurance carriers.  The
Collateral Agent, for the benefit of the Holders, as a class, will be named as
an additional insured, with a waiver of subrogation, on all insurance policies
of the Company and the Guarantors, and the Collateral Agent will be named as
loss payee, with thirty (30) days’ notice of cancellation or material change,
on all property and casualty insurance policies of the Company and the
Guarantors.


 


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Section 5.17.                         Payments
for Consent.


 


The Company will not, and
will not permit any of its Subsidiaries to, 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 for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of the Note
Documents, unless such consideration is offered to be paid or is paid to all
Holders 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 5.18.                         Additional
Guarantees.


 


If the Company or any of its
Restricted Subsidiaries organize, acquire or otherwise create or invest in
another Person that is or becomes a Domestic Restricted Subsidiary that is not
a Guarantor, then the Company shall cause such Domestic Restricted Subsidiary
that is not a Guarantor to:


 


(1)                                  execute and
deliver to the Trustee a supplemental indenture in form and substance
reasonably satisfactory to the Trustee pursuant to which such Domestic
Restricted Subsidiary shall unconditionally guarantee on a senior secured basis
all of the Company’s obligations under the Notes and this Indenture on the
terms set forth in this Indenture;


 


(2)                                  execute and
deliver to the Collateral Agent, amendments to the Collateral Agreements and
take such other actions as the Collateral Agent deems reasonably necessary in
order to grant to the Collateral Agent, for the benefit of the Holders, a
perfected Lien in the assets, including the filing of UCC financing statements
in such jurisdictions as may be required by the Collateral Agreements, by law
or as may be reasonably requested by the Collateral Agent;


 


(3)                                  take such
further action and execute and deliver such other documents specified in this
Indenture or otherwise reasonably requested by the Trustee to effectuate the
foregoing; and


 


(4)                                  deliver to the
Trustee an Opinion of Counsel that such supplemental indenture and Note
Guarantee, and amendments to the Collateral Agreements and any other documents
required to be delivered have been duly authorized, executed and delivered by
such Domestic Restricted Subsidiary and constitute legal, valid, binding and
enforceable obligations of such Domestic Restricted Subsidiary and such other
opinions regarding the perfection of such Liens in the assets of such Domestic
Restricted Subsidiary.


 


Thereafter, such Domestic
Restricted Subsidiary shall be a Guarantor for all purposes of this Indenture.


 


Section 5.19.                         Anti-Layering.


 


The Company will not incur,
and will not permit any Guarantor to incur, any Indebtedness that is
contractually subordinated in right of payment to any other Indebtedness of


 


81

















 


the
Company or such Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Note Guarantee
on substantially identical terms.


 


Section 5.20.                         Further
Assurances Relating to Collateral.


 


The Company shall, and shall
cause each Guarantor to, at their sole cost and expense, execute and deliver
all such agreements and instruments as the Collateral Agent or the Trustee
shall reasonably request to more fully or accurately describe the property
included as Collateral or the obligations intended to be secured by the
Collateral Agreements.  The Company
shall, and shall cause each of its Restricted Subsidiaries to, at their sole
cost and expense, execute, acknowledge and deliver all such security documents,
certificates, notices and other documents and (subject to the provisions of the
Intercreditor Agreement) take such other actions as shall be reasonably
required, or as the Collateral Agent or the Trustee shall reasonably request to
create, perfect, protect, continue the perfection of, assure or enforce the
Note Liens and benefits intended to be conferred, in each case as contemplated
by the Note Documents for the benefit of the Holders.


 


Section 5.21.                         Real
Estate Mortgages and Filings.


 


With respect to any fee
interest in any land and the related improvements (including fixtures) thereon
(individually and collectively, the “Premises”) (i) owned
by the Company or a Restricted Subsidiary of the Company on the Exchange Offer
Completion Date and that has a Fair Market Value on such date of greater than
$1.0 million or (ii) acquired by the Company or a Restricted Subsidiary of
the Company after the Exchange Offer Completion Date for a purchase price of
greater than $1.0 million, within ninety (90) days of the Exchange Offer
Completion Date in the case of clause (i) above and within ninety (90)
days of the acquisition thereof in the case of clause (ii) above:


 


(1)                                  the Company
shall deliver to the Collateral Agent, as mortgagee, fully-executed
counterparts of mortgages, each dated as of the Exchange Offer Completion Date
or the date of acquisition of such property, as the case may be, duly executed
by the Company or the applicable Restricted Subsidiary, together with evidence
of the completion (or satisfactory arrangements for the completion), of all
recordings and filings of such mortgage as may be necessary to create a valid,
perfected Lien, subject to Permitted Liens, against the properties purported to
be covered thereby;


 


(2)                                  the Company
shall deliver to the Collateral Agent, mortgagee’s title insurance policies in
favor of the Collateral Agent, as mortgagee for the ratable benefit of the
Collateral Agent, the Trustee and the Holders in an amount equal to 100% of the
Fair Market Value of the Premises purported to be covered by the related
mortgage, insuring that title to such property is marketable and that the
interests created by the mortgage constitute valid Liens thereon free and clear
of all Liens, defects and encumbrances other than Permitted Liens;


 


(3)                                  the Company
shall deliver to the Collateral Agent, with respect to each of the covered
Premises, the most recent survey of such Premises, together with either (i) an
updated survey certification in favor of the Trustee and


 


82

















 


the Collateral Agent from the applicable surveyor
stating that, based on a visual inspection of the property and the knowledge of
the surveyor, there has been no change in the facts depicted in the survey or (ii) an
affidavit and/or indemnity from the Company or the applicable Restricted
Subsidiary, as the case may be, stating that to its knowledge there has been no
change in the facts depicted in the survey, other than, in each case, changes
that do not materially adversely affect the use by the Company or such
Restricted Subsidiary, as applicable, of such Premises for the Company or such
Restricted Subsidiary’s business as so conducted, or intended to be conducted,
at such Premises at the time of delivery thereof and in each case, in form
sufficient for the title insurer issuing the title policy to remove the
standard survey exception from such policy and issue a survey endorsement to
such policy; and


 


(4)                                  the Company
shall cause to be delivered to the Collateral Agent, an Opinion of Counsel that
such mortgage and any other documents required to be delivered have been duly
authorized, executed and delivered by the Company or such Restricted
Subsidiary, as applicable, and constitute legal, valid, binding and enforceable
obligations of the Company or such Restricted Subsidiary, as applicable, and
such other opinions regarding the perfection of such Liens created by such
mortgage in such Premises as the Collateral Agent shall reasonably request.


 


Section 5.22.                         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 (1) 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 (2) 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 Company’s 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.


 


Section 5.23.                         New
License Subsidiary; Transfer of FCC Licenses.


 


Promptly following the
Exchange Offer Completion Date, the Company shall form, or cause to be formed,
the New License Subsidiary.  The Company
shall take all necessary actions to designate the New License Subsidiary as a
Domestic Restricted Subsidiary hereunder (and under the indenture governing the
New Notes from and after the Mandatory Redemption Date), and shall comply with
the other provisions hereof in connection with such designation.  The Company shall promptly make application
to the FCC for any required regulatory or other approvals to permit the Company
and any other applicable Subsidiary to transfer to the New License Subsidiary
all of the FCC Licenses issued to the Company or any Subsidiary, and shall use
its commercially reasonable efforts to obtain any such required approvals as
soon as practicable.  Promptly upon
obtaining any such required approvals, the Company shall, or shall cause, all
of such FCC Licenses to be transferred to the New License Subsidiary.  The Company


 


83

















 


and
the Guarantors shall not permit any Existing Note Obligations to be secured,
directly or indirectly, by a Lien on any assets or rights of, or any Equity
Interests in, the New License Subsidiary. 
The Company and the Guarantors shall not permit the New License
Subsidiary to incur, maintain or in any way be obligated for any Existing Note
Obligations except such Existing Note Obligations as are subordinated to the
New Note Obligations as set forth in the Existing Notes Indenture as modified
and amended in the Exchange Offer.


 


ARTICLE
6.


SUCCESSORS


 


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


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly:


 


(1)                                  consolidate or
merge with or into another Person (whether or not the Company or such
Restricted Subsidiary is the surviving corporation); or


 


(2)                                  sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries taken as a
whole, in one or more related transactions, to another Person, unless:


 


A.                                   if the Company
or such Restricted Subsidiary is a party to such transaction, either (i) the
Company or such Restricted Subsidiary is the surviving corporation or (ii) the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, conveyance or other
disposition has been made is a corporation organized or existing under the laws
of the United States, any state of the United States or the District of
Columbia;


 


B.                                     if the Company
or such Restricted Subsidiary is a party to such transaction, the Person formed
by or surviving any such consolidation or merger (if other than the Company or
such Restricted Subsidiary) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the
obligations of the Company or such Restricted Subsidiary under the Notes and
this Indenture pursuant to agreements reasonably satisfactory to the Trustee;


 


C.                                     immediately
after such transaction, no Default or Event of Default exists;


 


D.                                    except to the
extent waived by the FCC or as would not have a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its Restricted Subsidiaries, taken as a whole, the
Company and its Restricted Subsidiaries have obtained all required FCC consents


 


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under the Communications Act in relation to such
sale, assignment, transfer, conveyance, or other disposition; and


 


E.                                      the Company or
the Person formed by or surviving any such consolidation or merger or to which
such sale, assignment, transfer, conveyance or other disposition is made (if
other than the Company), will have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction.


 


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


 


This Section 6.01 will
not apply to:


 


(1)                                  a merger of the
Company or a Restricted Subsidiary of the Company with an Affiliate solely for
the purpose of reincorporating the Company in another jurisdiction; or


 


(2)                                  any
consolidation or merger, or any sale, assignment, transfer, conveyance, lease
or other disposition of assets between or among the Company and its Restricted
Subsidiaries that are Guarantors.


 


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 Restricted Subsidiaries in accordance with Section 6.01 hereof, the
successor corporation formed by such consolidation or into or with which the
Company or such Restricted 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, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the “Company” or to
a “Restricted Subsidiary” or “Guarantor” shall refer instead to the successor
corporation and not to the Company or such Restricted Subsidiary or Guarantor,
as the case may be), and may exercise every right and power of the Company or
such Restricted Subsidiary or Guarantor under this Indenture with the same
effect as if such successor Person had been named as the Company or a
Restricted 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.


 


ARTICLE
7.


DEFAULTS
AND REMEDIES


 


Section 7.01.                         Events
of Default.


 


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


 


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(1)                                  default for
thirty (30) days in the payment when due of interest on the Notes;


 


(2)                                  default in the
payment when due (at maturity or otherwise) of the principal or Aggregate
Accreted Principal Amount of, or premium, if any, on, the Notes;


 


(3)                                  default in the
Company’s obligation to deliver shares of Common Stock, cash or other property
upon conversion of the Notes as required under this Indenture and such default
continues for a period of five (5) days;


 


(4)                                  failure by the
Company or any of its Restricted Subsidiaries to comply with the provisions of
Sections 3.08, 5.07, 5.09, 5.10 or 6.01 hereof;


 


(5)                                  failure by the
Company or any of its Restricted Subsidiaries for sixty (60) 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 to comply with any of the other agreements
in this Indenture or any Collateral Agreement; provided,
however, that with respect to a failure
by the Company to comply with Section 5.03 hereof, such period shall be
ninety (90) days, rather than sixty (60) days;


 


(6)                                  default 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 Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the date of this
Indenture, if that default:


 


A.                                   is caused by a
failure to pay principal of, or interest or premium, if any, on, such
Indebtedness when due, or if applicable, prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a “Payment Default”); or


 


B.                                     results in the
acceleration of such Indebtedness prior to its express maturity,


 


and, in each case, the principal amount of
any 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;


 


(7)                                  failure by the
Company or any of its Restricted Subsidiaries to pay final judgments entered by
a court or courts of competent jurisdiction aggregating in excess of $10.0
million, which judgments are not paid, discharged or stayed for a period of
sixty (60) days;


 


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(8)                                  (i) any
revocation, cancellation or relinquishment, which action is not subject to
further appeal, of the Company’s or its Restricted Subsidiaries’ (a) 24
GHz FCC Licenses covering a population equal to or greater than 5.0% of the
population covered by all of the Company’s and its Restricted Subsidiaries’ 24
GHz FCC Licenses or (b) 39 GHz licenses covering a population equal to or
greater than 33 1/3% of the population covered by all of the Company’s and its
Restricted Subsidiaries’ 39 GHz licenses, with the population in each case
determined by the most recent official census conducted by the U.S. government
and (ii) such FCC License revocation, cancellation or relinquishment,
individually or in the aggregate, has a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of the
Company and its Restricted Subsidiaries taken as a whole;


 


(9)                                  the Company or
any of its Restricted Subsidiaries, pursuant to or within the meaning of the
Bankruptcy Code:


 


A.                                   commences a
voluntary case;


 


B.                                     consents to the
entry of an order for relief against it in an involuntary case;


 


C.                                     consents to the
appointment of a custodian, receiver, trustee, assignee, liquidator or similar
official under the Bankruptcy Code of it or for all or substantially all of its
property;


 


D.                                    makes a general
assignment for the benefit of its creditors; or


 


E.                                      generally is
not paying its debts as they become due;


 


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


 


A.                                   is for relief
against the Company or any of its Restricted Subsidiaries in an involuntary
case;


 


B.                                     appoints a
custodian, receiver, trustee, assignee, liquidator or similar official under
any Bankruptcy Code of the Company or any of its Restricted Subsidiaries, or
for all or substantially all of the property of the Company or any of its
Restricted Subsidiaries; or


 


C.                                     orders the
liquidation of the Company or any of its Restricted Subsidiaries;


 


(11)                            any Collateral
Agreement at any time for any reason shall cease to be in full force and effect
in all material respects, or any Collateral Agreement ceases to give the
Collateral Agent the Liens (other than Liens securing Collateral, individually
or in the aggregate, having a Fair Market Value of less than $500,000), rights,
powers and privileges purported to be created thereby, superior to and prior to
the rights of all third Persons other than


 


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the holders of Permitted Liens and subject to no
other Liens except as expressly permitted by any Collateral Agreement or this
Indenture;


 


(12)                            the Company or
any of its Restricted Subsidiaries contest in any manner the effectiveness,
validity, binding nature or enforceability of any Collateral Agreement; or


 


(13)                            the Note
Guarantee of any Guarantor ceases to be in full force and effect or is declared
to be null and void and unenforceable or is found to be invalid or any
Guarantor denies its liability under its Note Guarantee (other than by reason of
release of a Guarantor in accordance with the terms of this Indenture).


 


Section 7.02.                         Acceleration.


 


In the case of an Event of
Default specified in clause (9) or (10) of Section 7.01 hereof,
with respect to the Company or any Restricted Subsidiary of the Company, all
outstanding Notes will become due and payable immediately without further
action or notice.  If any other Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. 
If the Notes become due and payable at any time prior to maturity, the
amount that shall become due and payable shall be the Aggregate Accreted
Principal Amount of such Notes.


 


Holders of a majority in
aggregate principal amount of the then outstanding Notes by written notice to
the Trustee may, on behalf of the Holders of all of the Notes, rescind an
acceleration or waive any existing Default or Event of Default and its
consequences under this Indenture if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal or Aggregate Accreted Principal Amount, interest or premium that has
become due solely because of the acceleration) have been cured or waived.  The Trustee may withhold from the Holders of
the Notes then outstanding notice of any continuing Default or Event of Default
under this Indenture if it determines that withholding notice is in their
interest, except a Default or Event of Default under this Indenture relating to
the payment of principal or Aggregate Accreted Principal Amount, interest or
premium, if any.  Subject to the
provisions of this Indenture relating to the duties of the Trustee, including, without
limitation, Section 8.01 hereof, in case an Event of Default occurs and is
continuing, the Trustee will be under no obligation to exercise any of the
rights or powers under this Indenture at the request or direction of any
Holders unless such Holders have offered to the Trustee reasonable indemnity or
security against any loss, liability or expense.


 


If an Event of Default
occurs on or prior to November 15, 2010 by reason of any willful action
(or inaction) taken (or not taken) by or on behalf of the Company or the
Guarantors with the intention of avoiding the prohibition on redemption of the
Notes prior to November 15, 2010 or the requirement to pay the Designated
Event Make-Whole Amount, then, upon acceleration of the Notes, any additional
premium shall also become due and immediately payable, to the extent permitted
by law, in an amount equal to the Designated Event Make-Whole Amount.


 


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 or Aggregate Accreted Principal Amount,
premium, if


 


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any,
and interest on the Notes or to enforce the performance of any provision of the
Notes, the Note Guarantees 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 or
Aggregate Accreted Principal Amount of, premium 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.


 


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
Agreements that the Trustee determines may be unduly prejudicial to the rights
of other Holders or that may involve the Trustee in personal liability or
expense.


 


Section 7.06.                         Limitation
on Suits.


 


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


 


(1)                                  such Holder has
previously given the Trustee written notice that an Event of Default is
continuing;


 


(2)                                  Holders of at
least 25% in aggregate principal amount of the then outstanding Notes
(including Additional Notes, if any) have requested in writing that the Trustee
pursue the remedy;


 


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


 


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


 


(5)                                  during such
sixty (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 and Aggregate Accreted Principal Amount, premium 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 this Indenture upon any property subject to such Lien.


 


Section 7.08.                         Collection
Suit by Trustee.


 


If an Event of Default
specified in Section 7.01(1) or (2) 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 Guarantors for the whole amount of
principal and Aggregate Accreted Principal Amount, of, premium and interest
remaining unpaid on the Notes and interest on overdue principal and Aggregate
Accreted Principal Amount 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 allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes and
the Note Guarantees, including the Guarantors), their creditors or their
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


 


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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
(including any predecessor Trustee), the Collateral Agent, the Paying Agent,
the Conversion Agent and the Registrar, their respective 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 (including any predecessor Trustee) or the Collateral Agent, the Paying
Agent, the Conversion Agent or the Registrar, as the case may be, and the costs
and expenses of collection;


 


Second:      to Holders for
amounts due and unpaid on the Notes for principal and Aggregate Accreted
Principal Amount, premium and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for principal
and Aggregate Accreted Principal Amount, premium 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 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 7.11 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.


 


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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 Agreements 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 and the
Collateral Agreements, and the Trustee need perform only those duties that are
specifically set forth in this Indenture and the Collateral Agreements, and no
others, and no implied covenants or obligations shall be read into this
Indenture and the Collateral Agreements 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 and the Collateral Agreements.  However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture and the Collateral Agreements.


 


(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;


 


(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.


 


(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 or the Collateral Agreements 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.


 


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(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 Officer’s 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 Officer’s 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.


 


(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 Officer’s Certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officer’s Certificate may be signed
by any Person authorized to sign an Officer’s Certificate, including any Person
specified as to authorized in any such certificate previously delivered and not
suspended.


 


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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 ninety (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, the Collateral Agreements 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,
the Collateral Agreements 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 a notice of the Default or Event of Default within ninety
(90) days after it occurs.  Except in the
case of a Default or Event of Default in payment of principal or Aggregate
Accreted Principal Amount, of, premium 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.


 


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


 


Within sixty (60) days after
each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail
to the Holders 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 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, including for any Agent capacity in which it acts.  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


 


94

















 


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, including in any Agent capacity in which it acts,
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 gross 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 8.07, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee,
except that 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(9) or
(10) 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 Code.


 


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 8.08.


 


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:


 


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


 


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


 


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


 


(4)                                  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.


 


If a successor Trustee is
appointed and does not take office within thirty (30) days after the retiring
Trustee resigns, the retiring Trustee may appoint a successor Trustee at any
time prior to the date on which a successor Trustee takes office.  If a successor Trustee does not take office
within sixty (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 hereof, such Holder may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. 
Within one year after the successor Trustee appointed by the Company or
a court pursuant to this Section 8.08 takes office, the Holders of a
majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace such 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 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 8.


 


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.


 


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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.


 


Section 8.12.                         Powers
of Trustee Subject to Communications Act.


 


All powers of the Trustee
under this Indenture, in its capacity as trustee of this Indenture, are subject
to applicable provisions of the Communications Act, including, without
limitation, the requirements of prior approval for de facto
or de jure transfer of control or assignment
of Title III licenses, to the extent that such requirements are applicable.


 


Section 8.13.                         Trustee
as Paying Agent, Conversion Agent, Registrar and Collateral Agent.


 


References to the Trustee in
Sections 8.01, 8.02, 8.03, 8.04, 8.07, 8.08, 8.09 and 8.12 hereof shall include
the Trustee in its role as Paying Agent, as Conversion Agent, as Registrar and
as Collateral Agent.


 


ARTICLE
9.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


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


 


The Company may at any time,
at the option of its Board of Directors evidenced by a Board Resolution, elect
to have either Section 9.02 or 9.03 hereof be applied to all outstanding
Notes and the Note Guarantees upon compliance with the conditions set forth below
in this Article 9.


 


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 and the Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 9.04 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes
(including the Note Guarantees) on the date the conditions set forth below are
satisfied (hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means that
the Company and the Guarantors shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes and the Note
Guarantees, 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 Agreements 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 payments in respect of the
principal and Aggregate Accreted Principal Amount of, and premium, and
interest, if any, on, such Notes when such payments are due from the trust
described under Section 9.04(1) hereof; (b) the rights of
Holders 


 


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of outstanding Notes to
convert such Notes as provided by Article 4 hereof; (c) the Company’s
and Guarantors’ obligations with respect to such Notes and Note Guarantees
under Article 2 and Section 5.02 hereof; (d) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company’s and
the Guarantors’ obligations in connection therewith; and (e) this Article 9.  Subject to compliance with this Article 9,
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 their
respective obligations under the covenants contained in Sections 5.07 through 5.19
hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 9.04 hereof 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 and Note Guarantees, the Company and the Guarantors 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 and Note Guarantees 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(4) through 7.01(6) hereof
shall not constitute Events of Default.


 


Section 9.04.                         Conditions
to Legal or Covenant Defeasance.


 


The following shall be
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:


 


(1)                                 the Company must irrevocably
deposit with the Trustee, in trust, 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, in the opinion of a nationally recognized
investment bank, appraisal firm or firm of independent public accountants, to
pay the principal and Aggregate Accreted Principal Amount of, and interest and
premium on, the outstanding Notes on the stated date for payment thereof;


 


(2)                                 in the case of an election
under Section 9.02 hereof, the Company will 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 


 


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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 will 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;


 


(3)                                 in the case of an election
under Section 9.03 hereof, the Company will 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;


 


(4)                                 no Default or Event of
Default will have occurred and be continuing on the date of such deposit (other
than a Default or Event of Default resulting from the borrowing of funds to be
applied to such deposit) or, insofar as Section 7.01(9) or 7.01(10) hereof
is concerned, at any time in the period ending on the ninety-first (91st) day
after the date of deposit and the deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to which the
Company or a Guarantor is a party or by which the Company or a Guarantor is
bound;


 


(5)                                 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 of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;


 


(6)                                 the Company will have
delivered to the Trustee an Officer’s Certificate stating that the deposit was
not made by the Company with the intent of preferring the Holders over the
other creditors of the Company and its Subsidiaries or with the intent of
defeating, hindering, delaying or defrauding any creditors of the Company and
its Subsidiaries or others; and


 


(7)                                 the Company will have
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that all conditions precedent relating to Legal Defeasance or
Covenant Defeasance have been complied with.


 


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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 and Aggregate Accreted Principal Amount,
premium 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 9
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.


 


The Collateral will be
released from the Lien securing the Notes, as provided under Section 11.04
hereof, upon a Legal Defeasance or Covenant Defeasance in accordance with the
provisions described in this Article 9.


 


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 and Aggregate Accreted Principal Amount of, and
interest or premium on, any Note and remaining unclaimed for two years after
such principal and Aggregate Accreted Principal Amount, and interest or premium
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 thirty (30) days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.


 


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Section 9.07.                         Reinstatement.


 


If the Trustee or Paying
Agent is unable to apply any U.S. 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 or
Aggregate Accreted Principal Amount of, premium 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, any Collateral Agreement, the Notes and the Note
Guarantees without the consent of any Holder:


 


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


 


(2)                                 to provide for
uncertificated Notes in addition to or in place of certificated Notes;


 


(3)                                 to provide for the
assumption of the obligations of the Company or any Guarantor to Holders in the
case of a merger or consolidation or sale of all or substantially all of the
Company’s or any Guarantor’s assets in accordance with the provisions of this
Indenture;


 


(4)                                 to effect the release of a
Guarantor from its Note Guarantee and the termination of such Note Guarantee,
all in accordance with the provisions of this Indenture governing such release
and termination;


 


(5)                                 to add any Note Guarantee or
to secure the Notes or any Note Guarantee;


 


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


 


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


 


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


 


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(9)                                 to provide for a successor
trustee in accordance with the provisions of this Indenture.


 


Upon the request of the
Company accompanied by a Board Resolution 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, the Guarantors and the Trustee may amend
or supplement this Indenture, any Collateral Agreement, the Notes and the Note
Guarantees with the consent of the Holders of at least a majority in aggregate
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 and Note
Guarantees), and, subject to Sections 7.04 and 7.07 hereof, any existing
Default or Event or Default (other than a Default or Event of Default in the
payment of the principal and Aggregate Accreted Principal Amount of, premium 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,
any Collateral Agreement or the Notes and Note Guarantees may be waived with
the consent of the Holders of a majority in aggregate 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 Board Resolution 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 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, the Note Guarantees or any
Collateral Agreement 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.


 


It shall not be necessary
for the consent of the Holders under this Section 10.02 to approve the
particular form of any proposed amendment, supplement 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 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 or Collateral Agreement or
waiver.


 


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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 10.02
shall be deemed to be a change to this Section 10.02.


 


Subject to Sections 7.04 and
7.07 hereof, the Holders of a majority in aggregate principal amount of the
then outstanding Notes (including Additional Notes, if any) voting as a single
class may waive compliance by the Company, the Guarantors or the Trustee in a
particular instance with any provision of this Indenture, any Collateral
Agreement, the Notes or the Note Guarantees. 
However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section 10.02 may not (with respect to any
Notes held by a non-consenting Holder):


 


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


 


(2)                                 reduce the principal or
Aggregate Accreted Principal Amount 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;


 


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


 


(4)                                 waive a Default or Event of
Default in the payment of principal or Aggregate Accreted Principal Amount of,
or interest on, or premium, if any, 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);


 


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


 


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


 


(7)                                 release any Collateral from
the Liens of the pledge and security agreements, except as contemplated by the
pledge and security agreements;


 


(8)                                 waive a redemption payment
or mandatory redemption with respect to any Notes;


 


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


 


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


 


(11)                           make any change in Section 7.04
or 7.07 hereof or in the preceding provisions relating to amendment, supplement
and waiver.


 


Section 10.03.                  Compliance
with Trust Indenture Act.


 


Every amendment or
supplement to this Indenture, the Notes, the Note Guarantees or the Collateral
Agreements 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 amendment,
supplement or waiver 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 or the
Collateral Agent, as applicable, shall sign any amendment or supplement to this
Indenture, any Collateral Agreement, the Notes or the Note Guarantees
authorized pursuant to this Article 10 if the amendment or supplement does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee or the Collateral Agent, as applicable. 
The Company and Guarantors may not sign an amendment or supplement to
this Indenture, any Collateral Agreement, the Notes or the Note Guarantees
until the Board of Directors of the Company or the Guarantor, as applicable,
approves it.  In executing any amendment
or supplement to this Indenture, any Collateral Agreement, the Notes or the
Note Guarantees, the Trustee or the Collateral Agent, as applicable, 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 amendment or supplement to this Indenture, any Collateral
Agreement, the Notes or the Note Guarantees is authorized or permitted by this
Indenture.


 


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ARTICLE
11.

COLLATERAL AND SECURITY


 


Section 11.01.                  Collateral
Agreements.


 


(a)                                  The due and
punctual payment of the principal of and interest, if any, on the Notes and the
Note Guarantees 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 the Note Guarantees and performance
of all other obligations of the Company and the Guarantors to the Holders, the
Trustee or the Collateral Agent under this Indenture, the Notes, the Note
Guarantees and the Collateral Agreements, according to the terms hereunder or
thereunder, shall be secured as provided in the Collateral Agreements.  Each Holder, by its acceptance thereof,
consents and agrees to the terms of the Collateral Agreements and the
Intercreditor Agreement (including, without limitation, the provisions
providing for foreclosure and release of the Collateral) as the same may be in
effect or may be amended from time to time in accordance with their terms and
authorizes and directs each of the Collateral Agent and the Trustee, as the
case may be, to enter into the Collateral Agreements and to perform its obligations
and exercise its rights thereunder in accordance therewith.  The Company and the Guarantors shall deliver
to the Trustee copies of all documents delivered to the Collateral Agent
pursuant to any Collateral Agreements, and shall do or cause to be done all
such acts and things as may be necessary or proper, or that the Collateral
Agent from time to time may request, or as may be required by the provisions of
any Collateral Agreement, to assure and confirm to the Trustee and the
Collateral Agent that the Collateral Agent holds, for the benefit of itself,
the Trustee and the Holders, duly created and perfected Note Liens upon the
Collateral (including any After-Acquired Property), in each case, as
contemplated hereby, by any Collateral Agreements 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 Agreements to
create and maintain, as security for the Obligations of the Company and the Guarantors
hereunder, a valid and enforceable perfected first priority Lien in and on all
the Collateral, in favor of the Collateral Agent and the Trustee, as the case
may be, for the benefit of the Collateral Agent, the Trustee and the Holders
and other Indebtedness subject to the Collateral Agreements superior to and
prior to the rights of all third Persons (other than holders of Permitted
Liens) and subject to no other Liens other than Permitted Liens.  The Company and the Guarantors hereby agree
that the Collateral Agent shall hold the Collateral in trust for the benefit of
itself, the Trustee and the Holders, in each case pursuant to the terms of the
Collateral Agreements and the Intercreditor Agreement.


 


(b)                                 The Company and
the Guarantors agree to record and file, at its or their own expense, financing
statements (and continuation statements when applicable) with respect to the
Collateral now existing or hereafter created meeting the requirements of
applicable law in such manner and in such jurisdictions as are necessary to
perfect, and maintain the perfection of, the Note Liens, and deliver a file
stamped copy of each such financing statement or other evidence of filing to
the Trustee and the Collateral Agent, promptly. 
Neither the Trustee nor the Collateral Agent shall be under any
obligation whatsoever to file such financing or continuation statements or to
make any other filing under the UCC in connection therewith.


 


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(c)                                  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.


 


(d)                                 The Trustee and
each Holder, by accepting the Notes and the Note Guarantees, acknowledges that,
as more fully set forth in the Collateral Agreements and the Intercreditor
Agreement, the Collateral as now or hereafter constituted shall be held for the
benefit of all the Holders, the Collateral Agent and the Trustee, and that the
Lien of the Collateral Agreements in respect of the Trustee, the Collateral
Agent and the Holders is subject to and qualified and limited in all respects
by the Collateral Agreements and the Intercreditor Agreement and actions that
may be taken thereunder.


 


Section 11.02.                  Recording
and Opinions.


 


(a)                                  At the time of
execution and delivery of this Indenture, the Company shall furnish or cause to
be furnished to the Trustee Opinion(s) of Counsel substantially in the
form of the Opinion of Counsel delivered to the trustee under the Existing
Notes Indenture on the Original Issue Date.


 


(b)                                 Promptly but in
no event later than thirty (30) days after the execution and delivery of this
Indenture, the Company shall furnish or cause to be furnished to the Trustee
Opinion(s) of Counsel required by TIA Section 314(b)(1) and
thereafter Opinion(s) of Counsel required by TIA Section 314(b)(2).


 


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


 


Section 11.03.                  Agreements
Requiring Application of Proceeds of Collateral.


 


Neither the Company nor any
of its Restricted Subsidiaries shall enter into any agreement that requires the
proceeds received from any sale of Collateral to be applied to repay, redeem,
defease or otherwise acquire or retire any debt of any Person, other than as
permitted by this Indenture, the Notes, the Note Guarantees, the Collateral
Agreements and the Intercreditor Agreement.


 


Section 11.04.                  Release
of Collateral.


 


(a)                                  Subject to
subsections (b), (c), (d) and (e) of this Section 11.04,
Collateral shall automatically be released from the Lien and security interest
created by the Collateral Agreements at any time or from time to time in
accordance with the provisions of the Collateral Agreements or as provided
hereby.  In addition, upon the request of
the Company pursuant to an Officer’s Certificate and Opinion of Counsel
certifying that all conditions precedent hereunder have been met and stating
whether or not such release is in connection with an Asset Sale (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 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 Officer’s Certificate
and Opinion 


 


106

















 


of Counsel, 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
Collateral permitted to be released pursuant to this Indenture or the
Collateral Agreements.


 


(b)                                 The Note Liens
upon the Collateral will no longer secure the Notes or any other Note
Obligations, and the right of the Holders to the benefits and proceeds of the
Note Liens on the Collateral will terminate and be discharged automatically:


 


(i)                                     upon satisfaction and
discharge of this Indenture as set forth under Article 13 hereof;


 


(ii)                                  upon a Legal Defeasance or
Covenant Defeasance of the Notes under this Indenture as set forth under Article 9
hereof;


 


(iii)                               upon payment in full and
discharge of all Notes outstanding under this Indenture and all Note
Obligations that are outstanding, due and payable under this Indenture at the
time the Notes are paid in full and discharged;


 


(iv)                              in whole or in part, with
the consent of the Holders in accordance with the provisions of this Indenture
described under Article 10 hereof; or


 


(v)                                 to the extent not otherwise
terminated and discharged, with respect to any asset that is or becomes an
Excluded Asset.


 


(c)                                  No Collateral
shall be released from the Liens and security interest created by the
Collateral Agreements pursuant to the provisions of the Collateral Agreements
unless (i) there shall have been delivered to the Collateral Agent the
Officer’s Certificate and Opinion of Counsel required by this Section 11.04
and (ii) the Collateral Agent and the Trustee have received all
documentation, if any, that may be required by the TIA.  In connection with any release of Collateral,
the Collateral Agent will promptly execute any release documentation with
respect thereto reasonably requested by the Company.  Upon the payment in full of all Note
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 Note
Obligations have been paid in full, and instruct the Collateral Agent to
release the Liens pursuant to this Indenture and the Collateral Agreements.


 


(d)                                 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 Collateral pursuant to the provisions of
the Collateral Agreements shall be effective as against the Holders.


 


(e)                                  The release of
any Collateral from the terms of this Indenture and the Collateral Agreements
shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the 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 Agreements and relating
to the substitution therefor of any property or securities to be subjected to
the Lien and security interest of the Collateral Agreements, to be complied
with.  


 


107

















 


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 11.05.                  Certificates
of the Company.


 


The Company shall furnish to
the Trustee and the Collateral Agent, prior to each proposed release of
Collateral pursuant to any Collateral Agreements, (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 11.06.                  Certificates
of the Trustee.


 


In the event that the
Company wishes to release Collateral in accordance with the Collateral
Agreements and has delivered the certificates and documents required by the
Collateral Agreements 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 11.05 hereof, shall deliver a
certificate to the Collateral Agent setting forth such determination.


 


Section 11.07.                  Authorization
of Actions to Be Taken by the Trustee Under the Collateral Agreements.


 


Subject to the provisions of
Section 8.01 and 8.02 hereof, and to the Collateral Agreements and the
Intercreditor Agreement, each of the Trustee or the Collateral Agent may, in
its sole discretion and without the consent of the Holders, on behalf of the
Holders, take all actions it deems necessary or appropriate in order to (1) enforce
any of the terms of the Collateral Agreements and the Intercreditor Agreement
and (2) collect and receive any and all amounts payable in respect of the
Collateral in respect of the Obligations of the Company and the Guarantors
hereunder and thereunder.  Subject to the
provisions of the Collateral Agreements and the Intercreditor Agreement, 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 Collateral by any acts that may be unlawful or in violation
of the Collateral Agreements, the Intercreditor Agreement or this Indenture,
and such suits and proceedings as the Trustee or the Collateral Agent may deem
expedient to preserve or protect its interests and the interests of the Holders
in the 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 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, the Collateral
Agent or the Trustee).


 


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Section 11.08.                  Authorization
of Receipt of Funds by the Trustee Under the Collateral Agreements.


 


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


 


Section 11.09.                  Relative
Rights.


 


Nothing in the Note
Documents will:


 


(1)                                  impair, as between the
Company and the Holders, the Company’s obligations to pay the principal of,
premium, if any, and interest on, the Notes in accordance with the terms of the
Notes or any of the Company’s other obligations or any Guarantor’s obligations;


 


(2)                                  affect the relative rights
of Holders as against any of the Company’s or the Guarantors’ other creditors
(other than holders of Working Capital Facility Liens and Pari Passu
Indebtedness Liens);


 


(3)                                  restrict the right of any
Holder to sue for payments that are then due and owing (but not enforce any
judgment in respect thereof against any Collateral to the extent specifically
prohibited by the Intercreditor Agreement);


 


(4)                                  restrict or prevent any
Holder, the Trustee or the Collateral Agent from exercising any of its rights
or remedies upon a Default or Event of Default not specifically restricted or
prohibited by the Intercreditor Agreement; or


 


(5)                                  restrict or prevent any
Holder, the Trustee or the Collateral Agent from taking any lawful action in an
insolvency or liquidation proceeding not specifically restricted or prohibited
by the Intercreditor Agreement.


 


Section 11.10.                  Limitation
on Duty of Trustee and Collateral Agent as to Collateral; Indemnification.


 


(a)                                  Beyond the
exercise of reasonable care in the custody thereof, neither the Trustee nor the
Collateral Agent shall have any duty as to any Collateral in its possession or
control or in the possession or control of any agent or bailee or any income
thereon or as to preservation of rights against prior parties or any other
rights pertaining thereto and neither the Trustee nor the Collateral Agent
shall be responsible for filing any financing or continuation statements or
recording any documents or instruments in any public office at any time or
times or otherwise perfecting or maintaining the perfection of any security
interest in the Collateral.  The Trustee
and Collateral Agent shall be deemed to have exercised reasonable care in the
custody of the Collateral in its or their possession if the Collateral is
accorded treatment substantially equal to that which it or they accord their
own property and shall not be liable or responsible for any loss or diminution
in the value of any of the Collateral, by reason of the act or omission of any
carrier, forwarding agency or other agent or bailee selected by the Trustee or
the Collateral Agent in good faith.


 


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(b)                                 Neither the
Trustee nor the Collateral Agent shall be responsible for the existence,
genuineness or value of any of the Collateral or for the validity, perfection,
priority or enforceability of the Note Liens in any of the Collateral, whether
impaired by operation of law or by reason of any action or omission to act on
its or their part hereunder, except to the extent such action or omission
constitutes gross negligence, bad faith or willful misconduct on the part of
the Trustee or the Collateral Agent, as applicable, for the validity or
sufficiency of the Collateral or any agreement or assignment contained therein,
for the validity of the title of the Company to the Collateral, for insuring
the Collateral or for the payment of taxes, charges, assessments or Note Liens
upon the Collateral or otherwise as to the maintenance of the Collateral.


 


(c)                                  The Company
shall indemnify the Collateral Agent as set forth in the Collateral Agreements.


 


Section 11.11.                  Authorization
of Intercreditor Agreement.


 


The Holders, by their
acceptance of the Notes, hereby irrevocably authorize and direct the Trustee to
enter into the Intercreditor Agreement on behalf of the Trustee and the
Holders, and agree to be bound by the provisions thereof as if they were direct
signatories thereof, and to take all actions required to be taken by them in
accordance with the provisions thereof, and to otherwise comply therewith, and
irrevocably authorize and direct the Trustee to take all actions on its or the
Holders’ behalf as are necessary to comply with the provisions thereof.  The rights and remedies of the Trustee, on
behalf of the Holders, under this Indenture shall be subject to the
Intercreditor Agreement as in effect from time to time.  In the event of any conflict between the
terms of the Intercreditor Agreement and this Indenture, the terms of the
Intercreditor Agreement shall govern and control.


 


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 and Aggregate Accreted Principal Amount of, premium 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 and Aggregate Accreted Principal Amount of and premium 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.


 


110

















 


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
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.  To the extent permitted by
applicable law, 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 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.


 


To the extent permitted by
applicable law, 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, to the extent permitted by applicable law (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 Note
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 the Bankruptcy Code, 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 be limited to the maximum amount as
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.


 


111

















 


Section 12.03.                  Execution
and Delivery of Note Guarantee.


 


To evidence the Note
Guarantee set forth in Section 12.01 hereof, each Guarantor agrees that a
notation of such Note Guarantee substantially in the form of Exhibit E
hereto will be endorsed by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture will be
executed on behalf of such Guarantor by one of its Officers.


 


Each Guarantor hereby agrees
that its Note Guarantee set forth in Section 12.01 hereof 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.


 


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.


 


In the event that the
Company or any of its Restricted Subsidiaries creates or acquires any Domestic
Restricted Subsidiary after the date of this Indenture, if required by Section 5.18
hereof, the Company and the Guarantors will cause such Domestic Restricted
Subsidiary to comply with the provisions of Section 5.18 hereof and this Article 12,
to the extent applicable.


 


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 Restricted
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 Section 5.10
and Article 6 hereof.  Upon delivery
by the Company to the Trustee of an Officer’s 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, including Section 5.10
and Article 6 hereof, the Trustee shall execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations
under its Note Guarantee.


 


Upon designation of any
Guarantor as an Unrestricted Subsidiary in accordance with the terms of this
Indenture, such Guarantor will be release and relieved of any 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 and Aggregate Accreted Principal Amount of and interest on
the Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 12.


 


112
















 


ARTICLE
13.

SATISFACTION AND DISCHARGE


 


Section 13.01.                  Satisfaction
and Discharge.


 


This Indenture will be
discharged and will cease to be of further effect (except as to surviving
rights or registration or exchange of the Notes, as expressly provided for in
this Indenture) 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 have become due and
payable by reason of the delivery of a notice of redemption or otherwise or
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 therof, 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 cancellation for principal and Aggregate Accreted Principal Amount,
interest and premium to the date of maturity or redemption;


 


(2)                                  no Default or Event of
Default has occurred and is 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 the
deposit will not result in a breach or violation of, or constitute a default
under, any material agreement or 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 or the redemption
date, as the case may be.


 


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


 


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Nothing in this Section 13.01
will be deemed to discharge those provisions of Section 8.07 hereof, that,
by their terms, survive the satisfaction and discharge of this Indenture.


 


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 hereof
shall survive.  Further, the Collateral
will be released from the Lien securing the Notes, as provided under Section 11.04
hereof, upon a satisfaction and discharge in accordance with the provisions
described in this Section 13.01.


 


Section 13.02.                  Application
of Trust Money.


 


Subject to the provisions of
Section 9.06 hereof, all money deposited with the Trustee pursuant to Section 13.01
hereof 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 Aggregate Accreted Principal Amount (and premium) 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
hereof 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 hereof; provided
that if the Company has made any payment of principal and Aggregate Accreted
Principal Amount of, premium 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.


 


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


 


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:


 


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If to the Company and/or any
Guarantor:


 


FiberTower Corporation


185 Berry Street, Suite 4800


San Francisco, CA 94107


Fax: 415-659-0007


Attention: Chief Financial
Officer


 


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


 


Andrews Kurth LLP


600 Travis Street, Suite 4200


Houston, TX 77002


Fax: 713-238-7111


Attention:  W. Mark Young, Esq.


 


If to the Trustee and/or
Collateral Agent:


 


Wells Fargo Bank, National
Association


Corporate Trust Services


1445 Ross Avenue, 2nd Floor


Dallas, TX 75202-2812


Fax:  214-777-4086


Attention:  Patrick T. Giordano


 


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 (5) 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.


 


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.


 


115

















 


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 Officer’s
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:


 


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


 


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


 


(3)                                  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


 


(4)                                  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



 


116

















 


or such Guarantor under the
Notes, the Note Guarantees, this Indenture or the Collateral Agreements 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.  The waiver may not be effective
to waive liabilities under the federal securities laws.


 


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 Collateral Agreements and the Notes shall
bind its successors.  All agreements of
the Trustee in this Indenture and the Collateral Agreements shall bind its
successors.  All agreements of each
Guarantor in this Indenture and the Collateral Agreements 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.


 


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.                  Benefit
of Indenture.


 


Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto, any Paying Agent, any Registrar and their successors and
assigns hereunder, and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.


 


Section 14.14.                  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.


 


117

















 


SIGNATURES


 


Dated as of December 7, 2009


 


	
   

  	
  FiberTower Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  FiberTower Network Services
  Corp.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  FiberTower Solutions
  Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  ART Licensing Corp.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  ART Leasing, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  Teligent Services
  Acquisition, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  



 


Indenture


 

















 


	
   

  	
  Wells Fargo Bank, National
  Association,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick T. Giordano

  
	
   

  	
   

  	
  Name:

  	
  Patrick T. Giordano

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


Indenture


 
















 


Exhibit A


 


[Face of Note]


 


THIS
DEBT INSTRUMENT HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT WITHIN THE MEANING
OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND THE
TREASURY REGULATIONS THEREUNDER. CONTACT THE CHIEF FINANCIAL OFFICER OF THE
ISSUER AT 415-659-3500 FOR THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY OF THIS DEBT INSTRUMENT.


 


CUSIP                 


 


9.00%
Mandatorily Redeemable Convertible Senior Secured Notes due 2012


 


	
  No.           

  	
  $              

  
	
   

  	
  (principal
  amount)

  



 


FiberTower
Corporation


 


promises
to pay to


or
registered assigns, the Aggregate Accreted Principal Amount of this Note on November 15,
2012.


 


Interest
Payment Dates: May 15 and November 15


 


Record
Dates: May 1 and November 1


 


	
  Issue
  Date

  	
   

  	
   

  



 


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


 


	
  Dated:

  	
   

  	
   

  



 


FiberTower
Corporation


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


This
is one of the Notes referred to in the within-mentioned Indenture:


 


Wells
Fargo Bank, National Association,


as
Trustee


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


A-1

















 


[Back of Note]


9.00%
Mandatorily Redeemable Convertible Senior Secured Notes due 2012


 


[Insert the Global Note Legend, if applicable, pursuant to the
provisions of the Indenture]


 


[Insert the Private Placement Legend, if applicable, pursuant to the
provisions of the Indenture]


 


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


 


1.                                       INTEREST. 
FiberTower Corporation, a Delaware corporation (the “Company”), promises to pay interest on the principal amount
of this Note at 9.00% per annum from
                            
until maturity.


 


The Company will pay interest semi-annually
in arrears on May 15 and November 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 November 15, 2009; 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 May 15,
2010; and provided, further, that if no Default has occurred or is continuing,
then on either or both of May 15, 2010 and November 15, 2010, the
Company may elect to make payments of interest on this Note in Additional Notes
in a principal amount equal to the amount of interest payable on such Interest
Payment Date; provided, further, that if the Company elects to make any
interest payment in Additional Notes, (1) the interest rate applicable to
this Note for the period to which such interest payment relates shall be 2.0%
higher than the interest rate otherwise payable hereon on such Interest Payment
Date, (2) the Company shall deliver to the Trustee and to the Holders, at
least twenty (20) days prior to the record date for such Interest Payment Date,
a written notice setting forth the extent to which such interest payment will
be made in the form of Additional Notes, and (3) the Company shall deliver
to the Trustee, no later than one Business Day prior to such Interest Payment
Date, an order to authenticate and deliver such Additional Notes. Thereafter
interest on this Note will only be payable in cash. Any Additional Note will be
identical to this Note, except that interest on an Additional Note will begin
to accrue from the date it is issued.


 


The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Code) on overdue
principal or Aggregate Accreted Principal Amount, if any, at the rate equal to
1.0% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; the Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Code) on overdue installments
of interest (without regard to any applicable grace period) 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 at the
close of business on the May 1 or November 1, as the case may be,
preceding the applicable 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 or Aggregate Accreted
Principal Amount, if any, of, premium and interest on, the Notes at the office
or agency of the Paying Agent maintained for such purpose by the Company, 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 or Aggregate Accreted Principal Amount of,
and interest and 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, Wells Fargo Bank,
National Association, 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 the Holders. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to the Indenture. If the 


 


A-2

















 


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.


 


4.                                       INDENTURE AND COLLATERAL AGREEMENTS.  The Company issued the Notes under an Indenture,
dated as of December 7, 2009 (the “Indenture”),
among the Company, the Guarantors party thereto 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
$[              ]
million in aggregate principal amount. The Notes are secured as provided in the
Collateral Agreements referred to in the Indenture.


 


5.                                       OPTIONAL REDEMPTION.  The Notes are not redeemable at the Company’s
option prior to November 15, 2010. The Company may redeem the Notes, at
its option, in whole or in part at any time on or after November 15, 2010,
upon not less than thirty (30) nor more than sixty (60) days’ notice, at 100%
of the Aggregate Accreted Principal Amount, together with accrued and unpaid
interest thereon, up to the redemption date; provided that for twenty (20) of
the preceding thirty (30) consecutive Trading Days, the Common Stock has had (1) a
Closing Sale Price at least equal to 1.50 times the then effective Conversion
Price and (2) a daily trading volume for each such Trading Day, when
multiplied by the Closing Sale Price for such Trading Day, which equals at
least $8.0 million. For so long as at least $215.0 aggregate principal amount
of the Notes remains outstanding, the Company may not redeem more than 50% of
the then outstanding principal amount of Notes in any ninety (90)-day period.


 


6.                                       REDEMPTION AT MATURITY.  Unless previously redeemed or converted, the
Company will redeem the Notes at 125.411% of their principal amount on November 15,
2012.


 


7.                                       MANDATORY REDEMPTION.  The Company will be required to redeem the
Notes upon the satisfaction or, with respect to certain conditions, the waiver
by the Holders of a majority of the outstanding principal amount of the Notes,
of conditions specified in the Indenture. 
Upon the satisfaction or permitted waiver of the conditions specified in
the Indenture, the Company will redeem the Notes at a redemption price per
$1,000 principal amount of Notes equal to: (a) $47.65 in cash, (b) 1,146.16
shares of Common Stock (subject to adjustment for stock splits, reverse stock
splits, stock dividends and similar events as specified in the Indenture), and (3) $425.46
in principal amount of New Notes.  No
additional amounts will be paid in such Mandatory Redemption for any accrued
and unpaid interest on the Notes.  If the
Mandatory Redemption has not occurred before the close of business on May 1,
2010, no such Mandatory Redemption will occur.


 


The Company shall give notice of the
Mandatory Redemption not later than the second Business Day following satisfaction
or waiver of the conditions to the Mandatory Redemption to each Holder of the
Notes.  The notice of the Mandatory
Redemption shall state: (1) the Mandatory Redemption Date, which shall be
not less than 5 days after the date of such notice or more than 10 days after
the date of such notice; (2) the Mandatory Redemption Price; (3) that
on the Mandatory Redemption Date the Mandatory Redemption Price will become due
and payable upon each Note, and (4) the place or places where the Notes
are to be surrendered for payment of the Mandatory Redemption Price.


 


The Company is required grant registration
rights with respect to resales of securities issued upon the Mandatory
Redemption of the Notes by persons who may be deemed to be “affiliates” of the
Company within the meaning of Rule 144 under the Securities Act, as
specified in the Indenture.


 


On or prior to 10:00 a.m. (New York City
time) on the Mandatory Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (which may be the Company) an amount of money,
shares of Common Stock and New Notes sufficient to pay the Mandatory Redemption
Price of all of the outstanding Notes. 
The Notes shall become due and payable on the Mandatory Redemption Date
at the Mandatory Redemption Price, and from and after such date (unless the
Company shall default in the payment of the Mandatory Redemption Price) such
Notes shall cease to bear interest. Upon surrender of any such Note for
redemption in accordance with said notice, such Note shall be paid by the
Company at the Mandatory Redemption Price.


 


A-3

















 


8.                                       REPURCHASE AT OPTION OF HOLDER UPON A
DESIGNATED EVENT.  If there shall occur a
Designated Event at any time prior to the maturity of the Notes, then each
Holder shall have the right, at such Holder’s option, to require the Company to
repurchase all of such Holder’s Notes, or any portion thereof that is a
multiple of $1,000 principal amount, for cash on a date designated by the
Company (the “Designated Event Repurchase Date”)
that is not less than twenty (20) nor more than thirty (30) days after the date
of the Designated Event Notice for such Designated Event at a repurchase price
equal to 101% of the Aggregate Accreted Principal Amount of the Notes to be
repurchased, plus accrued and unpaid interest up to, but excluding, the
Designated Event Repurchase Date. Notwithstanding the foregoing, if a
Designated Event Repurchase Date falls after an interest payment record date
but on or prior to the corresponding Interest Payment Date, the Company will
pay the full amount of accrued and unpaid interest on such Interest Payment
Date to the Holder of record at the close of business on the corresponding
record date. Notwithstanding the foregoing, no Notes may be surrendered for
repurchase pursuant to Section 3.08 of the Indenture in connection with a
merger, consolidation or other transaction effected solely for the purpose of
changing the Company’s jurisdiction of incorporation to any other state within
the United States.


 


If the Company or any Restricted Subsidiary
of the Company consummates any Asset Sale, within five (5) days of each
date when the aggregate amount of Excess Proceeds exceeds $5.0 million, the
Company will make an Asset Sale Offer pursuant to Section 5.10 of the
Indenture to all Holders and all holders of other senior secured Indebtedness
that is pari passu in right of payment and as to security interests with the
Notes with respect to the assets that are the subject of such Asset Sale
containing provisions similar to those set forth in the Indenture with respect
to offers to purchase or redeem with the proceeds of sales of assets to
purchase the maximum amount of Notes and such other pari passu Indebtedness
that may be purchased out of the Excess Proceeds in accordance with the
procedures set forth in Section 3.09 of the Indenture. The offer price for
the Notes in any Asset Sale Offer will be equal to 100% of the Aggregate
Accreted Principal Amount of the Notes, plus accrued and unpaid interest to the
date of purchase. If any Excess Proceeds remain after consummation of an Asset
Sale Offer, the Company may use those Excess Proceeds for any purpose not
otherwise prohibited by the Indenture. If the Aggregate Accreted Principal
Amount of Notes and the amount of other pari passu Indebtedness tendered into
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes and such other pari passu Indebtedness to be purchased on a
pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds will be reset at zero.


 


9.                                       CONVERSION.  Subject to and upon compliance with the
provisions of Article 4 of the Indenture, at the option of the Holder
thereof, any portion of the principal amount of this Note that is an integral
multiple of $1,000 may be converted into fully paid and non-assessable shares
of Common Stock at the Conversion Rate, determined as provided in the
Indenture, in effect at the time of conversion. The Holder may surrender Notes
for conversion at the applicable Conversion Rate at any time after the Exchange
Offer Completion Date until the close of business on the Business Day
immediately preceding the final maturity date of the Notes.


 


Upon surrendering any Note for conversion,
the Holder of such Note shall receive, in respect of each $1,000 principal
amount of Notes: shares of Common Stock at an initial conversion rate of
160.772 shares per $1,000 principal amount of Notes (the “Conversion
Rate”), which is based upon an initial Conversion Price of
approximately $6.22 per share. The Conversion Rate (and Conversion Price) are
subject to adjustment as described in the Indenture.


 


If a Holder receives shares of Common Stock
upon conversion of a Note, such Holder will also receive the associated rights
under any stockholder rights plan that the Company may adopt, whether or not
the rights have separated from the Common Stock at the time of conversion
unless, prior to conversion, the rights have expired, terminated or been
exchanged.


 


To convert a Note, a Holder must comply with
the procedures for conversion set out in Section 4.03 of the Indenture. A
Holder may convert a portion of a Note equal to $1,000 or any integral multiple
thereof.


 


In order to exercise the conversion right: (1) the
Holder of any Definitive Note to be converted must (i) complete and
manually sign a notice of conversion substantially in the form set forth on the
reverse of this Note (the “Conversion Notice”),
(ii) deliver the Conversion Notice and the Definitive Note (and the Certificate
of Conversion & Restricted Transfer, if applicable) to the Conversion
Agent and the Company, and (iii) if required, furnish 


 


A-4

















 


appropriate endorsements and
transfer documents; or (2) the holder of beneficial interests in any
Global Note to be converted must comply with the Applicable Procedures to cause
the beneficial interests in such Global Note to be delivered to the Conversion
Agent. In the case of either (1) or (2), the Holder of a Definitive Note
or holder of beneficial interests in a Global Note will, if required, pay all
transfer or similar taxes and, if required pursuant to Section 4.03(b) of
the Indenture, pay funds equal to the interest payable on the next Interest
Payment Date.


 


The date on which a Holder of a Definitive
Note or holder of a beneficial interest in a Global Note completes the
requirements of Section 4.03(a) of the Indenture shall be deemed to
be the date of conversion (the “Conversion Date”)
for purposes of Article 4 of the Indenture. On and after the Conversion
Date, the conversion by such Holder or holder, as set forth in the Conversion
Notice, shall become irrevocable.


 


In case of a transaction described in clause (3) of
the definition of Fundamental Change in the Indenture, solely upon receipt by
the Conversion Agent of any Holder’s Conversion Notice on or subsequent to the
effective date of such Fundamental Change and prior to the forty-fifth (45th)
day following such effective date (or, if earlier and to the extent applicable,
the close of business on the second Business Day immediately preceding the
Designated Event Repurchase Date (as specified in the Designated Event
Notice)), the Company shall pay such Holder a make-whole premium within twenty
(20) days after the consummation of such Designated Event. This make-whole
premium will be equal to the present value on the effective date of such
Fundamental Change of all required interest payments on the Notes as if paid in
cash from the effective date of such Fundamental Change through November 15,
2010 (including any accrued but unpaid interest), computed using a discount
rate equal to the Reinvestment Yield (the “Designated Event
Make-Whole Amount”). Holders will only be eligible to receive the
Designated Event Make-Whole Amount if the Closing Sale Price of the Common
Stock immediately following the announcement of such Fundamental Change is
equal to or greater than $7.04 and less than $21.12 (as such prices may be
adjusted for stock splits, stock dividends, and similar events pursuant to the
terms of the Indenture). Such payment shall be payable, at the Company’s
option, in (1) cash, (2) shares of Common Stock at a 5.0% discount to
the Current Market Price; provided that the issuance of shares of Common Stock
in payment of this make-whole premium will be subject to the Nasdaq Stock
Market rules, which may require shareholder approval in certain circumstances, (3) the
consideration received triggering such Designated Event, or (4) a
combination of cash, shares and such consideration.


 


In the case of any consolidation or merger of
the Company with or into any other Person, any merger of another Person with or
into the Company (other than a merger that does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock) or any conveyance, sale or transfer of all or substantially all
of the assets of the Company, the Company or the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as the
case may be, shall notify the Trustee and the Holders at least ten (10) days
prior to the record date for such transaction, or if there is no record date,
at least ten (10) Trading Days prior to the anticipated effective date for
such transaction. The Company, or such successor, purchasing or transferee
corporation, as the case may be, as a condition precedent to such
consolidation, merger, conveyance, sale or transfer, shall execute and deliver
to the Trustee a supplemental indenture providing that the Holder of each Note
then outstanding shall have the right thereafter to convert Notes only into the
kind and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale or transfer by a holder of the number
of shares of Common Stock into which such Notes might have been converted
immediately prior to such consolidation, merger, conveyance, sale or transfer.
Such supplemental indenture shall provide for adjustments of the Conversion
Rate and Conversion Price which shall be as nearly equivalent as may be
practicable to the adjustments of the Conversion Rate and Conversion Price
provided for in Article 4 of the Indenture. If, in the case of any such
consolidation, merger, conveyance, sale or transfer, the securities, cash and
other property receivable thereupon by a holder of 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, conveyance or sale, 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 as the Company’s Board of
Directors shall reasonably consider necessary by reason of the foregoing.


 


Notwithstanding any other provision of this
Note or the Indenture, in no event will the Company issue more than an
aggregate of 30,106,403 shares of Common Stock upon conversion of the Notes and
in payment of any make-whole premium obligations unless the Company has
previously received stockholder approval for issuances of shares of Common
Stock in excess of that number of shares in accordance with, and to the extent
required by, the 


 


A-5

















 


Nasdaq Stock Market rules,
and any Holder who would otherwise be entitled to receive shares of Common
Stock upon such conversion of the Notes in excess of such number shall instead
be entitled to receive cash in an amount equal to the Current Market Price in
lieu of each share that such Holder would otherwise be entitled to receive in
excess of such number. If the Company obtains stockholder approval for
issuances of shares of Common Stock in excess of such number, to the extent
required by the Nasdaq Stock Market rules, the Company will have the option to
either pay Holders cash or issue shares of Common Stock upon such conversions
and payments of make-whole premiums.


 


10.                                 NOTICE OF REDEMPTION.  At least thirty (30) days but not more than
sixty (60) days before a redemption date for an optional redemption, the
Company will mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than sixty (60) days
prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction and discharge of the Indenture
pursuant to Articles 9 or 13 of the Indenture. 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 redemption date, interest ceases to accrue on Notes or portions thereof
called for redemption.


 


11.                                 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. Neither the Company nor the Registrar will be
required to (1) issue, register the transfer of or exchange any Notes
during a period beginning at the opening of business fifteen (15) days before
the day of any selection of Notes for redemption under Section 3.02 of the
Indenture and ending at the close of business on the day of selection, (2) register
the transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part, or (3) register
the transfer of or exchange a Note between a record date and the next
succeeding interest payment date.


 


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


 


13.                                 AMENDMENT, SUPPLEMENT AND WAIVER.  Subject to certain exceptions in Section 10.02
of the Indenture, the Company, the Guarantors and the Trustee may amend or
supplement the Indenture, any Collateral Agreement, the Notes and the Note
Guarantees with the consent of the Holders of at least a majority in aggregate
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 Note
Guarantees), and, subject to Sections 7.04 and 7.07 of the Indenture, any
existing Default or Event of Default (other than a Default or Event of Default
in the payment of the principal and Aggregate Accreted Principal Amount of,
premium or interest on the Notes, except a Payment Default resulting from an
acceleration that has been rescinded) or compliance with any provision of the
Indenture, any Collateral Agreement or the Notes and Note Guarantees may be
waived with the consent of the Holders of a majority in aggregate 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).


 


Without the consent of each Holder affected,
an amendment, supplement or waiver under Section 10.02 of the Indenture
may not (with respect to any Notes held by a non-consenting Holder): (1) reduce
the aggregate principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver; (2) reduce the principal or Aggregate
Accreted Principal Amount 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; (3) reduce
the rate of or change the time for payment of interest, including default
interest, on any Note; (4) waive a Default or Event of Default in the
payment of principal or Aggregate Accreted Principal Amount of, or interest on,
or premium, if any, 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); (5) make any
Note payable in money other than that stated in the Notes; (6) make any
change in the provisions of the Indenture relating to waivers of past Defaults
or the rights of Holders to receive payments of 


 


A-6

















 


principal or Aggregate
Accreted Principal Amount of, or interest on, or premium, if any, on, the
Notes; (7) release any Collateral from the Liens of the pledge and
security agreements, except as contemplated by the pledge and security
agreements; (8) waive a redemption payment or mandatory redemption with
respect to any Notes; (9) adversely affect the conversion rights of the
Holders set forth in Article 4 of the Indenture; (10) release any
Guarantor from any of its obligations under its Note Guarantee or the
Indenture, except in accordance with the terms of the Indenture; or (11) make
any change in Section 7.04 or 7.07 of the Indenture or in the provisions
relating to amendment, supplement and waiver in the Indenture.


 


Without the consent of any Holder, the
Company, the Guarantors and the Trustee may amend or supplement the Indenture,
any Collateral Agreement, the Notes and the Note Guarantees: (1) to cure
any ambiguity, defect or inconsistency; (2) to provide for uncertificated
Notes in addition to or in place of certificated Notes; (3) to provide for
the assumption of the obligations of the Company or any Guarantor to Holders in
the case of a merger or consolidation or sale of all or substantially all of
the Company’s or any Guarantor’s assets in accordance with the provisions of
the Indenture; (4) to effect the release of a Guarantor from its Note
Guarantee and the termination of such Note Guarantee, all in accordance with
the provisions of the Indenture governing such release and termination; (5) to
add any Note Guarantee or to secure the Notes or any Note Guarantee; (6) to
make any change that would provide additional rights or benefits to the Holders
or that does not adversely affect the legal rights under the Indenture, the
Notes, the Note Guarantees or any Collateral Agreement of any Holder; (7) to
comply with requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act; (8) to
provide for the issuance of Additional Notes in accordance with the limitations
set forth in the Indenture; or (9) to provide for a successor trustee in
accordance with the provisions of the Indenture.


 


14.                                 DEFAULTS AND REMEDIES.  Each of the following is an event of default:
(1) default for thirty (30) days in the payment when due of interest on
the Notes; (2) default in the payment when due (at maturity or otherwise)
of the principal or Aggregate Accreted Principal Amount of, or premium, if any,
on, the Notes; (3) default in the Company’s obligation to deliver shares
of Common Stock, cash or other property upon conversion of the Notes as
required under the Indenture and such default continues for a period of five (5) days;
(4) failure by the Company or any of its Restricted Subsidiaries to comply
with the provisions of Sections 3.08, 5.07, 5.09, 5.10 or 6.01 of the Indenture;
(5) failure by the Company or any of its Restricted Subsidiaries for sixty
(60) 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 to comply with any of the other
agreements in the Indenture or any Collateral Agreement; provided, however,
that with respect to a failure by the Company to comply with Section 5.03
of the Indenture, such period shall be ninety (90) days, rather than sixty (60)
days; (6) default 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 Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries), whether such Indebtedness or Guarantee now
exists, or is created after the date of the Indenture, if that default (i) is
caused by 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 any 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; (7) failure
by the Company or any of its Restricted Subsidiaries to pay final judgments
entered by a court or courts of competent jurisdiction aggregating in excess of
$10.0 million, which judgments are not paid, discharged or stayed for a period
of sixty (60) days; (8) (i) any revocation, cancellation or
relinquishment, which action is not subject to further appeal, of the Company’s
or its Restricted Subsidiaries’ (A) 24 GHz FCC Licenses covering a
population equal to or greater than 5.0% of the population covered by all of
the Company’s and its Restricted Subsidiaries’ 24 GHz FCC Licenses or (B) 39
GHz licenses covering a population equal to or greater than 33 1/3% of the
population covered by all of the Company’s and its Restricted Subsidiaries’ 39
GHz licenses, with the population in each case determined by the most recent
official census conducted by the U.S. government and (ii) such FCC License
revocation, cancellation or relinquishment, individually or in the aggregate,
has a material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of the Company and its Restricted
Subsidiaries taken as a whole; (9) the Company or any of its Restricted
Subsidiaries, pursuant to or within the meaning of the Bankruptcy Code (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
the Bankruptcy Code 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; (10) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Code that (i) is
for relief against 


 


A-7

















 


the Company or any of its Restricted Subsidiaries in
an involuntary case, (ii) appoints a custodian, receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Code of the
Company or any of its Restricted Subsidiaries, or for all or substantially all
of the property of the Company or any of its Restricted Subsidiaries, or (iii) orders
the liquidation of the Company or any of its Restricted Subsidiaries; (11) any
Collateral Agreement at any time for any reason shall cease to be in full force
and effect in all material respects, or any Collateral Agreement ceases to give
the Collateral Agent the Liens (other than Liens securing Collateral,
individually or in the aggregate, having a Fair Market Value of less than
$500,000), rights, powers and privileges purported to be created thereby, superior
to and prior to the rights of all third Persons other than the holders of
Permitted Liens and subject to no other Liens except as expressly permitted by
any Collateral Agreement or the Indenture; (12) the Company or any of its
Restricted Subsidiaries contest in any manner the effectiveness, validity,
binding nature or enforceability of any Collateral Agreement; or (13) the Note
Guarantee of any Guarantor ceases to be in full force and effect or is declared
to be null and void and unenforceable or is found to be invalid or any
Guarantor denies its liability under its Note Guarantee (other than by reason
of release of a Guarantor in accordance with the terms of the Indenture).


 


In the case of an Event of Default specified
in clause (9) or (10) above, with respect to the Company or any
Restricted Subsidiary of the Company, all outstanding Notes will become due and
payable immediately without further action or notice. If any other Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. If the Notes become due and payable at
any time prior to maturity, the amount that shall become due and payable shall
be the Aggregate Accreted Principal Amount of such Notes.


 


Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. 
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 the Indenture or the Collateral Agreements that the Trustee
determines may be unduly prejudicial to the rights of other Holders or that may
involve the Trustee in personal liability or expense.


 


Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may, on
behalf of the Holders of all of the Notes, rescind an acceleration or waive any
existing Default or Event of Default and its consequences under the Indenture
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default (except nonpayment of principal or Aggregate
Accreted Principal Amount, interest or premium that has become due solely
because of the acceleration) have been cured or waived. The Trustee may
withhold from the Holders of the Notes then outstanding notice of any
continuing Default or Event of Default under the Indenture if it determines
that withholding notice is in their interest, except a Default or Event of
Default under the Indenture relating to the payment of principal or Aggregate
Accreted Principal Amount, interest or premium, if any. Subject to the
provisions of the Indenture relating to the duties of the Trustee, including,
without limitation, Section 8.01 of the Indenture, in case an Event of
Default occurs and is continuing, the Trustee will be under no obligation to
exercise any of the rights or powers under the Indenture at the request or
direction of any Holders unless such Holders have offered to the Trustee
reasonable indemnity or security against any loss, liability or expense.


 


If an Event of Default occurs on or prior to November 15,
2010 by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company or the Guarantors with the intention of avoiding the
prohibition on redemption of the Notes prior to November 15, 2010 or the
requirement to pay the Designated Event Make-Whole Amount, then, upon
acceleration of the Notes, any additional premium shall also become due and
immediately payable, to the extent permitted by law, in an amount equal to the
Designated Event Make-Whole Amount.


 


The Company and each Guarantor (to the extent
that such Guarantor is so required under the Trust Indenture Act) shall deliver
to the Trustee, within ninety (90) days after the end of each fiscal year, an
Officer’s Certificate, signed by 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 Officer with a view to
determining whether the Company and each obligor under the Notes and the
Indenture has kept, observed, performed and fulfilled its obligations under the
Note Documents, and further stating, as to the Officer signing such
certificate, that to the best of his or her knowledge the 


 


A-8

















 


Company and each such
obligor has kept, observed, performed and fulfilled each and every covenant
contained in the Note Documents and is not in default in the performance or
observance of any of the terms, provisions and conditions of the Note 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, Aggregate Accreted Principal Amount, if any, 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.


 


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


 


15.                                 UNCLAIMED MONEY.  Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal and Aggregate Accreted Principal Amount of, and interest or premium
on, any Note and remaining unclaimed for two years after such principal and
Aggregate Accreted Principal Amount, and interest or premium 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 thirty (30) days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.


 


16.                                 TRUSTEE DEALINGS WITH COMPANY.  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 ninety (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 of the Indenture.


 


17.                                 NO RECOURSE AGAINST OTHERS.  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, the Indenture or the Collateral
Agreements 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. The waiver may not be effective to
waive liabilities under the federal securities laws.


 


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


 


19.                                 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).


 


20.                                 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.


 


21.                                 GOVERNING LAW.  THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE
GUARANTEES 


 


A-9

















 


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.


 


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


 


FiberTower Corporation


185 Berry Street, Suite 4800


San Francisco, CA 94107


Attention: Chief Financial Officer


 


A-10
















 


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).


 


A-11

















 


CONVERSION
NOTICE


 


To convert this Note into 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.


 


A-12

















 


OPTION
OF HOLDER TO ELECT REPURCHASE


 


If you want to elect to have this Note
repurchased by the Company pursuant to Section 3.08 or Section 3.09
of the Indenture, check the appropriate box below:


 


o  Section 3.08                    o  Section 3.09


 


If you want to elect to have only part of the
Note repurchased by the Company pursuant to Section 3.08 or Section 3.09
of the Indenture, state the amount you elect to have repurchased:


 


$               


 


	
  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).


 


A-13

















 


SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


The following exchanges of a part of this
Global Note for an interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global Note or Definitive Note for an interest
in this Global Note, have been made:


 


	
  Date
  of Exchange

  	
   

  	
  Amount of decrease

  in Principal Amount

  of this Global Note

  	
   

  	
  Amount of increase

  in Principal Amount

  of this Global Note

  	
   

  	
  Principal Amount of

  this Global Note

  following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized officer of

  Trustee or Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-14

















 


Exhibit B


 


FORM OF
CERTIFICATE OF TRANSFER


 


FiberTower
Corporation


185
Berry Street, Suite 4800


San
Francisco, CA 94107


 


Wells
Fargo Bank, National Association


Corporate
Trust Services


1445
Ross Avenue, 2nd Floor


Dallas,
TX 75202-2812


 


Re:          9.00% Mandatorily Redeemable
Convertible Senior Secured Notes due 2012


 


Reference is hereby made to the Indenture,
dated as of December 7, 2009 (the “Indenture”),
among FiberTower Corporation, as issuer (the “Company”),
the Guarantors party thereto, and Wells Fargo Bank, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                 ,
(the “Transferor”) owns and proposes to
transfer the Notes[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of
$                      
in such Note[s] or interests (the “Transfer”), to
                                            
(the “Transferee”), as further specified in
Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:


 


[CHECK ALL THAT APPLY]


 


1.             o            Check if Transferee will take delivery of a
beneficial interest in the 144A Global Note or a Restricted Definitive Note
pursuant to Rule 144A. 
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the Securities Act of 1933, as amended (the “Securities
Act”), and, accordingly, the Transferor hereby further certifies
that the beneficial interest or Definitive Note is being transferred to a
Person that the Transferor reasonably believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each such account is a “qualified institutional buyer” within
the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A,
and such Transfer is in compliance with any applicable blue sky securities laws
of any state of the United States. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note
and/or the Restricted Definitive Note and in the Indenture and the Securities
Act.


 


2.             o            Check if Transferee will take delivery of a
beneficial interest in the Regulation S Global Note or a Restricted Definitive
Note pursuant to Regulation S. 
The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a
Person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act, (iii) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Distribution
Compliance Period under Regulation S, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to 


 


B-1

















 


the restrictions on Transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.


 


3.             o            Check and complete if Transferee will take
delivery of a beneficial interest in the IAI Global Note or a Restricted
Definitive Note pursuant to any provision of the Securities Act other than Rule 144A
or Regulation S.  The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):


 


(a)           o            such
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;


 


or


 


(b)           o            such
Transfer is being effected to the Company or a Subsidiary thereof;


 


or


 


(c)           o            such
Transfer is being effected to an Institutional Accredited Investor and pursuant
to an exemption from the registration requirements of the Securities Act other
than Rule 144A, Rule 144, Rule 903 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and
the Transfer complies with the transfer restrictions applicable to beneficial
interests in a Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit F to the
Indenture and (2) if such Transfer is in respect of a principal amount of
Notes at the time of transfer of less than $250,000, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the Transferor
has attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note
and/or the Restricted Definitive Notes and in the Indenture and the Securities
Act.


 


4.             o            Check if Transferee will take delivery of a
beneficial interest in an Unrestricted Global Note or of an Unrestricted
Definitive Note.


 


(a)           o            Check if Transfer is pursuant to Rule 144.  (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and
in compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted Definitive
Notes and in the Indenture.


 


(b)           o            Check if Transfer is Pursuant to Regulation S.  (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


(c)           o            Check if Transfer is Pursuant to Other Exemption.  (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration
requirements of the Securities Act other than Rule 


 


B-2

















 


144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.


 


This certificate and the statements contained
herein are made for your benefit and the benefit of the Company.


 


	
   

  	
   

  
	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


B-3
















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


	
   

  	
  1.

  	
  The Transferor owns and
  proposes to transfer the following:

  



 


[CHECK ONE OF (a) OR (b)]


 


	
  (a)

  	
  o

  	
  a
  beneficial interest in the:

  
	
   

  	
   

  	
   

  
	
  (i)

  	
  o

  	
  144A
  Global Note (CUSIP
                    ),
  or

  
	
  (ii)

  	
  o

  	
  Regulation
  S Global Note (CUSIP
                    ),
  or

  
	
  (iii)

  	
  o

  	
  IAI
  Global Note (CUSIP
                    );
  or

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  a
  Restricted Definitive Note.

  
	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  After
  the Transfer the Transferee will hold:

  



 


[CHECK ONE]


 


	
  (a)

  	
  a
  beneficial interest in the:

  
	
   

  	
   

  	
   

  
	
  (i)

  	
  o

  	
  144A
  Global Note (CUSIP
                    ),
  or

  
	
  (ii)

  	
  o

  	
  Regulation
  S Global Note (CUSIP
                    ),
  or

  
	
  (iii)

  	
  o

  	
  IAI
  Global Note (CUSIP
                    );
  or

  
	
  (iv)

  	
  o

  	
  Unrestricted
  Global Note (CUSIP
                    );
  or

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  o

  	
  a
  Restricted Definitive Note; or

  
	
   

  	
   

  	
   

  
	
  (c)

  	
  o

  	
  an
  Unrestricted Definitive Note, in accordance with the terms of the Indenture.

  



 


B-4

















 


Exhibit C


 


FORM OF
CERTIFICATE OF EXCHANGE


 


FiberTower
Corporation


185
Berry Street, Suite 4800


San
Francisco, CA 94107


 


Wells
Fargo Bank, National Association


Corporate
Trust Services


1445
Ross Avenue, 2nd Floor


Dallas,
TX 75202-2812


 


Re:                               9.00% Mandatorily Redeemable
Convertible Senior Secured Notes due 2012


 


(CUSIP
                        )


 


Reference is hereby made to the Indenture,
dated as of December 7, 2009 (the “Indenture”),
among FiberTower Corporation, as issuer (the “Company”),
the Guarantors party thereto, and Wells Fargo Bank, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                               ,
(the “Owner”) owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $                        
in such Note[s] or interests (the “Exchange”). In
connection with the Exchange, the Owner hereby certifies that:


 


1.                                       Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note


 


(a)                                  o                                    Check
if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a beneficial
interest in an Unrestricted Global Note in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the Securities Act of 1933, as amended (the
“Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.


 


(b)                                 o                                    Check
if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is
being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Definitive Note
is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.


 


(c)                                  o                                    Check
if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note.  In
connection with the Owner’s Exchange of a Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in 


 


C-1

















 


order to maintain compliance
with the Securities Act and (iv) the beneficial interest is being acquired
in compliance with any applicable blue sky securities laws of any state of the
United States.


 


(d)                                 o                                    Check
if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


2.                                       Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes


 


(a)                                  o                                    Check
if Exchange is from beneficial interest in a Restricted Global Note to
Restricted Definitive Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.


 


(b)                                 o                                    Check
if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note.  In
connection with the Exchange of the Owner’s Restricted Definitive Note for a
beneficial interest in the [CHECK ONE] o 144A Global Note, o Regulation S Global Note, o IAI Global Note with an equal principal amount, the
Owner hereby certifies (i) the beneficial interest is being acquired for
the Owner’s own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.


 


This certificate and the statements contained
herein are made for your benefit and the benefit of the Company.


 


	
   

  	
   

  
	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


C-2

















 


Exhibit D


 


FORM OF
CERTIFICATE OF CONVERSION & RESTRICTED TRANSFER


 


FiberTower
Corporation


185
Berry Street, Suite 4800


San
Francisco, CA 94107


 


Wells
Fargo Bank, National Association


Corporate
Trust Services


1445
Ross Avenue, 2nd Floor


Dallas,
TX 75202-2812


 


Re:                               9.00% Mandatorily Redeemable
Convertible Senior Secured Notes due 2012


 


Reference is hereby made to the Indenture,
dated as of December 7, 2009 (the “Indenture”),
among FiberTower Corporation, as issuer (the “Company”),
the Guarantors party thereto, and Wells Fargo Bank, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                    ,
(the “Transferor”) owns, and proposes to
exercise its right of conversion pursuant to Article 4 of the Indenture
with respect to the Note[s] or interest in such Note[s] specified in Annex A
hereto, in the principal amount of
$                      
in such Note[s] or interests, and to request that the shares of Common Stock
issuable upon such conversion (the “Shares”) be
registered in the name of or issued to
                                                      
(the “Transferee”), as further specified in
Annex A hereto (such transaction, the “Conversion &
Transfer”). In connection with the Conversion & Transfer,
the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.                                       o                                    Check
if Transferee will take delivery of Shares pursuant to Rule 144A.  The Conversion & Transfer is being
effected pursuant to and in accordance with Rule 144A under the Securities
Act of 1933, as amended (the “Securities Act”),
and, accordingly, the Transferor hereby further certifies that the Shares to be
issued upon conversion are being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the Shares for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Conversion &
Transfer is in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Conversion &
Transfer in accordance with the terms of the Indenture, the Shares will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend set forth in the Indenture and the Securities Act.


 


2.                                       o                                    Check
and complete if Transferee will take delivery of the Shares pursuant to any
provision of the Securities Act other than Rule 144A.  The Conversion & Transfer is being
effected in compliance with the transfer restrictions set forth in Section 2.06
of the Indenture and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):


 


(a)                                  o                                    such Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act;


 


or


 


(b)                                 o                                    such Transfer
is being effected to the Company or a Subsidiary thereof.


 


3.                                       o                                    Check
if Transferee will take delivery of Unrestricted Shares.


 


D-1

















 


(a)                                  o                                    Check
if Conversion & Transfer is pursuant to Rule 144. (i) The
Conversion & Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Conversion & Transfer in accordance with
the terms of the Indenture, the Shares will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


(b)                                 o                                    Check
if Conversion & Transfer is Pursuant to Other Exemption. (i) The
Conversion & Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act
other than Rule 144 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Conversion & Transfer in accordance with the terms of the Indenture,
the Shares will not be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.


 


This certificate and the statements contained
herein are made for your benefit and the benefit of the Company.


 


	
   

  	
   

  
	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


D-2

















 


ANNEX A TO CERTIFICATE OF CONVERSION & RESTRICTED TRANSFER


 


	
   

  	
  1.

  	
  The
  Transferor owns and proposes to transfer the following:

  



 


[CHECK ONE OF (a) OR (b)]


 


	
  (a)

  	
  o

  	
  a
  beneficial interest in the:

  
	
   

  	
   

  	
   

  
	
  (i)

  	
  o

  	
  144A
  Global Note (CUSIP
                    ),
  or

  
	
  (ii)

  	
  o

  	
  Regulation
  S Global Note (CUSIP
                    ),
  or

  
	
  (iii)

  	
  o

  	
  IAI
  Global Note (CUSIP                   );
  or

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  o

  	
  a
  Restricted Definitive Note.

  
	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  After
  the Transfer the Transferee will hold:

  



 


[CHECK ONE]


 


	
  (a)

  	
  o

  	
  a
  beneficial interest in the:

  
	
   

  	
   

  	
   

  
	
  (i)

  	
  o

  	
  144A
  Global Note (CUSIP
                    ),
  or

  
	
  (ii)

  	
  o

  	
  Regulation
  S Global Note (CUSIP
                    ),
  or

  
	
  (iii)

  	
  o

  	
  IAI
  Global Note (CUSIP
                    ),
  or

  
	
  (iv)

  	
  o

  	
  Unrestricted
  Global Note (CUSIP
                    );
  or

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  o

  	
  a
  Restricted Definitive Note; or

  
	
   

  	
   

  	
   

  
	
  (c)

  	
  o

  	
  an
  Unrestricted Definitive Note.

  



 


in
accordance with the terms of the Indenture.


 


	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Social
  Security or other Identification Number, if any.

  	
   

  



 


D-3

















 


Exhibit E


 


FORM OF
NOTATION OF GUARANTEE


 


For value received, each Guarantor (which
term includes any successor Person under the Indenture) has, jointly and
severally, unconditionally guaranteed, to the extent set forth in the Indenture
and subject to the provisions in the Indenture, dated as of December 7,
2009 (the “Indenture”), among FiberTower
Corporation, (the “Company”), the
Guarantors party thereto, and Wells Fargo Bank, National Association, as
trustee (the “Trustee”), (a) the due and
punctual payment of the principal or Aggregate Accreted Principal Amount of,
premium and interest on, the Notes, whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue
principal or Aggregate Accreted Principal Amount of and interest on the Notes,
if any, if lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms of the Indenture and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the 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. The obligations of the Guarantors to the Holders and to the
Trustee pursuant to the Note Guarantees and the Indenture are expressly set
forth in Article 12 of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Note Guarantees.


 


Capitalized terms used but not defined herein
have the meanings given to them in the Indenture.


 


	
   

  	
  [Name
  Of Guarantor(s)]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


E-1

















 


Exhibit F


 


FORM OF
CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


FiberTower
Corporation


185
Berry Street, Suite 4800


San
Francisco, CA 94107


 


Wells
Fargo Bank, National Association


Corporate
Trust Services


1445
Ross Avenue, 2nd Floor


Dallas,
TX 75202-2812


 


Re:                               9.00% Mandatorily Redeemable
Convertible Senior Secured Notes due 2012


 


Reference is hereby made to the Indenture,
dated as of December 7, 2009 (the “Indenture”),
among FiberTower Corporation, as issuer (the “Company”),
the Guarantors party thereto, and Wells Fargo Bank, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


In connection with our proposed purchase of
$                        
aggregate principal amount of:


 


(a)                                  o                                    a beneficial
interest in a Global Note, or


 


(b)                                 o                                    a Definitive
Note,


 


we
confirm that:


 


1.                                       We understand
that any subsequent transfer of the Notes or any interest therein is subject to
certain restrictions and conditions set forth in the Indenture and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the
Notes or any interest therein except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the “Securities Act”).


 


2.                                       We understand
that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered
or sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell the Notes or any interest therein, we will do so
only (A) to the Company or any Subsidiary thereof, (B) in accordance
with Rule 144A under the Securities Act to a “qualified institutional
buyer” (as defined therein), (C) to an institutional “accredited investor”
(as defined below) that is purchasing for its own account or for the account of
such an institutional “accredited investor” for investment purposes and not
with a view to or for offer or sale in connection with any distribution in
violation of the Securities Act that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to the Trustee and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Notes, at the time of transfer
of less than $250,000, an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904
of Regulation S under the Securities Act, or (E) pursuant to the
provisions of Rule 144(k) under the Securities Act, and we further
agree to provide to any Person purchasing the Definitive Note or beneficial
interest in a Global Note from the Company in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice
advising such purchaser that resales thereof are restricted as stated herein.


 


3.                                       We understand
that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to the Trustee and the Company such certifications,
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.


 


F-1

















 


4.                                       We are an institutional
“accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act) and have such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.


 


5.                                       We are
acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional
“accredited investor”) as to each of which we exercise sole investment
discretion.


 


The Trustee and the Company are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.


 


	
   

  	
   

  
	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


F-2
















 


Exhibit G


 


FORM OF
INTERCREDITOR AGREEMENT


 
















 


Execution Copy


 


OMNIBUS INTERCREDITOR AGREEMENT


 


This OMNIBUS INTERCREDITOR
AGREEMENT, dated as of December 7, 2009 (as may be amended, modified,
supplemented, or restated from time to time, this “Omnibus  Agreement”),
is entered into by and among (a) WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, in its capacity as trustee pursuant to the
Existing Notes Indenture (as hereinafter defined) for the Existing Notes
Noteholders (as hereinafter defined) (in such capacity, together with its
successors and assigns in such capacity, the “Existing Notes Trustee”); (b) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Existing Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Existing Notes
Trustee and the Existing Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Existing Notes Collateral
Agent”); (c) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national
banking association, in its capacity as trustee pursuant to the Interim Notes
Indenture (as hereinafter defined) for the Interim Notes Noteholders (as
hereinafter defined) (in such capacity, together with its successors and
assigns in such capacity, the “Interim Notes Trustee”); (d) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Interim Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes Trustee
and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Collateral Agent”);
(e) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association
or such other entity designated to act as trustee pursuant to the New Notes
Indenture (as hereinafter defined) for the New Notes Noteholders (as
hereinafter defined) (in such capacity, together with its successors and
assigns in such capacity, the “New Notes Trustee”) which shall become a
party to this Omnibus Agreement as of the Transition Effective Date (as
hereinafter defined);  (f) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association or such other
entity designated to act as collateral agent under the New Notes Indenture for
the benefit of the New Notes Trustee and the New Notes Noteholders (in such
capacity, together with its successors and assigns in such capacity, the “New
Notes Collateral Agent”) which shall become a party to this Omnibus
Agreement as of the Transition Effective Date (as hereinafter defined); (g) each
additional Person from time to time  party hereto
acting as authorized representative for the Additional Secured Parties of the Series of
Secured Debt with respect to which it is acting in such capacity; and (h) FIBERTOWER
CORPORATION, a Delaware corporation (the “Company”), FIBERTOWER NETWORK
SERVICES CORP., a Delaware corporation, ART LEASING, INC., a Delaware
corporation, TELIGENT SERVICES ACQUISITION, INC., a Delaware corporation, ART
LICENSING CORP., a Delaware corporation, and FIBERTOWER SOLUTIONS CORPORATION,
a Delaware corporation.


 


W I T N E S S E T H:


 


WHEREAS, the Company, the
Guarantors named therein, and the Existing Notes Trustee have entered into the
Indenture, dated as of November 9, 2006, (as such Indenture may be
amended, modified, supplemented, extended, renewed, restated or refinanced, the
“Existing Notes Indenture”) governing the 9.00% Convertible Senior
Secured Notes due 2012 (such notes, the “Existing Notes”) issued by the
Company to the Existing Notes Noteholders;


 

















 


WHEREAS, on the date hereof
the Company, the Guarantors named therein (the “Guarantors”), and the
Interim Notes Trustee have entered into the Indenture, dated as of December 7,
2009, (as such Indenture may be amended, modified, supplemented, extended,
renewed, restated or refinanced, the “Interim Notes Indenture”)
governing the 9.00% Mandatorily Redeemable Convertible Senior Secured Notes due
2012 (such notes, including the Initial Notes and any Additional Notes (each as
defined in the Interim Notes Indenture), the “Interim Notes”) issued by
the Company to the Interim Notes Noteholders (as defined in the Interim ICA
defined below);


 


WHEREAS, after the date
hereof the Company and the Guarantors may, subject to the terms of the Secured
Indebtedness Documents (as defined in the Interim Notes Indenture), and upon
the mandatory redemption of the Interim Notes, enter into an Indenture (as such
Indenture may be amended, modified, supplemented, extended, renewed, restated
or refinanced, the “New Notes Indenture” and together with the Interim
Notes Indenture, the “Indentures”) governing certain 9.00% Senior
Secured Notes (such notes, including the Initial Notes and any Additional Notes
(each, as defined in the New Notes Indenture), the “New Notes”) issued
by the Company to the New Notes Noteholders (as defined in the New ICA defined
below);


 


WHEREAS, after the date
hereof, the Company and the Guarantors named in each Indenture, as applicable,
may, subject to the terms of the “Secured Indebtedness Documents” as defined in
the applicable Indentures, enter into a “Working Capital Facility” as defined
in the applicable Indentures (as such agreement may be amended, modified,
supplemented, extended, renewed, restated or refinanced, the “Working
Capital Facility Agreement”) under agreements evidencing such “Working
Capital Facility Indebtedness” as defined in the applicable Indentures, which
the Company desires to secure on a senior basis to the Interim Notes Liens (as
defined in the Interim ICA defined below) and the Pari Passu Indebtedness Liens
(as defined in the Interim ICA defined below), and on a partially senior basis
to and partially pari passu basis with the Note Liens (as defined in the New
Notes Indenture), such that the Working Capital Facility Indebtedness as
defined in the applicable Indenture shall be permitted to be secured by the
Working Capital Facility Collateral (as defined in the applicable Indenture) if
(x) the Secured Indebtedness Documents as defined in the applicable
Indenture, do not prohibit such Working Capital Facility Indebtedness from
being secured by the Working Capital Facility Collateral and (y) the
Working Capital Facility Collateral Agent as defined in the applicable
Indenture, for itself and on behalf of the lenders party to such Working
Capital Facility Agreement, executes and delivers a joinder hereto and becomes
a party to this Omnibus Agreement in accordance with Section 2.3
hereof.


 


WHEREAS, after the date
hereof, the Company may, subject to the terms and conditions of the Secured
Indebtedness Documents (as defined in the Interim Notes Indenture), incur
additional indebtedness that is pari
passu with the Interim Notes Indebtedness (the “Pari Passu Indebtedness”, as hereinafter
further defined) under agreements evidencing such Pari Passu Indebtedness,
which the Company desires to secure on a pari
passu basis with the Interim Notes Liens (as defined in the Interim ICA
defined below), but junior and subordinate to the Working Capital Facility
Liens (as defined in the Interim ICA) and senior to the Existing Notes Liens
(as defined in the Interim ICA defined below). 
Such Pari Passu Indebtedness shall be permitted to be secured by the
Pari Passu Collateral (such term is as defined in the Interim ICA defined
below) if (x) the Secured Indebtedness Documents (as defined in the
Interim Notes Indenture) do 


 


2

















 


not
prohibit such Pari Passu Indebtedness from being secured by the Pari Passu
Collateral and (y) the Pari Passu Collateral Agent (such term is used
herein as defined in the Interim ICA defined below), for itself and on behalf
of the Pari Passu Lenders (such term is used herein as defined in the Interim
ICA defined below), executes and delivers a joinder hereto and becomes a party
to this Omnibus Agreement in accordance with Section 2.3 hereof.


 


WHEREAS, certain of the
Existing Notes Noteholders have agreed to exchange Existing Notes held by such
Existing Notes Noteholders for the Interim Notes, and in connection therewith
Existing Notes Noteholders of at least a majority in aggregate principal amount
of the Existing Notes outstanding voting as a single class have agreed to enter
into this Omnibus Agreement; and


 


WHEREAS, it is a condition
precedent to the issuance by the Company of the Interim Notes that the Existing
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes Trustee,
the Interim Notes Collateral Agent, the Company and the Guarantors enter into
this Omnibus Agreement;


 


NOW, THEREFORE, in
consideration of the foregoing, the mutual covenants and obligations herein set
forth and for other good and valuable consideration, the adequacy and receipt
of which are hereby acknowledged, and in reliance upon the representations,
warranties and covenants herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:


 


Section 1. Definitions.  Unless otherwise specifically stated herein
(including through the Transition Incorporation), any capitalized terms used in
this Omnibus Agreement which are not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Interim Notes Indenture then
in effect, unless and until the occurrence of the Transition Effective Date
(defined below) in which case such defined terms are used herein as defined in
the New Notes Indenture then in effect.


 


Section 2. Effectiveness.


 


2.1           Initial Effectiveness.


 


(a)           This
Omnibus Agreement shall become effective as of the date first written above
(the “Initial Effective Date”) when each of the Company, the Guarantors,
the Existing Notes Trustee, the Existing Notes Collateral Agent, the Interim
Notes Trustee and the Interim Notes Collateral Agent shall have executed a
counterpart of this Omnibus Agreement and delivered a copy thereof to the
Interim Notes Trustee.


 


(b)           As
of the Initial Effective Date, the parties to this Omnibus Agreement shall
enter into the Amended and Restated Intercreditor Agreement in the form of Exhibit A attached
hereto (the “Interim ICA”).


 


2.2           Transition Effectiveness.


 


(a)           The
“Transition Effective Date” shall be the first date on which all of the
following conditions have been satisfied: 
(x) the occurrence of a Mandatory Redemption (as


 


3

















 


defined
in Section 3.11 of the Interim Notes Indenture) and receipt by the Company
of written confirmation from the Interim Notes Trustee that the Interim Notes
Indenture has been discharged in accordance with Section 13.01 thereof, (y) the
initial issuance of any New Notes in accordance with the terms of the New Notes
Indenture, and (z) the execution by the New Notes Trustee and the New
Notes Collateral Agent of a joinder agreement in the form of Exhibit C attached
hereto and their each becoming a party to this Omnibus Agreement as
contemplated by the New Notes Indenture.


 


(b)           Upon
the occurrence of the Transition Effective Date, automatically and without the
requirement of any further action on the part of any party hereto, (x) the
Interim ICA shall cease to be in effect and shall terminate in its entirety
(except for those agreements in the Interim ICA which, by their express terms,
survive termination), and (y) all of the provisions of Exhibit B attached
hereto shall be incorporated herein, and each reference in this Omnibus
Agreement to “this Omnibus Agreement”, “hereunder”, “hereof” or words of like
import referring to this Omnibus Agreement and each reference in the Existing
Notes Indenture, the Interim Notes Indenture, the New Notes Indenture, the
Working Capital Facility Agreement, the documents evidencing or governing the
Pari Passu Indebtedness, and all other related documents and instruments, to
the “Intercreditor Agreement” (or to the “Amended and Restated Intercreditor
Agreement”, to the “Omnibus Intercreditor Agreement” or to a like term in
reference to this Omnibus Agreement), “thereunder”, “thereof” or words of like
import referring to this Omnibus Agreement shall mean and be a reference to
this Omnibus Agreement subject to such incorporation of the provisions of Exhibit B
(the “Transition Incorporation”; this Omnibus Agreement giving effect to
such Transition Incorporation, the “New ICA”).  This Omnibus Agreement shall continue to be
in full force and effect and binding on all parties hereto through and after
the Transition Effective Date (and, for the avoidance of doubt, from and after
the Transition Effective Date the provisions of Exhibit B as incorporated herein
shall be in full force and effect and binding on all parties hereto).


 


2.3           Effectiveness
as to Additional Parties.  Other than
the parties whose execution and delivery of a counterpart hereof is a condition
to the Initial Effective Date or the Transition Effective Date (which execution
and delivery are contemplated by Sections 2.1 and 2.2), each party hereto
shall, by executing and delivering to the Interim Notes Trustee (prior to the
Transition Effective Date) or to the New Notes Trustee (on or after the
Transition Effective Date) a joinder agreement in substantially the form of Exhibit C attached hereto,
become a party hereto and bound by this Omnibus Agreement.  Each such party becoming a party hereto prior
to the Transition Effective Date shall also execute and deliver a joinder
agreement to, and become a party to and bound by, the Interim ICA.


 


Section 3. Covenants.


 


3.1           Further Assurances.


 


(a)           The
Existing Notes Trustee and the Existing Notes Collateral Agent each agrees
that, at the sole cost and expense of the Company, it shall, at any time and
from time to time upon the request of the Interim Notes Trustee (prior to the
Transition Effective Date) or the New Notes Trustee (on or after the Transition
Effective Date), promptly take such further action and execute and deliver such
additional documents and instruments (including without limitation


 


4

















 


a
ratification of its obligations hereunder, and taking any actions pursuant to Section 3.1(b),
and in each case in recordable form, if requested) as the Interim Notes Trustee
or New Notes Trustee may reasonably request to effectuate the terms of this
Omnibus Agreement.


 


(b)           Each
party hereto agrees that it shall, at any time and from time to time upon the
request of the Interim Notes Trustee (prior to the Transition Effective Date)
or the New Notes Trustee (on or after the Transition Effective Date), promptly enter
into, and execute and deliver to the Interim Notes Trustee or the New Notes
Trustee, as applicable, a joinder agreement in the form provided in the Interim
ICA (prior to the Transition Effective Date) or in the form provided in the New
ICA (on or after the Transition Effective Date), and take such further action
and execute and deliver such additional documents and instruments (in
recordable form, if requested) as the Interim Notes Trustee or New Notes
Trustee may reasonably request to effectuate the terms of the Interim ICA or
New ICA then in effect.  Each party
hereto further agrees that it shall, at any time and from time to time on or
after the Transition Effective Date, upon the request of the New Notes Trustee
(on or after the Transition Effective Date), promptly enter into, and execute
and deliver to the New Notes Trustee a counterpart of, an intercreditor
agreement substantially in the form of Exhibit B, and take such further
action and execute and deliver such additional documents and instruments (in
recordable form, if requested) as the New Notes Trustee may reasonably request
to effectuate the terms of such intercreditor agreement.  Notwithstanding whether any such request is made
or complied with, this Omnibus Agreement shall be effective as to, and binding
upon, all parties hereto.


 


(c)           The
Interim Notes Collateral Agent agrees that, upon the Transition Effective Date,
it shall (i) promptly deliver, or cause any third party holding Collateral
(as defined in the Interim Notes Indenture) on its behalf to deliver, the
remainder of the Collateral, if any, in its possession to the designee of the
New Notes Collateral Agent (except as may otherwise be required by applicable
law or court order), and (ii) promptly take such further action and
execute and deliver such additional documents and instruments (in recordable
form, if requested) as the New Notes Trustee may reasonably request to ensure
that the New Notes Collateral Agent has possession of, or “control” (as defined
in the UCC) over, such of the Collateral as is necessary or appropriate to
effect the purposes of the New Notes Indenture and the Note Documents (as
defined in the New Notes Indenture).


 


Section 4. Indemnification.  The Company and the Guarantors party hereto,
jointly and severally, hereby agree to indemnify and hold harmless Wells Fargo
Bank, National Association (or such other entity as may be designated as
contemplated by clauses (e) and (f) of the recitals hereto), in its
capacity as Existing Notes Trustee, Existing Note Collateral Agent, Interim
Notes Trustee, Interim Notes Collateral Agent, New Notes Trustee, or New Notes
Collateral Agent, as applicable, and the Pari Passu Collateral Agent and the
Working Capital Facility Collateral Agent, and in each case their respective
directors, officers, employees, agents, successors and assigns, against and
from any and all claims, actions, liabilities, costs and expenses of any kind
or nature whatsoever (including reasonable fees and disbursements of counsel,
costs and expenses of defending themselves against or investigating any claim
or liability and of complying with any process served upon them or any of their
employees, officers or agents in connection with the exercise or performance of
any of their powers or duties under this Omnibus Agreement or any Collateral
Agreement) that may be imposed on, incurred by, or asserted against any of
them, in any way relating to or arising out of this Omnibus Agreement or any


 


5

















 


Collateral Agreement, any
exercise of remedies hereunder or any other action taken or omitted by them
hereunder, except to the extent a court holds in final and nonappealable
judgment that such claims, actions, liabilities, costs and expenses directly
resulted from the gross negligence or willful misconduct of such indemnified
Persons.  The provisions of this Section 4
shall survive termination of this Omnibus Agreement and the discharge or
satisfaction of any of the Indentures.


 


Section 5. Governing
Law.  This Omnibus Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York applicable to contracts made and performed in such state and
any applicable laws of the United States of America.


 


Section 6. Binding
on Successors and Assigns.  This
Omnibus Agreement shall be binding upon the Existing Notes Trustee, the Interim
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes
Collateral Agent, the Holders, each other party that hereafter joins this
Omnibus Agreement (including but not limited to the New Notes Trustee, the New
Notes Collateral Agent, Working Capital Facility Collateral Agent, the Working
Capital Facility Lenders, the Pari Passu Collateral Agent, the Pari Passu
Lenders), and in each case, their respective permitted successors and assigns.


 


Section 7. Counterparts.
 This Omnibus Agreement may be executed
in one or more counterparts, each of which shall be an original and all of
which shall together constitute one and the same document.  Delivery of an executed counterpart of this
Omnibus Agreement by facsimile or electronic transmission shall be equally as
effective as delivery of an original executed counterpart of this Omnibus
Agreement.  Any party delivering an
executed counterpart of this Omnibus Agreement by facsimile or electronic
transmission also shall deliver an original executed counterpart of this
Omnibus Agreement, but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this
Omnibus Agreement.


 


Section 8. Amendments,
Etc..  No amendment, modification,
waiver or termination of any of the provisions of this Omnibus Agreement shall
be deemed to be made or effective unless the same shall be in writing signed by
each of the parties at such time party hereto.


 


Section 9. Direction
by Majority Holders.  In accordance
with the Interim Notes Indenture, Holders of a majority in principal amount of
the then outstanding Interim Notes may direct the exercise of all powers and
remedies conferred on or available to the Interim Notes Trustee hereunder
(including without limitation the right to make requests on the Existing Notes
Trustee, the Existing Notes Collateral Agent or any other party hereto,
pursuant to Section 3.1 or otherwise).  In accordance with the New Notes Indenture,
Holders of a majority in principal amount of the then outstanding New Notes may
direct the exercise of all powers and remedies conferred on or available to the
New Notes Trustee hereunder (including without limitation the right to make
requests on the Existing Notes Trustee, the Existing Notes Collateral Agent or
any other party hereto, pursuant to Section 3.1 or otherwise).  However, in accordance with the terms of each
Indenture (including, without limitation, Article 7, Article 8, Article 10
and Article 11), the Interim Notes Trustee or the New Notes Trustee, as
the case may be, may refuse to follow any direction that conflicts with law or
the applicable Indenture, this Omnibus Agreement, or the


 


6

















 


Collateral
Agreements that such Interim Notes Trustee or New Notes Trustee determines may
be unduly prejudicial to the rights of other Holders or that may involve the
Interim Notes Trustee or New Notes Trustee in personal liability or
expense.  In addition, all powers and
remedies conferred on or available to the Interim Notes Trustee or New Notes
Trustee pursuant to Section 3 hereof, constituting rights to make requests
on the Existing Notes Trustee, the Existing Notes Collateral Agent or any other
party hereto, may (without prejudice to the foregoing) be exercised by Holders
of a majority in principal amount of the then outstanding Interim Notes or New
Notes, as applicable, acting directly and not through the Interim Notes Trustee
or New Notes Trustee.


 


Section 10. MUTUAL WAIVER
OF JURY TRIAL.  THE PARTIES
HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH,
THIS OMNIBUS AGREEMENT OR THE TRANSACTIONS RELATED THERETO.


 


[The remainder of this page has been
intentionally left blank.]


 


7

















 


IN WITNESS WHEREOF, the parties hereto have executed this
Omnibus Agreement as of the date first written above.


 


 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, as Existing Notes Trustee and Existing Notes Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Patrick T. Giordano

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, as Interim Notes Trustee and Interim Notes Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Patrick T. Giordano

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER CORPORATION

  
	
   

  	
  FIBERTOWER NETWORK SERVICES CORP.

  
	
   

  	
  ART LEASING, INC.

  
	
   

  	
  ART LICENSING CORP.

  
	
   

  	
  TELIGENT SERVICES ACQUISITION, INC.

  
	
   

  	
  FIBERTOWER SOLUTIONS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Thomas A. Scott

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  185 Berry St., Suite 400

  
	
   

  	
  San Francisco, CA 94107

  
	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
  Telecopy No.: (415) 659-0007

  
	
   

  	
  Email Address: tscott@fibertower.com

  



 
















 


EXHIBIT A


 


AMENDED AND RESTATED INTERCREDITOR
AGREEMENT


 


This AMENDED AND RESTATED
INTERCREDITOR AGREEMENT, dated as of
[                ]
[    ], 2009, is entered into by and among (a) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as trustee pursuant to the Existing Notes Indenture (as hereinafter
defined) for the Existing Notes Noteholders (as hereinafter defined) (in such
capacity, together with its successors and assigns in such capacity, the “Existing
Notes Trustee”); (b) WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, in its capacity as collateral agent pursuant to
the Existing Notes Collateral Agreements (as hereinafter defined) for the
benefit of the Existing Notes Trustee and the Existing Notes Noteholders (in
such capacity, together with its successors and assigns in such capacity, the “Existing
Notes Collateral Agent”); (c) WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, in its capacity as trustee pursuant to the
Interim Notes Indenture (as hereinafter defined) for the Interim Notes
Noteholders (as hereinafter defined) (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Trustee”); (d) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Interim Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes
Trustee and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Collateral Agent”);
(e) each additional AUTHORIZED REPRESENTATIVE from time to time  party hereto for the Additional Secured Parties of the Series of
Secured Debt with respect to which it is acting in such capacity; and (f) FIBERTOWER
CORPORATION, a Delaware corporation, FIBERTOWER NETWORK SERVICES CORP., a
Delaware corporation, ART LEASING, INC., a Delaware corporation, TELIGENT
SERVICES ACQUISITION, INC., a Delaware corporation, ART LICENSING CORP., a
Delaware corporation, and FIBERTOWER SOLUTIONS CORPORATION, a Delaware
corporation.


 


W I T N E S S E T H:


 


WHEREAS, the Company (as
hereinafter defined), the Guarantors (as hereinafter defined) and the Existing
Notes Trustee have entered into the Indenture, dated as of November 9,
2006, (as such Indenture may be amended, modified, supplemented, extended,
renewed, restated or refinanced, the “Existing Notes Indenture”)
governing the 9.00% Convertible Senior Secured Notes due 2012 (such notes,
the “Existing Notes”) issued by the Company to the Existing Notes
Noteholders;


 


WHEREAS, on the date hereof
the Company, the Guarantors and the Interim Notes Trustee have entered into the
Indenture, dated as of December 7, 2009, (as such Indenture may be
amended, modified, supplemented, extended, renewed, restated or refinanced, the
“Interim Notes Indenture”) governing the 9.00% Mandatorily
Redeemable Convertible Senior Secured Notes due 2012 (such notes, including the
Initial Interim Notes and any Additional Interim Notes (each, as defined
below), the “Interim Notes”) issued by the Company to the Interim Notes
Noteholders (as defined below);


 

















 


WHEREAS, after the date
hereof, the Company and the Guarantors may, subject to the terms of the Secured
Debt Documents enter into a Working Capital Facility (as defined below) (as
such agreement may be amended, modified, supplemented, extended, renewed,
restated or refinanced, the “Working Capital Facility Agreement”) under
agreements evidencing such Working Capital Facility Indebtedness, which the
Company desires to secure on a senior basis to the Notes Liens and the Pari
Passu Liens.  The Working Capital
Facility Indebtedness (as defined below) shall be permitted to be secured by
the Working Capital Facility Collateral (as defined below) if (x) the
Secured Debt Documents do not prohibit such Working Capital Facility
Indebtedness from being secured by the Working Capital Facility Collateral and (y) the
Working Capital Facility Collateral Agent, for itself and on behalf of the
lenders party to such Working Capital Facility Agreement, execute and deliver a
joinder agreement hereto and become a party to this Agreement pursuant to the
requirements of Section 8.7 hereof.


 


WHEREAS, after the date
hereof, the Company may, subject to the terms and conditions of the Secured
Debt Documents, incur additional indebtedness that is pari passu with the Interim Notes Indebtedness (the “Pari
Passu Indebtedness”, as
hereinafter further defined) under agreements evidencing such Pari Passu
Indebtedness, which the Company desires to secure on a pari passu basis with the Interim Notes Liens (but junior and
subordinate to the Working Capital Facility Liens and senior to the Existing
Notes Liens).  Such Pari Passu
Indebtedness shall be permitted to be secured by the Pari Passu Collateral if (x) the
Secured Debt Documents do not prohibit such Pari Passu Indebtedness from being
secured by the Pari Passu Collateral and (y) the Pari Passu Collateral
Agent, for itself and on behalf of the Pari Passu Lenders (as hereinafter
defined) execute and deliver a joinder agreement hereto and become a party to
this Agreement pursuant to the requirements of Section 8.7 hereof.


 


WHEREAS, certain of the
Existing Notes Noteholders have agreed to exchange Existing Notes held by such
Existing Notes Noteholders for the Initial Interim Notes, and in connection
therewith Existing Notes Noteholders of at least a majority in aggregate
principal amount of the Existing Notes outstanding voting as a single class
have agreed to amend and restate the form of Intercreditor Agreement attached
as Exhibit G to the Existing Notes Indenture in its entirety pursuant to
this Agreement; and


 


WHEREAS, it is a condition
precedent to the issuance by the Company of the Interim Notes that the Existing
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes Trustee,
the Interim Notes Collateral Agent, the Company and the Guarantors enter into
this Agreement;


 


NOW, THEREFORE, in
consideration of the foregoing, the mutual covenants and obligations herein set
forth and for other good and valuable consideration, the adequacy and receipt
of which are hereby acknowledged, and in reliance upon the representations,
warranties and covenants herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:


 


Section 1. Definitions.
 Unless otherwise specifically stated,
any capitalized terms used in this Agreement which are not otherwise defined
herein shall have the respective meanings ascribed to such terms in the
Indentures then in effect or, if the Indentures define the same term
differently, in the Interim Notes Indenture as then in effect.  As used in this Agreement, the


 


2

















 


following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and the
plural form of the terms indicated):


 


“Additional Interim Notes”
means the aggregate principal amount of Interim Notes (other than the Initial
Interim Notes) issued under the Interim Notes Indenture (i) in lieu of
interest payment on the Initial Interim Notes as permitted by Section 5.09
of the Interim Notes Indenture and paragraph “1. Interest” in the form of
Interim Note attached as Exhibit A thereto or (ii) subject to
the satisfaction of all of the covenants in the Interim Notes Indenture,
including, without limitation, Sections 5.09 and 5.12 of the
Interim Notes Indenture, in each case in the form of Exhibit A
thereto, as part of the same series as the Initial Interim Notes.


 


“Additional Secured
Parties” means, with respect to the Working Capital Facility Indebtedness
and the Pari Passu Indebtedness, the holders of such Indebtedness, any trustee
or agent therefor under any related promissory notes, indentures, collateral
documents or other operative agreements evidencing or governing such
Indebtedness, in each case, as amended, restated, refinanced or otherwise
modified from time to time, but shall not include the Obligors.


 


“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 definition,
“control,” 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 beneficial ownership of 10% or more of
the Voting Stock of a Person will be deemed to be control.  For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.


 


“Agreement” means
this Amended and Restated Intercreditor Agreement, as amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof.


 


“asset” means any
asset or property (tangible and intangible).


 


“Asset Sale” means in
a single transaction or a series of related transactions:  (i) the sale, lease, conveyance or other
disposition of any assets or rights (including by way of a sale and leaseback
transaction), other than the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole; and (ii) the issuance or sale of Equity
Interests of any of the Company’s Restricted Subsidiaries or the sale of Equity
Interests in any of the Company’s Subsidiaries. 
For purposes of this definition, the term “Asset Sale” shall not
include:


 


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


 


(2)           a transfer of assets between
or among the Company and its wholly-owned Guarantors;


 


(3)           an issuance of Equity Interests
by a Restricted Subsidiary of the Company to the Company or to a wholly-owned
Guarantor;


 


3

















 


(4)           the sale or lease of
products, services or accounts receivable in the ordinary course of business or
equipment or other assets pursuant to a program for the maintenance or
upgrading of such equipment or assets including, without limitation, the
disposition of equipment that is worn out or obsolete; and


 


(5)           the sale or other
disposition of cash or Cash Equivalents.


 


“Authorized Representative” means (i) in
the case of any Working Capital Facility Obligations, the Working Capital
Facility Collateral
Agent on its own behalf and on behalf of the Working Capital
Facility Lenders, (ii) in the case of the Existing Notes Obligations, the
Existing Notes Collateral Agent on its own behalf and on behalf of the Existing
Notes Noteholders, (iii) in the case of the Interim Notes Obligations, the
Interim Notes Collateral Agent on its own behalf and on behalf of the Interim
Notes Noteholders, and (iv) in the case of the Pari Passu Obligations, the
Pari Passu Collateral Agent on its own behalf and on behalf of the Pari Passu
Lenders.


 


“Bankruptcy Code”
means Title 11 of the United States Code (11 U.S.C. 101 et seq.), as amended
from time to time, and any successor statute, or if the context so requires,
any similar federal or state law.


 


“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 Saturday, a Sunday or a day on which banking institutions
in The City of New York, New York or San Francisco, California or at a place of
payment are authorized or required by law, regulation or executive order to
remain closed.


 


“Capital Lease
Obligations” means, at the time any determination is to be made, the amount
of the liability in respect of a capital lease that would at that 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:


 


(1)           in the case of a
corporation, corporate stock;


 


(2)           in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock;


 


4

















 


(3)           in the case of a partnership
or limited liability company, partnership interests (whether general or limited)
or membership interests, respectively; and


 


(4)           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 in profits, losses or distribution of assets with Capital Stock.


 


“Cash Equivalents”
means:


 


(1)           United States dollars;


 


(2)           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 pledged in support of those securities)
having maturities of not more than twelve months from the date of acquisition;


 


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


 


(4)           repurchase obligations with
a term of not more than seven (7) days for underlying securities of the
types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;


 


(5)           commercial paper having one
of the two highest ratings obtainable from Moody’s or Standard & Poor’s
and, in each case, maturing within twelve months after the date of acquisition;
and


 


(6)           money market funds at least
95% of the assets of which constitute Cash Equivalents of the kinds described
in clauses (1) through (5) of this definition.


 


“Collateral” means
all collateral of whatsoever nature purported to be subject to the lien of any
of the Secured Debt Documents.


 


“Collateral Documents”
means, collectively, (i) the Working Capital Facility Collateral
Documents, (ii) the Notes Collateral Documents, and (iii) the Pari
Passu Collateral Documents.


 


“Company” means
FiberTower Corporation, and its successors and assigns, including, without
limitation, any receiver, trustee or debtor-in-possession on behalf of such
person or on behalf of any successor or assign.


 


“Comparable Noteholder
Collateral Document” means, in relation to any Shared Collateral subject to
any Working Capital Facility Security Document, that Noteholder Collateral


 


5

















 


Document which creates a security interest in
the same Collateral, granted by the same Obligor or Obligors.


 


“Comparable Pari Passu
Collateral Document” means, in relation to any Shared Collateral that is
also Pari Passu Collateral, subject to any Working Capital Facility Security
Document, that Pari Passu Collateral Document which creates a security interest
in the same Collateral, granted by the same Obligor or Obligors.


 


“Controlling Collateral
Agent” means, with respect to any Shared Collateral, (i) from and
after the incurrence of the Working Capital Facility Obligations until the
Discharge of Working Capital Facility Obligations, the Working Capital Facility
Collateral Agent, and (ii) until the Discharge of Interim Notes Obligations,
provided that no Working Capital Facility Obligations are outstanding, the
Primary Notes Collateral Agent.


 


“Controlling Secured Parties” means,
with respect to any Shared Collateral, the Secured Parties whose Authorized
Representative is the Controlling Collateral Agent for such Shared Collateral.


 


“Discharge of Interim
Notes Obligations” means the occurrence of all of the following:


 


(1)           payment in full in cash of
the principal of and interest and premium (if any) on all Interim Notes
Indebtedness; and


 


(2)           payment in full in cash of
all other Interim Notes Obligations that are outstanding and unpaid at the time
the Interim Notes Indebtedness is paid in full in cash (other than any
obligations for taxes, costs, indemnifications, reimbursements, damages and
other liabilities in respect of which no claim or demand for payment has been
made at such time); or


 


(3)           mandatory redemption of the
Interim Notes shall have occurred in accordance with the Interim Notes
Indenture which results in a satisfaction and discharge of the Interim Notes
Indenture, provided that the “Transition Effective Date” and “Transition
Incorporation”, each as defined in the Omnibus Intercreditor Agreement between
the parties hereto to which this Agreement is attached as Exhibit A, shall
have occurred and the “New ICA”, as so defined, shall be effective.


 


“Discharge of Working
Capital Facility Obligations” means the occurrence of all of the following:


 


(1)           termination or expiration of
all commitments to extend credit that would constitute Working Capital Facility
Indebtedness;


 


(2)           payment in full in cash of
the principal of and interest and premium (if any) on all Working Capital
Facility Indebtedness (other than any undrawn letters of credit);


 


(3)           cash collateralization (at
the lower of (i) 110% of the aggregate undrawn amount and (ii) the
percentage of the aggregate undrawn amount required for release of


 


6

















 


Liens
under the terms of the applicable Working Capital Facility Document),
expiration, termination or return to the issuing bank of all outstanding
letters of credit constituting Working Capital Facility Indebtedness; and


 


(4)           payment in full in cash of
all other Working Capital Facility Obligations that are outstanding and unpaid
at the time the Working Capital Facility Obligations are paid in full in cash
(other than any obligations for taxes, costs, indemnifications, reimbursements,
damages and other liabilities in respect of which no claim or demand for
payment has been made at such time).


 


“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 of the
Capital Stock, in whole or in part, on or prior to the date that is ninety-one
(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 does not
violate any of the Indentures then in effect.


 


“Enforcement Action”
means the commencement of any judicial or nonjudicial enforcement, collection,
execution, levy or foreclosure action or proceeding with respect to, or seeking
to have a trustee, receiver, liquidator or similar official appointed for or
over, attempting any action to take possession of, or otherwise exercising any
enforcement right, remedy or power with respect to, or otherwise taking any
action to enforce its security interest in or realize upon, or take any other
enforcement action available to it in respect of, any Shared Collateral
(including with respect to any intercreditor agreement with respect to any
Shared Collateral), whether under any Collateral Document, applicable law or
otherwise, other than as permitted in Section 3.1(b).


 


“Equally and Ratably”
means, in reference to sharing Liens or Proceeds thereof with respect to Shared
Collateral as between the Senior Subordinated Secured Parties, that such Liens
or proceeds will be allocated and distributed to the Primary Notes Collateral
Agent (for the account of the Interim Notes Noteholders) and the Pari Passu
Collateral Agent (for the account of the Pari Passu Lenders), ratably in
proportion to outstanding Obligations in respect of the Interim Notes
Indebtedness and Pari Passu Indebtedness, as applicable, when the allocation or
distribution is made.


 


“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).


 


“Existing Notes”
shall have the meaning set forth in the recitals hereto.


 


7

















 


“Existing Notes
Collateral” means all of the assets of any Obligor (other than the Capital
Stock or assets of Guarantors that hold the Company’s 24 GHz or 39 GHz FCC
Licenses), whether real, personal or mixed, with respect to which a Lien is
granted as security for any Existing Notes Obligations.


 


“Existing Notes
Collateral Agreement” means the Pledge and Security Agreement, dated as of November 9,
2006, among the Obligors party thereto and the Existing Notes Collateral Agent,
as the same may be amended, modified, supplemented, extended, renewed, or
restated from time to time.


 


“Existing Notes
Collateral Documents” means this Agreement, the Existing Notes Collateral
Agreement, the Existing Notes Mortgages, and any other document or instrument
executed and delivered at any time pursuant to any Existing Notes Document or
otherwise, pursuant to which a Lien is granted by an Obligor to secure any
Existing Notes Obligations or under which rights or remedies with respect to
any such Lien are governed, as the same may be amended, modified, supplemented,
extended, renewed, or restated from time to time.


 


“Existing Notes Documents”
means the Existing Notes Indenture, the Existing Notes, the Existing Notes
Guarantees, the Existing Notes Collateral Documents and any other agreements
governing, securing or relating to any Existing Notes Obligations.


 


“Existing Notes Guarantee”
means the guarantee by each Guarantor of the Company’s payment obligations
under the Existing Notes Indenture.


 


“Existing Notes
Indebtedness” means the $293,796,440 aggregate principal amount of Existing
Notes issued under the Existing Notes Indenture and outstanding on the date
hereof.


 


“Existing Notes Indenture”
shall have the meaning set forth in the recitals hereto.


 


“Existing Notes Lien”
means a Lien granted by an Existing Notes Collateral Document to the Existing
Notes Collateral Agent (or any other holder, or representative of holders, of
Existing Notes Obligations), at any time, upon any assets of the Company or any
Guarantor to secure Existing Notes Obligations.


 


“Existing Notes Mortgages”
means a collective reference to each mortgage, deed of trust and any other
document or instrument under which any Lien on real property owned or leased by
any Obligor is granted to secure any Existing Notes Obligations or under which
rights or remedies with respect to any such Liens are governed, as the same may
be amended, modified, supplemented, extended, renewed, or restated from time to
time.


 


“Existing Notes
Noteholders” means the Persons holding Existing Notes Indebtedness.


 


“Existing Notes Obligations”
means Existing Notes Indebtedness and all other Obligations in respect thereof.


 


“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,


 


8

















 


determined in good faith by
the Board of Directors of the Company (unless otherwise provided in the
Indentures then in effect), evidenced by a resolution delivered to the Trustee.


 


“FCC” means the U.S.
Federal Communications Commission and any successor agency that is responsible
for regulating the U.S. telecommunications industry.


 


“FCC License” means
any authorization, license or permit issued by the FCC, together with any
extensions or renewals thereof.


 


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


 


“Guarantor” means
each Domestic Restricted Subsidiary of the Company on the date hereof, and each
other Domestic Restricted Subsidiary of the Company that executes a Note
Guarantee in accordance with the provisions of the Indentures then in effect,
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 the Indentures then in effect.


 


“Hedging Obligations”
means, with respect to any Person, the obligations of such Person, incurred in
the ordinary course of business to protect against interest rate and foreign
currency exchange rate fluctuations, under:


 


(1)           interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements;


 


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


 


(3)           other agreements or
arrangements designed to protect such Person against fluctuations in currency
exchange rates or commodity prices.


 


“Indentures” means,
collectively, (i) the Existing Notes Indenture, and (ii) the Interim
Notes Indenture.


 


“Initial Interim Notes”
means $266,791,438 aggregate principal amount of Interim Notes issued under the
Interim Notes Indenture on December 7, 2009.


 


“Insolvency Proceeding”
means, as to any Person, any of the following: (a) any case or proceeding
with respect to such Person under the Bankruptcy Code or any other federal or
state bankruptcy, insolvency, reorganization, arrangement, composition or
readjustment of the obligations and Indebtedness of such Person; (b) any
proceeding seeking the appointment of any trustee, receiver, liquidator,
custodian or other insolvency official with similar powers with respect to such
Person or any of its assets; (c) any proceeding for liquidation,
dissolution or other winding up of the business of such Person; or (d) any
assignment for the benefit of creditors or any marshaling of assets of such
Person.


 


9

















 


“Interim Notes” shall
have the meaning set forth in the recitals hereto.


 


“Interim Notes Collateral”
means all of the assets of any Obligor, whether real, personal or mixed, with
respect to which a Lien is granted as security for any Interim Notes
Obligations.


 


“Interim Notes Collateral
Agreement” means the Collateral Agreement, dated as of December 7,
2009, among the Obligors party thereto and the Interim Notes Collateral Agent,
as the same may be amended, modified, supplemented, extended, renewed, or
restated from time to time.


 


“Interim Notes Collateral
Documents” means this Agreement, the Interim Notes Collateral Agreement,
the Interim Notes Mortgages, and any other document or instrument executed and
delivered at any time pursuant to any Interim Notes Document or otherwise,
pursuant to which a Lien is granted by an Obligor to secure any Interim Notes
Obligations or under which rights or remedies with respect to any such Lien are
governed, as the same may be amended, modified, supplemented, extended,
renewed, or restated from time to time.


 


“Interim Notes Documents”
means the Interim Notes Indenture, the Interim Notes, the Interim Notes
Guarantees, the Interim Notes Collateral Documents, the Interim Notes
Registration Rights Agreement and any other agreements governing, securing or
relating to any Interim Notes Obligations.


 


“Interim Notes Guarantee”
means the guarantee by each Guarantor of the Company’s payment obligations
under the Interim Notes Indenture.


 


“Interim Notes
Indebtedness” means (1) the Initial Interim Notes and the Interim
Notes Guarantees issued on December 7, 2009, and (2) any Additional
Interim Notes and Interim Notes Guarantees thereon issued pursuant to the
Indenture.


 


“Interim Notes Indenture”
shall have the meaning set forth in the recitals hereto.


 


“Interim Notes Lien”
means a Lien granted by an Interim Notes Collateral Document to the Interim
Notes Collateral Agent (or any other holder, or representative of holders, of
Interim Notes Obligations), at any time, upon any assets of the Company or any
Guarantor to secure Interim Notes Obligations.


 


“Interim Notes Mortgages”
means a collective reference to each mortgage, deed of trust and any other
document or instrument under which any Lien on real property owned or leased by
any Obligor is granted to secure any Interim Notes Obligations or under which
rights or remedies with respect to any such Liens are governed, as the same may
be amended, modified, supplemented, extended, renewed, or restated from time to
time.


 


“Interim Notes
Noteholders” means the Persons holding Interim Notes Indebtedness.


 


“Interim Notes Obligations”
means Interim Notes Indebtedness and all other Obligations in respect thereof.


 


10

















 


“Interim
Notes Registration Rights Agreement” means the registration rights
agreement, to be dated as of the date of the mandatory redemption of the
Interim Notes, among the Company, the Guarantors and the initial purchasers of
the Interim Notes identified therein, as such agreement may be amended,
modified or supplemented from time to time in accordance with its terms.


 


“Junior Secured Parties”
means, collectively, (i) the Existing Notes Collateral Agent and the
Existing Notes Noteholders, (ii) the Senior Subordinated Secured Parties,
and (iii) each other Person that from time to time holds any Existing
Notes Indebtedness, Interim Notes Indebtedness or Pari Passu Indebtedness.  At all times, the Existing Notes Collateral
Agent and the Existing Notes Noteholders shall, in relationship to the Interim
Notes Collateral Agent and the Interim Notes Noteholders, constitute Junior
Secured Parties for all purposes of this Agreement.


 


“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 UCC (or equivalent
statutes) of any jurisdiction.


 


“Liquidated Damages”
means all liquidated damages then owing pursuant to the Interim Notes
Registration Rights Agreement.


 


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


 


“Net Proceeds” means
the aggregate cash proceeds received by the Company or any of its Restricted
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), net of (1) the direct costs relating to such
Asset Sale, including, without limitation, legal, accounting and investment
banking fees, sales commissions, relocation expenses incurred as a result of
the Asset Sale, and taxes paid or payable as a result of the Asset Sale after
taking into account any available tax credits or deductions and any tax sharing
arrangements, (2) amounts required to be applied to the repayment of
Indebtedness, other than Indebtedness under a Working Capital Facility, secured
by a Lien on the asset or assets that were the subject of such Asset Sale, and (3) any
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.


 


“Non-Controlling Secured Parties”
means, with respect to any Shared Collateral, the Secured Parties that are not
Controlling Secured Parties with respect to such Shared Collateral.


 


“Noteholders” means,
collectively, (i) the Existing Notes Noteholders, and (ii) the
Interim Notes Noteholders.


 


“Notes Collateral Agent”
means Wells Fargo Bank, National Association, in its capacity as Collateral
Agent under the Notes Collateral Documents, together with any successors in
such capacity.


 


11
















 


“Notes Collateral Documents” means,
collectively, (i) the Existing Notes Collateral Documents, and (ii) the
Interim Notes Collateral Documents.


 


“Notes Documents” means, collectively, (i) the
Existing Notes Documents, and (ii) the Interim Notes Documents.


 


“Notes Indebtedness” means, collectively, (i) the
Existing Notes Indebtedness, and (ii) the Interim Notes Indebtedness.


 


“Notes Obligations” means, collectively,
Obligations in respect of (i) the Existing Notes Indebtedness, and (ii) Interim
Notes Indebtedness.


 


“Obligations” means (1) with respect to
Existing Notes Indebtedness, any principal, premium, if any, accrued and unpaid
interest, monetary penalty, or damages, due by the Company or any Guarantor
under the terms of the Existing Notes or the Existing Notes Indenture, (2) with
respect to Interim Notes Indebtedness, any principal, premium, if any, accrued
and unpaid interest, including Liquidated Damages, if any, or monetary penalty,
or damages, due by the Company or any Guarantor under the terms of the Interim
Notes or the Interim Notes Indenture, (3) with respect to Working Capital
Facility Indebtedness, any principal (including reimbursement obligations with
respect to letters of credit whether or not drawn), interest (including, to the
extent legally permitted, all interest accrued thereon after the commencement
of any insolvency or liquidation proceeding at the rate, including any
applicable post-default rate, specified in the Working Capital Facility
Documents, even if such interest is not enforceable, allowable or allowed as a
claim in such proceeding), premium (if any), fees, indemnifications,
reimbursements, expenses and other liabilities payable by the Company or any
guarantor of the Working Capital Facility Indebtedness and (4) with
respect to Pari Passu Indebtedness, any principal (including reimbursement
obligations with respect to letters of credit whether or not drawn), interest
(including, to the extent legally permitted, all interest accrued thereon after
the commencement of any insolvency or liquidation proceeding at the rate,
including any applicable post-default rate, specified in the Pari Passu
Indebtedness Documents, even if such interest is not enforceable, allowable or
allowed as a claim in such proceeding), premium (if any), fees, indemnifications,
reimbursements, expenses and other liabilities payable by the Company or any
guarantor of the Pari Passu Indebtedness.


 


“Obligor” means the Company and any
Guarantor.


 


“Officer” means, with respect to any Person,
the Chairman of the Board, the Vice Chairman 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 an Officer of the Company, who must be the
Chief Executive Officer, the Chief Financial Officer, the Treasurer or the
Chief Accounting Officer of the Company.


 


“Pari Passu Collateral” means all of the
assets of any Obligor (other than the Capital Stock or assets of Guarantors
that hold the Company’s 24 GHz or 39 GHz FCC Licenses),


 


12

















 


whether real, personal or
mixed, with respect to which a Lien is granted as security for any Pari Passu
Obligations.


 


“Pari Passu Collateral Agent” means, at any
time, the Person serving at such time as the “Collateral Agent” under the
agreement governing any Pari Passu Indebtedness or any other representative
then most recently designated in accordance with the applicable provisions of
any such agreement, together with its successors in such capacity.


 


“Pari Passu Collateral Documents” means this
Agreement and any other document or instrument executed and delivered at any
time pursuant to any Pari Passu Indebtedness Document or otherwise, pursuant to
which a Lien is granted by an Obligor to secure any Pari Passu Obligations or
under which rights or remedies with respect to any such Lien are governed, as
the same may be amended, modified, supplemented, extended, renewed, or restated
from time to time.


 


“Pari Passu Indebtedness” means Indebtedness
permitted by clause (2) of the second paragraph of Section 5.09
of the Interim Notes Indenture.


 


“Pari Passu Indebtedness Cap” means the
principal amount outstanding under any Pari Passu Indebtedness in an aggregate
principal amount not to exceed $250.0 million.


 


“Pari Passu Indebtedness Documents” means the
Pari Passu Collateral Documents, and any other documents, instruments and
agreements executed by or on behalf of any Obligor which is or becomes a party
to any Pari Passu Indebtedness Document and delivered to or for the Pari Passu
Collateral Agent, securing or relating to any Pari Passu Obligations, and any
other transaction contemplated by the Pari Passu Indebtedness Documents, all as
amended, restated, supplemented or modified from time to time.


 


“Pari Passu Lenders” means the Persons
holding Pari Passu Indebtedness, including, without limitation, the Pari Passu
Collateral Agent.


 


“Pari Passu Lien” means a Lien granted to the
Pari Passu Collateral Agent (or any other holder, or representative of holders,
of Pari Passu Indebtedness), at any time, upon any assets of the Company or any
Guarantor to secure the Pari Passu Obligations.


 


“Pari Passu Obligations” means the Pari Passu
Indebtedness and all other Obligations in respect Pari Passu Indebtedness.


 


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


 


“Primary Notes Collateral Agent” means the
Interim Notes Collateral Agent, together with any successors in such capacity.


 


“Proceeds” shall have the meaning set forth
in Section 4.1.


 


13

















 


“Qualified Indemnification Claim” means any
claim for indemnification which the Working Capital Facility Collateral Agent
or any Working Capital Facility Lender has against any Obligor pursuant to the
indemnification obligations of the Company and the other Obligors under the
Working Capital Facility Documents as set forth in the Indemnification Claim
Notice (as defined below); provided, that (a) within five (5) Business
Days following delivery by the Notes Collateral Agent or the Pari Passu
Collateral Agent, as applicable, of an Exercise Notice (as defined herein), the
Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, is
provided with (i) a reasonably detailed description of such claim,
including the approximate amount (if any) of such claim, if known (the “Indemnification
Claim Notice”), and (ii) copies of all correspondence, if any, with
any Obligor in respect of such claim, or notices, if any, delivered to any Obligor
in respect of such claim, and (b) promptly following a request therefor by
the Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, on or
after the date on which the Exercise Notice is delivered by the Notes
Collateral Agent or Pari Passu Collateral Agent, as applicable, deliver such
other information as may be reasonably requested by the Notes Collateral Agent
or Pari Passu Collateral Agent, as applicable, in respect of such claim to the
extent that the Working Capital Facility Collateral Agent or any Working
Capital Facility Lender has such information in its actual possession or
control.


 


“refinance” means to refinance, repay,
prepay, replace, renew or refund.


 


“Required Noteholders” means, as applicable, (i) in
the case of the Existing Notes Indenture, the holders of an aggregate principal
amount of all Existing Notes Indebtedness (or portion thereof) then outstanding
required to approve any amendment or modification of the Existing Notes
Documents, or any termination or waiver of any provision of the Existing Notes
Documents, or any consent or departure by any of the Obligors therefrom, and (ii) in
the case of the Interim Notes Indenture, the holders of an aggregate principal
amount of all Interim Notes Indebtedness (or portion thereof) then outstanding
required to approve any amendment or modification of the Interim Notes
Documents, or any termination or waiver of any provision of the Interim Notes
Documents, or any consent or departure by any of the Obligors therefrom.  For purposes of this definition, Notes
Indebtedness registered in the name of, or beneficially owned by, any Obligor
or any of its Affiliates will be deemed not to be outstanding.


 


“Required Pari Passu Lenders” means, as
applicable, the holders of an aggregate principal amount of all Pari Passu
Indebtedness then outstanding required to approve any amendment or modification
of a Pari Passu Indebtedness Document, or any termination or waiver of any
provision of a Pari Passu Indebtedness Document, or any consent or departure by
any of the Obligors therefrom. For purposes of this definition, Pari Passu
Indebtedness registered in the name of, or beneficially owned by, any Obligor
or any of its Affiliates will be deemed not to be outstanding.


 


“Required Working Capital Facility Lenders”
means, as applicable, those Working Capital Facility Lenders required under the
terms of the Working Capital Facility Documents to approve any amendment or
modification of a Working Capital Facility Document, or any termination or
waiver of any provision of a Working Capital Facility Document, or any consent
or departure by any of the Obligors therefrom.


 


14

















 


“Restricted Subsidiary” of any Person means
any Subsidiary of such Person which at the time of determination is not an
Unrestricted Subsidiary.


 


“Secured Debt Documents” means, collectively,
the Notes Documents, the Working Capital Facility Documents and any Pari Passu
Indebtedness Documents.


 


“Secured Parties” means, collectively, (i) the
Working Capital Facility Collateral Agent and the Working Capital Facility
Lenders, (ii) the Existing Notes Collateral Agent, the Existing Notes
Trustee, and the Existing Notes Noteholders, (iii) the Interim Notes
Collateral Agent, the Interim Notes Trustee and the Interim Notes Noteholders,
and (iv) the Pari Passu Collateral Agent and the Pari Passu Lenders.


 


“Senior Indebtedness” means, collectively, (i) Working
Capital Facility Indebtedness, (ii) the Interim Notes Indebtedness, and (iii) the
Pari Passu Indebtedness.


 


“Senior Subordinated Secured Parties” means,
collectively, (i) the Interim Notes Collateral Agent and the Interim Notes
Noteholders, (ii) the Pari Passu Collateral Agent and the Pari Passu
Lenders, and (iii) each other Person that from time to time holds such
Obligations.


 


“Series of Secured Debt” means,
severally, each of Working Capital Facility Indebtedness, Notes Indebtedness
and the Pari Passu Indebtedness.


 


“Shared Collateral” means Collateral that
secures each of the Working Capital Facility Obligations, the Notes Obligations
and any Pari Passu Obligations, provided that the Shared Collateral with
respect to Existing Notes Indebtedness and Pari Passu Indebtedness shall not
include the assets and Capital Stock of Guarantors that hold the Company’s 24
GHz or 39 GHz FCC Licenses.


 


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


 


“Subsidiary” means, with respect to any
specified Person:


 


(1)           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


 


(2)           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 such Person or of one
or more Subsidiaries of such Person (or any combination thereof).


 


“Trustee” shall include, in addition to the
Existing Notes Trustee and Interim Notes Trustee referred to in the recitals
hereto, the then acting collateral agent under the Indentures then in effect
and any successor thereto exercising substantially the same rights and powers,
or if 


 


15

















 


there is no acting
collateral agent under the Indentures then in effect, the Noteholders holding a
majority in principal amount of Notes Indebtedness then outstanding.


 


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


 


“Unrestricted Subsidiary” means any
Subsidiary of the Company that is designated by the Board of Directors of the
Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of
Directors, but only to the extent such Subsidiary:


 


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


 


(2)           except as permitted by Section 5.11 to
the Indentures, is not a party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary other than
those that might be obtained at the time from Persons who are not Affiliates of
the Company or any Restricted Subsidiary;


 


(3)           is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (A) to subscribe for additional Equity Interests or (B) to
maintain or preserve such Person’s financial condition or to cause such Person
to achieve any specified levels of operating results; and


 


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


 


“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.


 


“Working Capital Facility” has the meaning
assigned to such term in the Interim Notes Indenture.


 


“Working Capital Facility Collateral” means
all of the assets of any Obligor, whether real, personal or mixed, with respect
to which a Lien is granted as security for any Working Capital Facility
Obligations.


 


“Working Capital Facility Collateral Agent”
means, at any time, the Person serving at such time as the “Collateral Agent”
under the Working Capital Facility or any other representative then most
recently designated in accordance with the applicable provisions of the Working
Capital Facility, together with its successors in such capacity.


 


“Working Capital Facility Debt Cap” means the
principal amount outstanding under the Working Capital Facility in an aggregate
principal amount not to exceed 110% of the amount at any one time outstanding
under clause (1) of Section 5.09 of the Interim Notes
Indenture (with letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Company thereunder) not to exceed
$50,00,000, less the aggregate amount of all Net Proceeds of Asset Sales
applied by the Company to repay any Indebtedness under the 


 


16

















 


Working Capital Facility and
effect a corresponding permanent commitment reduction thereunder pursuant to Section 5.10
of the Interim Notes Indenture.


 


“Working Capital Facility Documents” means
the Working Capital Facility, the Working Capital Facility Security Documents,
and all agreements governing or relating to any Working Capital Facility
Obligations.


 


“Working Capital Facility
Indebtedness” means:


 


(1)           Indebtedness of the Company,
the Guarantors and the guarantors under the Working Capital Facility Agreement
that was permitted to be incurred and secured under each applicable Secured
Debt Document (or as to which the lenders under the Working Capital Facility
Agreement obtained an Officers’ Certificate at the time of incurrence to the
effect that such Indebtedness was permitted to be incurred and secured by all
applicable Secured Debt Documents); and


 


(2)           Hedging Obligations incurred to hedge or manage
interest rate risk with respect to Working Capital Facility Indebtedness; provided,
that:


 


(a)           such Hedging Obligations are
secured by a Working Capital Facility Lien on all of the assets that secure
Indebtedness under the Working Capital Facility Agreement; and


 


(b)           such Working Capital
Facility Lien is senior to or on a parity with the Working Capital Facility
Liens securing Indebtedness under the Working Capital Facility Agreement.


 


“Working Capital Facility Lenders” means the
Persons holding Working Capital Facility Indebtedness.


 


“Working Capital Facility Lien” means a Lien
granted by a Working Capital Facility Security Document to the Working Capital
Facility Collateral Agent (or any Working Capital Facility Lender or other
representative of the Working Capital Facility Lenders), at any time, upon any
assets of the Company, any Guarantor or any guarantor under the Working Capital
Facility Agreement to secure Working Capital Facility Obligations.


 


“Working Capital Facility Obligations” means
the Working Capital Facility Indebtedness and all other Obligations in respect
of Working Capital Facility Indebtedness.


 


“Working Capital Facility Security Documents”
means this Agreement and all security agreements, pledge agreements, collateral
assignments, mortgages, deeds of trust, collateral agency agreements, control
agreements or other grants or transfers for security executed and delivered by
the Company or any Guarantor creating (or purporting to create) a Working
Capital Facility Lien upon collateral in favor of the Working Capital Facility
Collateral Agent, in each case, as amended, modified, renewed, restated or
replaced, in whole or in part, from time to time, in accordance with its terms.


 


17

















 


Section 2. Lien
Priorities.


 


2.1           Acknowledgment of Liens.


 


(a)           The Existing Notes Collateral Agent hereby acknowledges that
(i) the Interim Notes Collateral Agent, acting for and on behalf of the
Interim Notes Trustee and the Interim Notes Noteholders, has been granted Liens
upon the Interim Notes Collateral pursuant to the Interim Notes Collateral
Documents to secure the Interim Notes Obligations, (ii) to the extent any
Working Capital Facility Indebtedness is outstanding, the Working Capital
Facility Collateral Agent, acting for and on behalf of Working Capital Facility
Lenders, shall be granted Liens upon the Working Capital Facility Collateral
pursuant to the Working Capital Facility Documents to secure the Working
Capital Facility Obligations (subject to the principal amount thereof not
exceeding the Working Capital Facility Debt Cap) and (iii) to the extent
any Pari Passu Indebtedness is outstanding, the Pari Passu Collateral Agent,
acting for and on behalf of the Pari Passu Lenders, has been granted Liens upon
the Pari Passu Collateral pursuant to the Pari Passu Indebtedness Documents to
secure the Pari Passu Obligations (subject to the principal amount thereof not
exceeding the Pari Passu Indebtedness Cap).


 


(b)           The Interim Notes Collateral Agent hereby acknowledges that (i) the
Existing Notes Collateral Agent, acting for and on behalf of the Existing Notes
Trustee and the Existing Notes Noteholders, has been granted Liens upon the
Existing Notes Collateral pursuant to the Existing Notes Collateral Documents
to secure the Existing Notes Obligations, (ii) to the extent any Working
Capital Facility Indebtedness is outstanding, the Working Capital Facility
Collateral Agent, acting for and on behalf of Working Capital Facility Lenders,
has been granted Liens upon the Working Capital Facility Collateral pursuant to
the Working Capital Facility Documents to secure the Working Capital Facility
Obligations (subject to the principal amount thereof not exceeding the Working
Capital Facility Debt Cap) and (iii) to the extent any Pari Passu
Indebtedness is outstanding, the Pari Passu Collateral Agent, acting for and on
behalf of the Pari Passu Lenders, has been granted Liens upon the Pari Passu
Collateral pursuant to the Pari Passu Indebtedness Documents to secure the Pari
Passu Obligations (subject to the principal amount thereof not exceeding the
Pari Passu Indebtedness Cap).


 


2.2           Subordination.  Notwithstanding the order or time of
attachment, or the order, time or manner of perfection, or the order or time of
filing or recordation of any document or instrument, or other method of
perfecting a Lien in favor of the Working Capital Facility Collateral Agent or
any Working Capital Facility Lender, the Existing Notes Collateral Agent or any
Existing Notes Noteholder, the Interim Notes Collateral Agent or any Interim
Notes Noteholder, the Pari Passu Collateral Agent or any holder of any Pari
Passu Indebtedness, in each case in any Shared Collateral, and notwithstanding
any conflicting provisions, terms or conditions of the UCC or any other
applicable law or the Existing Notes Documents, the Interim Notes Documents,
the Pari Passu Indebtedness Documents or the Working Capital Facility Documents
or any other circumstance whatsoever, each of the Authorized Representatives
hereby agree that:


 


(a)           any Lien on the Working Capital Facility Collateral securing
any or all of the Working Capital Facility Obligations (subject to the
principal amount thereof not exceeding the Working Capital Facility Debt Cap)
now or hereafter held by the Working Capital Facility


 


18

















 


Collateral
Agent shall be senior and prior to any Lien on the Shared Collateral securing
any or all of the Existing Notes Obligations, the Interim Notes Obligations or
the Pari Passu Obligations, whether or not any such Liens securing any of the
Working Capital Facility Obligations are subordinated to any Lien securing any
other obligation of the Company or any Guarantor, in each case, on the terms
and in the manner set forth in this Agreement;


 


(b)           any Lien on the Shared Collateral securing any or all of the
Interim Notes Obligations or the Pari Passu Obligations now or hereafter held
by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent,
respectively, shall be senior and prior to any Lien on the Shared Collateral
securing any or all of the Existing Notes Obligations, whether or not any such
Liens securing any of the Interim Notes Obligations and the Pari Passu
Obligations are subordinated to any Lien securing any other obligation of the
Company or any Guarantor, in each case, on the terms and in the manner set
forth in this Agreement;


 


(c)           any Lien on the Shared Collateral now or hereafter held by
the Existing Notes Collateral Agent, the Interim Notes Collateral Agent or the
Pari Passu Collateral Agent, regardless of how acquired, shall be junior and
subordinate in all respects to all Liens on the Shared Collateral securing any
or all of the Working Capital Facility Obligations (subject to the principal
amount thereof not exceeding the Working Capital Facility Debt Cap); and


 


(d)           any Lien on the Shared Collateral now or hereafter held by
the Existing Notes Collateral Agent, regardless of how acquired, shall be
junior and subordinate in all respects to all Liens on the Shared Collateral
securing any or all of the Interim Notes Obligations and the Pari Passu
Obligations.


 


2.3           Pari Passu Liens.  Notwithstanding the order or time of
attachment, or the order, time or manner of perfection, or the order or time of
filing or recordation of any document or instrument, or other method of
perfecting a Lien in favor of the Interim Notes Collateral Agent or the Pari
Passu Collateral Agent in the Shared Collateral , and notwithstanding any
conflicting provisions, terms or conditions of the UCC or any other applicable
law or the Interim Notes Documents or the Pari Passu Indebtedness Documents or
any other circumstance whatsoever, the Interim Notes Collateral Agent (on
behalf of itself and the Interim Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) each hereby
agree that any Lien on the Shared Collateral securing any or all of the Pari
Passu Obligations (subject to the principal amount thereof not exceeding the
Pari Passu Indebtedness Cap) now or hereafter held by the Pari Passu Collateral
Agent or any Pari Passu Lender and securing any or all of the Interim Notes
Obligations now or hereafter held by the Interim Notes Collateral Agent or any
Interim Notes Noteholder, will to be pari passu to one another, in each case,
regardless of the time or order of attachment or perfection, and otherwise on
the terms and in the manner set forth in this Agreement.


 


2.4           Prohibition on Contesting
Liens.  Each of the Authorized
Representatives (for itself and on behalf of each other Secured Party of the Series of
Secured Debt with respect to which it is acting in such capacity) agrees that
it shall not (and hereby waives any right to) contest or support any other
Person in contesting, in any proceeding (including, without limitation, any
Insolvency Proceeding), the priority, validity or enforceability of a Lien held
by, or purported to be granted to, (i) the Working Capital Facility
Collateral Agent or any of the


 


19

















 


Working Capital Facility Lenders in any of
the Working Capital Facility Collateral, (ii) the Interim Notes Collateral
Agent or any of the Interim Notes Noteholders in any of the Interim Notes
Collateral, (iii) the Pari Passu Collateral Agent or any of the Pari Passu
Lenders in any of the Pari Passu Collateral, or (iv) the Existing Notes
Collateral Agent or any of the Existing Notes Noteholders in any of the
Existing Notes Collateral.


 


2.5           No New Liens.


 


(a)           After the incurrence of the Working Capital Facility
Obligations and until the Discharge of Working Capital Facility Obligations, (i) the
Existing Notes Collateral Agent agrees, for itself and on behalf of each
Existing Notes Noteholder, that the Existing Notes Collateral Agent and each
Existing Notes Noteholder shall not demand or receive any Lien upon any assets
or properties of any Obligor unless the Working Capital Facility Collateral
Agent has been granted a Lien on such assets or properties which is senior and
prior to the Liens thereon of the Notes Collateral Agent and the Noteholders; (ii) the
Interim Notes Collateral Agent agrees, for itself and on behalf of each Interim
Notes Noteholder, that the Interim Notes Collateral Agent and each Interim
Notes Noteholder shall not demand or receive any Lien upon any assets or
properties of any Obligor unless the Working Capital Facility Collateral Agent has
been granted a Lien on such assets or properties which is senior and prior to
the Liens thereon of the Interim Notes Collateral Agent; (iii) the Pari
Passu Collateral Agent agrees, for itself and on behalf of each Pari Passu
Lender, that the Pari Passu Collateral Agent and each Pari Passu Lender shall
not demand or receive any Lien upon any assets or properties of any Obligor
unless the Working Capital Facility Collateral Agent has been granted a Lien on
such assets or properties which is senior and prior to the Liens thereon of the
Pari Passu Collateral Agent and the Pari Passu Lenders; and (iv) the
parties hereto agree that, to the extent that the foregoing provisions of this Section 2.5(a) are
not complied with for any reason, after the date hereof, any amounts received
by or distributed to the Existing Notes Collateral Agent and/or the Existing
Notes Noteholders, the Interim Notes Collateral Agent and/or the Interim Notes
Noteholders or the Pari Passu Collateral Agent and/or the Pari Passu Lenders,
or any of them pursuant to or as a result of Liens granted in contravention of
this Section 2.5(a) shall be subject to Section 4.1.


 


(b)           Until the Discharge of Interim Notes Obligations, (i) the
Existing Notes Collateral Agent agrees, for itself and on behalf of each
Existing Notes Noteholder, that the Existing Notes Collateral Agent and each
Existing Notes Noteholder shall not demand or receive any Lien upon any assets
or properties of any Obligor unless the Interim Notes Collateral Agent has been
granted a Lien for the benefit of itself and the Interim Notes Noteholders on
such assets or properties which is senior and prior to the Liens thereon of the
Existing Notes Collateral Agent and the Existing Notes Noteholders; (ii) 
the Pari Passu Collateral Agent agrees, for itself and on behalf of each Pari
Passu Lender, that the Pari Passu Collateral Agent and each Pari Passu Lender
shall not demand or receive any Lien upon any assets or properties of any
Obligor unless the Interim Notes Collateral Agent has been granted a Lien on
such assets or properties which is pari passu in rank with the Liens thereon of
the Pari Passu Collateral Agent and the Pari Passu Lenders; and (iii) the
parties hereto agree that, to the extent that the foregoing provisions of this Section 2.5(b) are
not complied with for any reason, after the date hereof, any amounts received
by or distributed to the Existing Notes Collateral Agent and/or the Existing
Notes Noteholders or the Pari Passu Collateral Agent and/or the Pari Passu
Lenders, or any of them pursuant to or as a result of Liens granted in
contravention of this Section 2.5(b) shall be subject to Section 4.1.


 


20

















 


Section 3. Enforcement.


 


3.1           Exercise of Remedies.


 


(a)           With respect to any Shared Collateral, subject to the
provisions of Section 3.1(b), (i) only the Controlling Collateral
Agent shall act or refrain from acting with respect to any Enforcement Action
against the Shared Collateral (including with respect to any intercreditor agreement
with respect to any Shared Collateral) and shall have the right to instruct the
Authorized Representatives of the Non-Controlling Secured Parties to act or
refrain from acting with respect to any Enforcement Action against the Shared
Collateral, (ii) the Authorized Representatives of the Non-Controlling
Secured Parties shall follow all instructions with respect Enforcement Actions
against such Shared Collateral (including with respect to any intercreditor
agreement with respect to any Shared Collateral) from any representative of the
Controlling Collateral Agent (and shall not comply with instructions with
respect to Enforcement Actions against such Shared Collateral from any other
Secured Party (other than the Controlling Collateral Agent)) and (iii) no
Authorized Representative of any Non-Controlling Secured Party or other Secured
Party (other than the Controlling Collateral Agent) shall, or shall have the
right to, take any Enforcement Action against any Shared Collateral, it being
agreed that only the Controlling Collateral Agent shall be entitled to take any
such Enforcement Action with respect to Shared Collateral.  Notwithstanding the equal priority of the
Liens, the Controlling Collateral Agent may deal with the Shared Collateral
without regard to the equal priority Lien of the Non-Controlling Secured
Parties on such Collateral.  No
Authorized Representative of any Non-Controlling Secured Party nor any
Non-Controlling Secured Party will contest, protest or object to any
Enforcement Action brought by the Controlling Collateral Agent or Controlling
Secured Party, or any other exercise by the Controlling Collateral Agent or
Controlling Secured Party of any rights and remedies relating to the Shared
Collateral, in each case above in compliance with applicable law and this
Agreement, or support any other Person in so contesting, protesting or
objecting.  The foregoing shall not be
construed to limit the rights and priorities of any Secured Party, the
Controlling Collateral Agent or any Authorized Representative with respect to
any collateral not constituting Shared Collateral.  No Authorized Representative of any
Non-Controlling Secured Party will commence, or join with any Person (other
than the Controlling Collateral Agent upon the request thereof) in commencing
any Insolvency Proceeding against any Obligor or any Enforcement Action with
respect to any Lien held by it on the Shared Collateral.


 


(b)           Notwithstanding the foregoing, however, any Authorized
Representative may:


 


(i)            file a claim or statement of
interest with respect to its Obligations in any Insolvency Proceeding commenced
by or against one or more Obligors;


 


(ii)           take any action (not adverse
to the priority status of the Liens on the Shared Collateral or the rights of
the Controlling Collateral Agent to exercise remedies in respect thereof) in
order to create, perfect, preserve or protect its Lien on the Shared
Collateral;


 


(iii)          file any necessary
responsive or defensive pleadings in opposition to any motion, claim, adversary
proceeding or other pleading made by any person objecting to or


 


21

















 


otherwise seeking the
disallowance of the claims of the Controlling Collateral Agent or of any other
Secured Parties including any claims secured by the Collateral, if any, in each
case in accordance with the terms of this Agreement;


 


(iv)          vote on any plan of
reorganization, file any proof of claim, make other filings and make any
arguments and motions that are, in each case, in accordance with the terms of this
Agreement, with respect to the Obligations and the Shared Collateral; or


 


(v)           exercise any of its rights
or remedies with respect to the Collateral or commence an Insolvency Proceeding
against any Obligor after the termination of the 180-day period specified in Section 3.1(e) to
the extent permitted by Section 3.1(e).


 


(c)           Subject to Section 3.1(e) below, in
exercising rights and remedies with respect to the Shared Collateral, the
Controlling Collateral Agent may enforce the provisions of the Collateral
Documents and exercise remedies thereunder, all in such order and in such
manner as it may determine in the exercise of its sole discretion.  Such exercise and enforcement shall include,
without limitation, the rights of an agent appointed by it to sell or otherwise
dispose of Shared Collateral upon foreclosure, to incur expenses in connection
with such sale or disposition, and to exercise all the rights and remedies of a
secured party under the UCC of any applicable jurisdiction and of a secured
creditor under the Bankruptcy Code or similar laws of any applicable
jurisdiction.  Without limiting the
generality of the foregoing, except as expressly provided above in Sections
3.1(b) or in Section 6.4(b), the sole right of the
Non-Controlling Secured Parties is to hold a Lien on the Shared Collateral
pursuant to the applicable Collateral Documents for the period and to the
extent granted therein and to receive a share of the proceeds thereof, if any,
pursuant to Section 4.1.


 


(d)           Subject to Section 3.1(e) below, each of
the Non-Controlling Secured Parties hereby waives any and all rights it may
have as a junior lien creditor or otherwise to object to the manner in which
the Controlling Collateral Agent seeks to enforce or collect any Obligations or
any Liens granted in any of the Shared Collateral, to the extent such
enforcement or collection is in accordance with applicable law and not
inconsistent with this Agreement.


 


(e)           Notwithstanding anything to the contrary set forth herein,
in the event of the failure of the Company to make any payment in respect of (i) any
Notes Indebtedness in accordance with the terms of the Notes Documents or upon
the occurrence of any other Event of Default under any of the Notes Documents
and for so long as such Event of Default under any of the Notes Documents is
continuing, subject at all times to the provisions of Sections 2.2 and 4.1
hereof, or (ii) the Pari Passu Indebtedness in accordance with the terms
of the Pari Passu Indebtedness Documents or upon the occurrence of any other
Event of Default under the Pari Passu Indebtedness Documents and for so long as
such Event of Default under the Pari Passu Indebtedness Documents is
continuing, subject at all times to the provisions of Sections 2.2 and 4.1
hereof, in each case, commencing one hundred eighty (180) days after the
receipt by the Working Capital Facility Collateral Agent of the declaration by
the Trustee or the Existing Notes Collateral Agent or the Interim Notes
Collateral Agent, on the one hand, or Pari Passu Collateral Agent, on the other
hand, of such Event of Default under any of the Notes Documents or Pari Passu
Indebtedness Documents, as applicable, and of the written demand by the Trustee
or the Existing Notes Collateral Agent or the Interim Notes Collateral Agent,
on the one hand, or the


 


22

















 


Pari
Passu Collateral Agent, on the other hand, to the Company for the accelerated
payment of any or all Notes Obligations or Pari Passu Obligations, as
applicable (unless any Obligor is subject to an Insolvency Proceeding by reason
of which such declaration and the making of such demand is stayed, in which
case, commencing on the date of the commencement of such Insolvency
Proceeding), the Trustee or the Existing Notes Collateral Agent (except as
prohibited by any other provision of this Agreement, including paragraph (f) below)
or the Interim Notes Collateral Agent, on the one hand, or the Pari Passu
Collateral Agent, on the other hand, may take any action described in Section 3.1(a) above
with respect to its Liens on the Shared Collateral but only so long as the
Working Capital Facility Collateral Agent is not already diligently pursuing
the exercise of its enforcement rights or remedies against, or diligently
attempting to vacate any stay of enforcement of its Liens on, all or any
material portion of the Shared Collateral, in the case of the Existing Notes
Collateral Agent or the Interim Notes Collateral Agent and the Existing Notes
Noteholders or Interim Notes Noteholders, as applicable, and the Pari Passu
Collateral, in the case of the Pari Passu Collateral Agent and the Pari Passu
Lenders (including, without limitation, any of the following: subject to
applicable laws, the solicitation of bids from third parties to conduct the liquidation
of all or any material portion of the Shared Collateral, the engagement or
retention of sales brokers, marketing agents, investment bankers, accountants,
auctioneers or other third parties for the purpose of valuing, marketing,
promoting and selling a material portion of the Shared Collateral, the
notification of account debtors to make payments to the Working Capital
Facility Collateral Agent or its agent, any action to take possession of all or
any material portion of the Shared Collateral or commencement of any legal
proceedings or actions against or with respect to all or any material portion
of the Shared Collateral).


 


(f)            Notwithstanding anything to the contrary set forth herein,
in the event of the failure of the Company to make any payment in respect of (i) the
Existing Notes Indebtedness in accordance with the terms of the Existing Notes
Documents or upon the occurrence of any other Event of Default under the
Existing Notes Documents and for so long as such Event of Default under the
Notes Documents is continuing, subject at all times to the provisions of Sections
2.2 and 4.1 hereof, or (ii) the Pari Passu Indebtedness in
accordance with the terms of the Pari Passu Indebtedness Documents or upon the
occurrence of any other Event of Default under the Pari Passu Indebtedness
Documents and for so long as such Event of Default under the Pari Passu
Indebtedness Documents is continuing, subject at all times to the provisions of
Sections 2.2 and 4.1 hereof, in each case, commencing one hundred
eighty (180) days after the later of (i) the Discharge of Working Capital
Facility Obligations (if any) and (ii) receipt by the Interim Notes
Collateral Agent of the declaration by the Existing Notes Trustee or the
Existing Notes Collateral Agent, on the one hand, or Pari Passu Collateral
Agent, on the other hand, of such Event of Default under the Existing Notes
Documents or Pari Passu Indebtedness Documents, as applicable, and of the
written demand by the Existing Notes Trustee or the Existing Notes Collateral Agent,
on the one hand, or the Pari Passu Collateral Agent, on the other hand, to the
Company for the accelerated payment of all Existing Notes Obligations or Pari
Passu Obligations, as applicable (unless any Obligor is subject to an
Insolvency Proceeding by reason of which such declaration and the making of
such demand is stayed, in which case, commencing on the date of the
commencement of such Insolvency Proceeding), the Existing Notes Trustee or the
Existing Notes Collateral Agent, on the one hand, or the Pari Passu Collateral
Agent, on the other hand, may take any action described in Section 3.1(a) above
with respect to its Liens on the Collateral but only so long as the Interim
Notes Collateral Agent is not


 


23

















 


already
diligently pursuing the exercise of its enforcement rights or remedies against,
or diligently attempting to vacate any stay of enforcement of its Liens on, all
or any material portion of the Shared Collateral, in the case of the Existing
Notes Collateral Agent and the Existing Notes Noteholders, and the Pari Passu
Collateral, in the case of the Pari Passu Collateral Agent and the Pari Passu
Lenders (including, without limitation, any of the following: subject to
applicable laws, the solicitation of bids from third parties to conduct the
liquidation of all or any material portion of the Shared Collateral, the
engagement or retention of sales brokers, marketing agents, investment bankers,
accountants, auctioneers or other third parties for the purpose of valuing,
marketing, promoting and selling a material portion of the Shared Collateral,
the notification of account debtors to make payments to the Interim Notes
Collateral Agent or its agent, any action to take possession of all or any
material portion of the Shared Collateral or commencement of any legal
proceedings or actions against or with respect to all or any material portion
of the Shared Collateral).


 


Section 4. Payments.


 


4.1           Application of Proceeds and
Payments Over.  Each
Authorized Representative on its own behalf and on behalf of each other Secured
Party of the Series of Secured Debt with respect to which it is acting in
such capacity (and each such Secured Party by its acceptance of the benefits of
the Secured Debt Documents) hereby agrees that if it shall obtain possession of
any Shared Collateral or shall realize any proceeds or payment in respect of
any such Shared Collateral pursuant to any Collateral Document or by the
exercise of any rights available to it under applicable law or in any
Insolvency Proceedings or through any other exercise of remedies or the taking
of any other Enforcement Action, then it shall hold such Shared Collateral,
proceeds or payment in trust for the other Secured Parties and promptly
transfer such Shared Collateral, proceeds or payment, as the case may be, to
the Controlling Collateral Agent, and any proceeds or payment (collectively, “Proceeds”),
shall be applied in the following order:


 


(a)           FIRST, to the fees and expenses of, and reimbursements and
indemnification owed to, the Controlling Collateral Agent under this Agreement
and under the Secured Debt Documents to which it is a party that are unpaid as
of the applicable date of receipt of such Proceeds, and to any Secured Party
which has theretofore advanced or paid any such fees and expenses of, and
reimbursements and indemnification owed to, the Controlling Collateral Agent in
an amount equal to the amount thereof so advanced or paid by such Secured
Party;


 


(b)           SECOND, to the fees and expenses of, and reimbursements and
indemnification that do not relate to the Collateral or the exercise of rights
and remedies with respect to thereto (which would be the subject of clause
FIRST above) owed to the Working Capital Facility Collateral Agent pursuant to
the Working Capital Facility Agreement;


 


(c)           THIRD to the fees and expenses of, and reimbursements and
indemnification that do not relate to the Collateral or the exercise of rights
and remedies with respect to thereto (which would be the subject of clause FIRST
above) owed to the Notes Collateral Agent pursuant to the Notes Documents and
the Pari Passu Collateral Agent pursuant to the Pari Passu Indebtedness
Documents, Equally and Ratably,


 


24
















 


(d)                                 FOURTH, to the payment in cash of the Working Capital
Facility Obligations then due and owing;


 


(e)                                  FIFTH, to the payment in cash of the Interim Notes
Obligations then due and owing and any Pari Passu Obligations then due and
owing, Equally and Ratably (after giving effect to any payments previously made
under this Section),


 


(f)                                    SIXTH, to the payment in cash of the Existing Notes
Obligations then due and owing, and


 


(g)                                 SEVENTH, to the Company and the Guarantors or their
successors or assigns, as their interests may appear, or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.


 


Section 5.
Other Agreements.


 


5.1                                 Releases.


 


(a)                                  If, in connection with the exercise of the Controlling
Collateral Agent’s remedies in respect of the Shared Collateral provided for in
Section 3.1, or, during the continuance any matured “event of
default” under the Working Capital Facility Documents, in connection with a
Disposition in lieu of foreclosure or other exercise of remedies on any of
Shared Collateral by any Obligor at the written direction, or with the
approval, of the Controlling Collateral Agent or the Controlling Collateral
Agent for itself or on behalf of any of the Controlling Secured Parties, the
Controlling Collateral Agent releases any of its Liens on any part of the
Shared Collateral, then all Liens on such Shared Collateral in favor of any
Secured Party (other than any such Liens on Proceeds, which shall continue
notwithstanding such release) shall be automatically, unconditionally and
simultaneously released, provided that the Proceeds of such Shared Collateral
are applied to repay the Obligations in accordance with Section 4.1.


 


(b)                                 If in connection with any sale, lease, exchange, transfer or
other disposition of any Shared Collateral (collectively, a “Disposition”)
permitted under the terms of each of the Working Capital Facility Documents,
the Notes Documents and the Pari Passu Indebtedness Documents (other than in
connection with the exercise of the Controlling Collateral Agent’s remedies or
any other Enforcement Action in respect of the Shared Collateral provided for
in Section 3.1), the Controlling Collateral Agent, for itself or on
behalf of any of the Controlling Secured Parties, releases its Liens on any of
the Shared Collateral, other than in connection with, or in anticipation of,
the Discharge of Working Capital Facility Obligations, then the Existing Notes
Liens, the Interim Notes Liens and the Pari Passu Liens on such Shared
Collateral shall be automatically, unconditionally and simultaneously released;
provided, that the Existing Notes Liens and Interim Notes Liens
upon the Shared Collateral securing the Notes Obligations shall not be released
if the Disposition is subject to Section 6.01 of the Interim Notes
Indenture.


 


(c)                                  If (i) the Required Working Capital Facility Lenders,
the Required Noteholders under the Notes Documents and the Required Pari Passu
Lenders under the Pari Passu Indebtedness Documents consent to a release of any
or all of the Shared Collateral, and (ii) the Company delivers an
Officers’ Certificate to the Working Capital Facility Collateral Agent,


 


25

















 


the
Notes Collateral Agent and the Pari Passu Collateral Agent certifying that all
such necessary consents have been obtained, the Working Capital Facility
Collateral Agent, for itself and for the benefit of the Working Capital
Facility Lenders, the Notes Collateral Agent, for itself and for the benefit of
the Noteholders, and the Pari Passu Collateral Agent, for itself and for the
benefit of the Pari Passu Lenders, shall unconditionally and simultaneously
release their Liens on such Shared Collateral.


 


(d)                                 If the guarantee of the Notes Indebtedness by a Guarantor is
released in accordance with the Notes Documents, the Liens on the Shared
Collateral securing such guarantee of such Guarantor shall be automatically,
unconditionally and simultaneously released.


 


(e)                                  If the guarantee of the Working Capital Facility
Indebtedness by a Guarantor is released in accordance with the Working Capital
Facility Documents, the Working Capital Facility Liens on the Shared Collateral
of such Guarantor shall be automatically, unconditionally and simultaneously
released.


 


(f)                                    If the guarantee of the Pari Passu Indebtedness by a
Guarantor is released in accordance with the Pari Passu Indebtedness Documents,
the Pari Passu Liens on the Shared Collateral of such Guarantor shall be
automatically, unconditionally and simultaneously released.


 


provided, that,
in each case, the Controlling Collateral Agent and each Trustee have received
all documentation, if any, that may be required by the Trust Indenture Act in
connection therewith.  In connection with
any release of Collateral as provided for above, the Controlling Collateral
Agent will promptly execute any release documentation with respect thereto
reasonably requested by the Company.


 


(g)                                 Each of the Authorized Representatives hereby irrevocably
constitutes and appoints the Controlling Collateral Agent and any officer or
agent of the Controlling Collateral Agent, with full power of substitution, as
its true and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of such Authorized Representative, or in the Controlling
Collateral Agent’s name, from time to time in the Controlling Collateral
Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Section 5.1, including, without limitation, any financing
statement amendments, endorsements or other instruments or transfer or
release.  This power is coupled with an
interest and shall be irrevocable.


 


5.2                                 Insurance.  The Controlling Collateral Agent shall have
the sole and exclusive right, subject to the rights of the Company under the
relevant Collateral Documents, to adjust settlement for any insurance policy
covering any Shared Collateral in the event of any loss thereunder and to
approve any award granted in any condemnation or similar proceeding affecting
any Shared Collateral.  All proceeds of
any such policy and any such award shall be paid to the Controlling Collateral
Agent for distribution in accordance with Section 4.1.  If any Secured Party shall, at any time,
receive any proceeds of any such insurance policy or any such award in
contravention of this Agreement, it shall pay such proceeds over to the
Controlling Collateral Agent in accordance with the terms of Section 4.1.


 


26

















 


5.3                                 Amendments to Documents
The Working Capital Facility Documents, the Existing Notes Documents, the
Interim Notes Documents and the Pari Passu Indebtedness Documents may be
amended, supplemented or otherwise modified in accordance with their terms and
the Working Capital Facility Indebtedness, the Existing Notes Indebtedness, the
Interim Notes Indebtedness and the Pari Passu Indebtedness may be refinanced, in
each case, without notice to, or the consent of any of the parties hereto, all
without affecting the lien subordination or other provisions of this Agreement;
provided, that the holders of such refinancing debt bind
themselves in a writing addressed to each of the parties hereto to the terms of
this Agreement, and provided, that no such amendment, supplement,
modification or refinancing shall result in the Working Capital Facility
Indebtedness exceeding, or being permitted to exceed, the Working Capital Facility
Debt Cap.


 


(b)                                 The Company and the Existing Notes Collateral Agent agree
that each Existing Notes Collateral Document shall include the following
caption (appropriately modified to conform to definitions applicable thereto):


 


“THIS [AGREEMENT][INDENTURE] AND THE RIGHTS OF THE PARTIES HEREUNDER
ARE SUBJECT TO THE PROVISIONS OF THE OMNIBUS INTERCREDITOR AGREEMENT DATED AS
OF DECEMBER 7, 2009, BETWEEN
[                      ]
AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE [COMPANY AND
THE GUARANTORS][COMPANY AND THE OTHER [GRANTORS][OBLIGORS]], AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS
THEREOF.”


 


(c)                                  The Company, the Notes Collateral Agent and the Pari Passu
Collateral Agent each agrees that each Notes Collateral Document and Pari Passu
Collateral Document shall include the following caption (appropriately modified
to conform to definitions applicable thereto):


 


“THIS [AGREEMENT][INDENTURE] AND THE RIGHTS OF THE PARTIES HEREUNDER
ARE SUBJECT TO THE PROVISIONS OF THE OMNIBUS INTERCREDITOR AGREEMENT DATED AS
OF DECEMBER 7, 2009, BETWEEN
[                      ]
AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE [COMPANY AND
THE GUARANTORS][COMPANY AND THE OTHER [GRANTORS][OBLIGORS]], AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS
THEREOF.”


 


provided, however,
that if the jurisdiction in which any such Notes Collateral Document or Pari
Passu Collateral Document will be filed prohibits the inclusion of the language
in clause (b) or (c) above or would prevent a document containing
such language from being recorded, the Working Capital Facility Collateral
Agent, the Notes Collateral Agent and, if applicable, the Pari Passu Collateral
Agent, agree, prior to such Notes Collateral Document or Pari Passu Collateral
Document being entered into, to negotiate in good faith replacement language
stating that the Liens granted under such Notes Collateral Document or Pari
Passu Collateral Document is subject to the provisions of this Agreement.


 


27

















 


(d)                                 The Company, the Notes Collateral Agent and the Pari Passu
Collateral Agent each agrees that each indenture or other primary debt document
governing the Notes Indebtedness and Pari Passu Indebtedness shall include the
following language (appropriately modified to conform to definitions applicable
thereto):


 


“The [Lenders][Holders][other applicable term], [by their acceptance of
the [Notes]][by their execution and delivery hereof], hereby irrevocably
authorize and direct the [Agent][Trustee][other applicable term]  to enter into the Omnibus Intercreditor
Agreement [as defined herein] on behalf of the [Agent][Trustee][other applicable
term] and the  [Lenders][Holders][other
applicable term], and agree to be bound by the provisions thereof as if they
were direct signatories thereof, and to take all actions required to be taken
by them in accordance with the provisions thereof, and to otherwise comply
therewith, and irrevocably authorize and direct the [Agent][Trustee][other
applicable term] to take all actions on its or the [Lenders’][Holders’][other
applicable term] behalf as are necessary to comply with the provisions thereof.  The rights and
remedies of the [Agent][Trustee][other applicable term], on behalf of the
[Lenders][Holders][other applicable term], under this [Agreement][Indenture]
shall be subject to the Omnibus Intercreditor Agreement as in effect from time
to time.  In the event of any conflict
between the terms of the Omnibus Intercreditor Agreement and this
[Agreement][Indenture], the terms of the Omnibus Intercreditor Agreement shall
govern and control.”


 


5.4                                 Rights as
Unsecured Creditors.  Except as
otherwise expressly prohibited in this Agreement, each Junior Secured Party may
exercise rights and remedies as an unsecured creditor against any Obligor in
accordance with the terms of the Notes Documents or Pari Passu Indebtedness
Documents, as applicable, and applicable law. 
For the avoidance of doubt, nothing in this Agreement shall prohibit the
receipt by a Junior Secured Party of the required payments of interest on and
principal of the Notes or Pari Passu Obligations, as applicable, so long as
such receipt is not the direct or indirect result of the taking by the Notes
Collateral Agent or any Noteholder, on the one hand, or the Pari Passu
Collateral Agent or any Pari Passu Lender, on the other hand, of any
Enforcement Action in respect of any Lien held by any of them in contravention
of this Agreement.  In the event that a
Junior Secured Party becomes a judgment lien creditor in respect of any Shared
Collateral as a result of its enforcement of its rights as an unsecured
creditor, the judgment lien held by such Junior Secured Party shall be deemed
part of the Obligations held by such Junior Secured Party and shall be
subordinated to the Liens securing the other Obligations held by the other
Junior Secured Parties to the extent provided in this Agreement.


 


5.5                                 Bailee for Perfection
The Controlling Collateral Agent agrees to hold all of the Shared Collateral in
its possession or control (or in the possession or control of its agents or
bailees) as agent for perfection and bailee for the benefit of and on behalf of
the Working Capital Facility Collateral Agent, the Notes Collateral Agent and
the Pari Passu Collateral Agent solely for the purpose of perfecting the
security interest granted in such Shared Collateral pursuant to the Working
Capital Facility Collateral Documents, Notes Collateral Documents and the Pari
Passu Collateral Documents (such provision being intended, among other things,
to satisfy the


 


28

















 


requirements
of Sections 8-301(a)(2) and 9-313(c) of the UCC),
subject to the terms and conditions of this Section 5.5.


 


(b)                                 The Controlling Collateral Agent shall not have any
obligation whatsoever to any Junior Secured Party to assure that the Shared
Collateral in the Controlling Collateral Agent’s possession or control is
genuine or owned by any Obligor or to preserve rights or benefits of any Person
except as expressly set forth in this Section 5.5.  The duties or responsibilities of the
Controlling Collateral Agent under this Section 5.5 shall be
limited solely to holding the Shared Collateral in its possession or control as
agent for perfection and bailee for the Existing Notes Collateral Agent and the
Interim Notes Collateral Agent and the Pari Passu Collateral Agent, as
applicable, for purposes of perfecting the Lien held by the Existing Notes
Collateral Agent and  the Interim Notes
Collateral Agent and the Pari Passu Collateral Agent, as applicable, and to
using the same degree of care with respect to such Shared Collateral as the
Controlling Collateral Agent uses for similar property pledged to it as collateral
for indebtedness generally.  The
Controlling Collateral Agent shall not be liable to any Junior Secured Party
for any action taken or omitted by it hereunder or in connection herewith,
except to the extent of the Controlling Collateral Agent’s own gross negligence
or willful misconduct as determined by a final non-appealable order of a court
of competent jurisdiction.


 


(c)                                  The Controlling Collateral Agent shall not have, by reason
of any document, a fiduciary relationship in respect of any Junior Secured
Party.


 


(d)                                 If (i) the Controlling Collateral Agent is the Working
Capital Facility Collateral Agent, and if any Notes Obligations remain
outstanding upon the Discharge of Working Capital Facility Obligations, the
Working Capital Facility Collateral Agent shall deliver to the Primary Notes
Collateral Agent as successor Controlling Collateral Agent the Shared
Collateral in its possession or control (or in the possession or control of its
agents or bailees) together with any necessary or reasonably requested
endorsements (or otherwise allow the Primary Notes Collateral Agent to obtain
control of such Shared Collateral), or as a court of competent jurisdiction may
otherwise direct, or (ii) the Controlling Collateral Agent is the Primary
Notes Collateral Agent, and if any Pari Passu Indebtedness remains outstanding
upon the Discharge of Interim Notes Obligations, the Primary Notes Collateral
Agent shall deliver to Pari Passu Collateral Agent the Shared Collateral in its
possession or control (or in the possession or control of its agents or
bailees) together with any necessary or reasonably requested endorsements (or
otherwise allow the Pari Passu Collateral Agent to obtain control of such
Shared Collateral), or as a court of competent jurisdiction may otherwise
direct.  The successor Controlling
Collateral Agent agrees to hold any Shared Collateral so received from the
former Controlling Collateral Agent in its possession or control as bailee for
the remaining Authorized Representatives, and to use the same degree of care
with respect to such Shared Collateral as the successor Controlling Collateral
Agent uses for similar property pledged to it as collateral for indebtedness
generally.


 


5.6                                 Purchase Option.


 


(a)                                  Upon the occurrence and during the continuance of an Event
of Default or an event of default under the Working Capital Facility Documents
that is not cured or waived within thirty (30) days, the Interim Notes
Collateral Agent on behalf of the Interim Notes


 


29

















 


Noteholders,
and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after
written demand by the Trustee or the Interim Notes Collateral Agent, on the one
hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company
for the accelerated payment of all Interim Notes Obligations or Pari Passu
Obligations, as applicable, shall have the option at any time upon five (5) Business
Days’ prior written notice to the Working Capital Facility Collateral Agent to
elect to purchase a portion of the Working Capital Facility Indebtedness from
the Working Capital Facility Lenders, ratably in proportion to the outstanding
Obligations of each outstanding Series of Secured Debt (in each case, the
“Purchasable Portion”).  Such
notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or
Pari Passu Collateral Agent, as applicable, to the Working Capital Facility
Collateral Agent shall be irrevocable; provided, that the Interim
Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall
have the right within ten (10) days following receipt of the information
required to be delivered pursuant to clauses (a) and (b) of the
definition of “Qualified Indemnification Claim” to revoke such election to
purchase such portion of the Working Capital Facility Indebtedness; provided,
further, that such revocation is in writing duly signed by the Interim Notes
Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received
by the Working Capital Facility Collateral Agent prior to the expiration of
such ten-day period.  Neither the
Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have
any rights under this Section 5.6.


 


(b)                                 On the date specified by the Interim Notes Collateral Agent
or Pari Passu Collateral Agent in its respective Exercise Notice (which shall
not be less than five (5) Business Days, nor more than the later of (i) thirty
(30) days after the receipt by the Working Capital Facility Collateral Agent of
the Exercise Notice, and (ii) ten (10) days after receipt by the
Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable,
of the information required to be delivered pursuant to clauses (a) and (b) of
the definition of “Qualified Indemnification Claim” (the later of such dates,
the “Outside Closing Date”)), the Working Capital Facility Collateral
Agent and Working Capital Facility Lenders shall sell to the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the
Working Capital Facility Collateral Agent and Working Capital Facility Lenders,
the respective Purchasable Portion; provided, that (A) the
Working Capital Facility Collateral Agent and Working Capital Facility Lenders
shall retain all rights to be indemnified or held harmless by any Obligor in
accordance with the terms of the Working Capital Facility Documents as to
actions or events that occurred or did not occur prior to the closing of the of
the sale of the Working Capital Facility Indebtedness to the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain
any rights to the security therefor, and (B) nothing contained in clause (A) above
shall restrict or limit the indemnification rights of any Trustee, the Interim
Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu
Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital
Facility Documents assumed as a result of the purchase of the Working Capital
Facility Indebtedness.  The Working
Capital Facility Collateral Agent hereby represents and warrants that, as of
the date it becomes a party to this Agreement, no approval of any court or other
regulatory or governmental authority is required for such sale.


 


(c)                                  Upon the date of such purchase and sale, the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay
to the Working Capital Facility Collateral Agent, for the benefit of Working Capital
Facility Lenders, as the purchase price therefore, the full amount of the
respective Purchasable Portion of all the Working Capital


 


30

















 


Facility
Indebtedness then outstanding and unpaid (including principal, interest, fees
and expenses, including reasonable attorneys’ fees and legal expenses but
excluding any early termination fee or prepayment penalty or premium payable
pursuant to the Working Capital Facility Agreement or any other Working Capital
Facility Document), (ii) furnish cash collateral to the Working Capital
Facility Collateral Agent in such amounts as the Working Capital Facility
Collateral Agent determines is reasonably necessary to secure the Working
Capital Facility Collateral Agent and Working Capital Facility Lenders in
connection with any issued and outstanding letters of credit provided by the
Working Capital Facility Collateral Agent or Working Capital Facility Lenders
(or letters of credit that the Working Capital Facility Collateral Agent has
arranged to be provided by third parties pursuant to the financing arrangements
under the Working Capital Facility Documents of the Working Capital Facility
Collateral Agent and Working Capital Facility Lenders with the Company or any
Obligor) to the Company or any Obligor (but not in any event in an amount
greater than 110% of the aggregate undrawn face amount of such letters of
credit), (iii) agree to reimburse the Working Capital Facility Collateral
Agent and Working Capital Facility Lenders for any checks or other payments
provisionally credited to the Working Capital Facility Indebtedness, and/or as
to which the Working Capital Facility Collateral Agent or Working Capital
Facility Lenders has not yet received final payment and (iv) agree to reimburse
the Working Capital Facility Collateral Agent and Working Capital Facility
Lenders in respect of Qualified Indemnification Claims which in fact result in
any loss, cost, damage or expense (including reasonable attorneys’ fees and
legal expenses) to the Working Capital Facility Collateral Agent and Working
Capital Facility Lenders; provided, that (A) in no event
will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the
one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other
other hand, have any liability for such amounts in excess of the cash proceeds
of Shared Collateral received by the Interim Notes Collateral Agent or the Pari
Passu Collateral Agent, as applicable, net of (1) the reasonable costs of
collection (including reasonable attorneys’ fees and legal expenses) incurred
by or on behalf of the Working Capital Facility Collateral Agent or the Working
Capital Facility Lenders in respect of such Shared Collateral and (2) any
amounts that are required to be turned over to the Working Capital Facility
Collateral Agent or the Working Capital Facility Lenders under this Agreement,
including pursuant to Section 6.6, (B) in no event shall the
Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one
hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other
hand, have any such liability for or in respect of any indemnification claims
(other than the Qualified Indemnification Claims), (C) in no event shall
the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any
such liability for any such losses, costs, damages or expenses to the extent
caused by or resulting from the gross negligence or willful misconduct of the
Working Capital Facility Collateral Agent, as determined by a final
non-appealable order of a court of competent jurisdiction, and (D) any
amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu
Collateral Agent pursuant to this clause (c)(iv) shall constitute Working
Capital Facility Obligations.  Such
purchase price and cash collateral shall be remitted by wire transfer in
federal funds to such bank account of the Working Capital Facility Collateral
Agent in New York, New York, as the Working Capital Facility Collateral Agent
may designate in writing to the Interim Notes Collateral Agent and Pari Passu
Collateral Agent for such purpose not less than three (3) Business Days
prior to the date on which such amounts are to be so remitted.  Interest shall be calculated to but excluding
the Business Day on which such purchase and sale shall occur if the amounts so
paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral
Agent, as applicable, to the bank account


 


31

















 


designated
by the Working Capital Facility Collateral Agent are received in such bank
account prior to 1:00 p.m. (New York City time) and interest shall be
calculated to and including such Business Day if the amounts so paid by the
Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as
applicable, to the bank account designated by the Working Capital Facility
Collateral Agent are received in such bank account later than 1:00 p.m.
(New York City time).


 


(d)                                 Such purchase shall be expressly made without representation
or warranty of any kind by the Working Capital Facility Collateral Agent and
Working Capital Facility Lenders as to the Working Capital Facility
Indebtedness or otherwise and without recourse to the Working Capital Facility
Collateral Agent or Working Capital Facility Lenders, except that the Working
Capital Facility Collateral Agent and Working Capital Facility Lenders shall
represent and warrant: (i) the amount of the Working Capital Facility
Indebtedness being purchased, (ii) that the Working Capital Facility
Collateral Agent and Working Capital Facility Lenders own the Working Capital
Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the
Working Capital Facility Collateral Agent and Working Capital Facility Lenders
have the right to assign the Working Capital Facility Indebtedness and the
assignment is duly authorized.


 


(e)                                  The Working Capital Facility Collateral Agent agrees that it
shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent
five (5) Business Days prior written notice of its intention to commence
the exercise of any enforcement right or remedy against the Shared
Collateral.  In the event that during
such five Business Day period, the Interim Notes Collateral Agent and the Pari
Passu Collateral Agent shall send to the Working Capital Facility Collateral
Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the
Pari Passu Collateral Agent’s intention to exercise the purchase option given
by the Working Capital Facility Collateral Agent to the Interim Notes
Collateral Agent and Pari Passu Collateral Agent under this Section 5.6,
the Working Capital Facility Collateral Agent shall not commence any
foreclosure or other action to sell or otherwise realize upon the Shared
Collateral or immediately desist from taking any further action; provided,
that the purchase and sale with respect to the Working Capital Facility
Indebtedness provided for herein shall have closed by the Outside Closing Date
and the Working Capital Facility Collateral Agent shall have received payment
in full of the Working Capital Facility Indebtedness as provided for herein on
or before the Outside Closing Date. 
Nothing contained in this Section 5.6(e) shall restrict
or prohibit the Working Capital Facility Collateral Agent from taking action to
the extent that the Working Capital Facility Collateral Agent, in its good
faith judgment, deems such action to be necessary to preserve or protect the
Shared Collateral.


 


5.7                                 Escrow.  In connection with the issuance of any Series of
Secured Debt, any Obligor may enter into an escrow agreement (each, an “Escrow
Agreement”) with an escrow agent (each, an “Escrow Agent”), which
may be the Primary Notes Collateral Agent, the Working Capital Facility Collateral
Agent or any Pari Passu Collateral Agent pursuant to which such Obligor may
deposit with such Escrow Agent, from the proceeds of such Series of
Secured Debt, an amount equal to that amount of interest payments on the Series of
Secured Debt specified in the applicable Working Capital Facility Security
Document, Notes Collateral Document or Pari Passu Collateral Document (the “Escrowed
Interest”) and may grant a security interest to the applicable Escrow Agent
in such Escrowed Interest to secure all Obligations under such Series of
Secured Debt.  Notwithstanding anything
to the contrary set forth in this Agreement, the Escrowed Interest (and any
earnings thereon) for a Series of Secured Debt shall


 


32

















 


not
secure any Series of Secured Debt other than the Obligations under the Series of
Secured Debt to which it is pledged and shall be applied to payment of the Series of
Secured Debt it secures in accordance with the terms of the respective Escrow
Agreement and the other Working Capital Facility Documents, Notes Documents or
Pari Passu Indebtedness Documents, as applicable.


 


5.8                                 Collateral
Shared Equally and Ratably Among Senior Subordinated Secured Parties.  Unless otherwise agreed in writing by the
Interim Notes Collateral Agent, the Working Capital Facility Collateral Agent
and the Pari Passu Collateral Agent, the Secured Parties hereby agree that the
payment and satisfaction of all of the Senior Indebtedness will be secured
Equally and Ratably by the security interests in the Shared Collateral
established in favor of the Interim Notes Collateral Agent (for itself and for
the benefit of the Interim Notes Noteholders) and the Pari Passu Collateral
Agent (for itself and for the benefit of the Pari Passu Lenders).  It is understood and agreed that nothing in
this Section 5.8 is intended to alter the priorities among the
Secured Parties and the Working Capital Facility Collateral Agent and Working
Capital Facility Lenders as provided in Section 2 hereof.


 


5.9                                 Voting.  Following the Discharge of Working Capital
Facility Obligations, in connection with any decision by the Senior
Subordinated Secured Parties under this Agreement, the votes of each Series of
Senior Subordinated Secured Debt entitled to vote thereon shall be cast in the
manner provided by, and in accordance with the decision of the holders of such Series of
Senior Subordinated Secured Debt made pursuant to the terms of the
corresponding Secured Debt Documents.


 


5.10                           Intercreditor
Decisions.


 


(a)                                  No amendment or supplement to any Notes Documents or Pari
Passu Indebtedness Document that changes the date, amount or method of
calculation of the payment of principal of, or interest or premium (if any) on
the Notes Indebtedness or the Pari Passu Indebtedness, in an a way that
adversely affects the rights of any holder of Notes Indebtedness or the Pari
Passu Indebtedness, will become effective without the consent of the Interim
Notes Collateral Agent and Pari Passu Collateral Agent.


 


(b)                                 The Interim Notes Collateral Agent and the Interim Notes
Noteholders, on the one hand, and the Pari Passu Collateral Agent and the Pari
Passu Lenders, on the other hand, may, at any time and from time to time,
without the consent of or notice to any Junior Secured Party and without impairing
or releasing the obligations of any person under this Agreement, (i) amend
any agreement related solely to such Series of Secured Debt in accordance
with the terms thereof, (ii) release anyone liable in any manner under or
in respect of the obligations owing in connection with such Series of
Secured Debt (but only in respect of such obligations), and (iii) waive
any provisions of any agreement related solely to such Series of Secured
Debt.


 


Section 6. Insolvency
Proceedings.


 


6.1                                 Insolvency
Proceedings Generally.  This
Agreement shall be applicable both before and after the filing of any petition
by or against any Obligor under the Bankruptcy Code or the commencement of any
other Insolvency Proceedings and all converted or succeeding


 


33

















 


cases
in respect thereof, and all references herein to any Obligor shall be deemed to
apply to the trustee for any Obligor and any Obligor as
debtor-in-possession.  The relative
rights of the Working Capital Facility Collateral Agent, the Interim Notes
Collateral Agent, the Pari Passu Collateral Agent and the Existing Notes
Collateral Agent in or to any distributions from or in respect of any Shared
Collateral or proceeds of Collateral shall continue after the filing of such
petition on the same basis as prior to the date of the petition, subject to any
court order approving the financing of, or use of cash collateral by, any
Obligor as debtor-in-possession.  This
Agreement shall constitute a “subordination agreement” for the purposes of Section 510(a) of
the Bankruptcy Code and shall be enforceable in any Insolvency Proceeding in
accordance with its terms.


 


6.2                                 Financing Issues  From the incurrence of the Working Capital
Facility Obligations until the Discharge of Working Capital Facility
Obligations, if any Obligor shall be subject to any Insolvency Proceeding and
the Working Capital Facility Collateral Agent or any Working Capital Facility
Lender shall desire (i) to permit the use of “Cash Collateral” (as such
term is defined in Section 363(a) of the Bankruptcy Code)
constituting Shared Collateral or (ii) to permit any Obligor to obtain
financing under Section 364 of the Bankruptcy Code (“DIP
Financing”), then the Notes Collateral Agent, on behalf of itself and the
Noteholders, and the Pari Passu Collateral Agent, on behalf of the Pari Passu
Lenders, will raise no objection to such Cash Collateral use or DIP Financing
(provided that such DIP Financing is on terms and conditions no less favorable
to the Company and its subsidiaries than any other debtor in possession
financing available to the Company in the market) and to the extent the Liens
securing the Working Capital Facility Obligations (subject to the principal
amount thereof not exceeding the Working Capital Facility Debt Cap) are
subordinated to or pari passu with such DIP Financing, the Notes Collateral
Agent and the Pari Passu Collateral Agent will subordinate their respective
Liens on the Shared Collateral to the Liens securing such DIP Financing (and
all obligations relating thereto) in the same priorities and to the same extent
as provided herein with respect to the Working Capital Facility and will not
request adequate protection or any other relief in connection therewith
(except, as expressly agreed by the Working Capital Facility Collateral Agent
or to the extent permitted by this Section 6.2 or by Section 6.4(b));
provided, that (i) the aggregate principal amount of the DIP
Financing plus the aggregate outstanding principal amount of Working Capital
Facility Indebtedness plus the aggregate face amount of any letters of credit
issued and not reimbursed under the Working Capital Facility Agreement does not
exceed the Working Capital Facility Debt Cap and (ii) the Notes Collateral
Agent and the Noteholders, and the Pari Passu Collateral Agent and the Pari
Passu Lenders, retain the right to object to any ancillary agreements or
arrangements regarding Cash Collateral use or the DIP Financing that are
materially prejudicial to their interests.


 


(b)                                 From the incurrence of the Interim Notes Obligations until
the Discharge of Interim Notes Obligations, if any Obligor shall be subject to
any Insolvency Proceeding and the Interim Notes Collateral Agent or any Interim
Notes Noteholder shall desire (i) to permit the use of “Cash Collateral”
(as such term is defined in Section 363(a) of the Bankruptcy
Code) constituting Shared Collateral or (ii) to permit any Obligor to
obtain DIP Financing, then the Existing Notes Collateral Agent, on behalf of
itself and the Existing Notes Noteholders, and the Pari Passu Collateral Agent,
on behalf of the Pari Passu Lenders, will raise no objection to such Cash
Collateral use or DIP Financing and to the extent the Liens securing the
Interim Notes Obligations are subordinated to or pari passu with such DIP
Financing, the Existing Notes


 


34

















 


Collateral
Agent and the Pari Passu Collateral Agent will subordinate their respective
Liens on the Shared Collateral to the Liens securing such DIP Financing (and
all obligations relating thereto) and will not request adequate protection or
any other relief in connection therewith (except, as expressly agreed by the
Interim Notes Collateral Agent or to the extent permitted by this Section 6.2
or by Section 6.4(b).


 


6.3                                 Relief from the
Automatic Stay. Each of the Notes Collateral Agent (on behalf of
itself and the Noteholders) and the Pari Passu Collateral Agent (on behalf of
the Pari Passu Lenders) agree that, from the incurrence of the Working Capital
Facility Obligations until the Discharge of Working Capital Facility
Obligations, none of them shall seek relief from the automatic stay or any
other stay in any Insolvency Proceeding in respect of the Shared Collateral,
without the prior written consent of the Working Capital Facility Collateral
Agent and the Required Working Capital Facility Lenders.  Until the Discharge of Interim Notes
Obligations, each of the Existing Notes Collateral Agent (on behalf of itself
and the Existing Notes Noteholders) and the Pari Passu Collateral Agent (on
behalf of the Pari Passu Lenders) agree that none of them shall seek relief
from the automatic stay or any other stay in any Insolvency Proceeding in
respect of the Shared Collateral, without the prior written consent of the Required
Noteholders under the Interim Notes Indenture and the Required Working Capital
Facility Lenders.


 


6.4                                 Adequate Protection  Subject to Section 6.2, each of
the Notes Collateral Agent (on behalf of itself and the Noteholders) and the
Pari Passu Collateral Agent (on behalf of the Pari Passu Lenders), agree that
none of them shall contest (or support any other Person contesting):


 


(i)                                     any request by
the Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders for adequate protection; or


 


(ii)                                  any objection
by the Working Capital Facility Collateral Agent or the Working Capital
Facility Lenders to any motion, relief, action or proceeding based on the
Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders claiming a lack of adequate protection.


 


Subject
to Section 6.2, each of the Existing Notes Collateral Agent (on
behalf of itself and the Existing Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of the Pari Passu Lenders), agree that none of them
shall contest (or support any other Person contesting):


 


(iii)                               any request by
the Interim Notes Collateral Agent or the Interim Notes Noteholders for
adequate protection; or


 


(iv)                              any objection
by the Interim Notes Collateral Agent or the Interim Notes Noteholders to any
motion, relief, action or proceeding based on the Interim Notes Collateral
Agent or the Interim Notes Noteholders claiming a lack of adequate protection.


 


(b)                                 Notwithstanding the foregoing provisions in this Section 6.4,
in any Insolvency Proceeding:


 


35
















 


(i)                                     if the Working
Capital Facility Collateral Agent or the Working Capital Facility Lenders (or
any subset thereof) are granted adequate protection in the form of additional
collateral in connection with any Cash Collateral use or DIP Financing, then
the Interim Notes Collateral Agent (on behalf of itself or any of the Interim
Notes Noteholders) and the Pari Passu Collateral Agent (on behalf of itself or
any of the Pari Passu Lenders) may seek or request adequate protection in the
form of a Lien on such additional collateral, which Lien will be subordinated
to the Liens securing the Working Capital Facility Obligations (subject to the
principal amount thereof not exceeding the Working Capital Facility Debt Cap)
and such Cash Collateral use or DIP Financing (and all obligations relating
thereto) on the same basis as the other Interim Note Liens or Pari Passu Liens,
as applicable, are so subordinated to the Working Capital Facility Obligations
(subject to the principal amount thereof not exceeding the Working Capital
Facility Debt Cap) under this Agreement; and


 


(ii)                                  in the event
the Interim Notes Collateral Agent (on behalf of itself or any of the Interim
Notes Noteholders) or the Pari Passu Collateral Agent (on behalf of itself or
any of the Pari Passu Lenders) seeks or requests adequate protection in respect
of any Interim Notes Obligations or Pari Passu Obligations, as applicable, and
such adequate protection is granted in the form of additional collateral, then
the Interim Notes Collateral Agent (on behalf of itself or any of the Interim
Notes Noteholders) or the Pari Passu Collateral Agent (on behalf of itself or
any of the Pari Passu Lenders), as applicable, agrees that the Working Capital
Facility Collateral Agent (if Working Capital Facility Obligations are then
outstanding) shall also be granted a senior Lien on such additional collateral
as security for the Working Capital Facility Obligations (subject to the
principal amount thereof not exceeding the Working Capital Facility Debt Cap)
and for any Cash Collateral use or DIP Financing provided by the Working
Capital Facility Lenders and that any Note Lien on such additional collateral
shall be subordinated to the Lien on such collateral securing the Working
Capital Facility Obligations (subject to the principal amount thereof not
exceeding the Working Capital Facility Debt Cap) and any such DIP Financing
provided by the Working Capital Facility Lenders (and all obligations relating
thereto) and to any other Liens granted to the Working Capital Facility Lenders
as adequate protection on the same basis as the other Note Liens or other Pari
Passu Liens, as applicable, are so subordinated to such Working Capital
Facility Obligations (subject to the principal amount thereof not exceeding the
Working Capital Facility Debt Cap) under this Agreement.  Except as otherwise expressly set forth in Section 6.2
or Section 6.8 or in connection with the exercise of remedies with
respect to the Shared Collateral, nothing herein shall limit the rights of any
Junior Secured Party (other than the Existing Notes Collateral Agent and the
Existing Notes Noteholders) from seeking adequate protection with respect to
their rights in the Shared Collateral in any Insolvency Proceeding (including
adequate protection in the form of a cash payment, periodic cash payments or
otherwise) and the Working Capital Facility Collateral Agent and the Working
Capital Facility Lenders agree that none of them will contest (or support any
other person contesting) any such request for adequate protection that complies
with and seeks relief not prohibited by the provisions of this Section 6.  Until the Discharge of Working Capital
Facility Obligations and the Discharge of Interim Notes Obligations, none of
the Existing Notes Collateral Agent and the Existing Notes Noteholders or their
Authorized Representatives shall seek or obtain or permit to be granted
adequate protection with respect to their rights in the Shared Collateral in
any Insolvency Proceeding (including adequate protection in the form of a lien
on additional collateral, cash payment, periodic cash payments or otherwise).


 


36

















 


6.5                                 No Waiver.  Subject to Sections 3.1(a), (e) and
Section 6.4(b)(ii), nothing contained herein shall prohibit or in any
way limit the Working Capital Facility Collateral Agent or any Working Capital
Facility Lender from objecting in any Insolvency Proceeding or otherwise to any
action taken by any Junior Secured Party, including, without limitation, action
by a Junior Secured Party seeking adequate protection with respect to its
rights in the Shared Collateral in any Insolvency Proceeding (including
adequate protection in the form of a cash payment, periodic cash payments or
otherwise) or asserting any of its rights and remedies under the Notes
Documents or Pari Passu Indebtedness Documents, as applicable, or
otherwise.  Subject to Sections 3.1(a),
(e) and Section 6.4(b)(ii), nothing contained herein
shall prohibit or in any way limit the Interim Notes Collateral Agent or any
Interim Notes Noteholder from objecting in any Insolvency Proceeding or
otherwise to any action taken by any Junior Secured Party, including, without
limitation, action by a Junior Secured Party seeking adequate protection with
respect to its rights in the Shared Collateral in any Insolvency Proceeding
(including adequate protection in the form of a cash payment, periodic cash
payments or otherwise) or asserting any of its rights and remedies under the
Notes Documents or Pari Passu Indebtedness Documents, as applicable, or
otherwise.


 


6.6                                 Avoidance
Recoveries.  If the
Working Capital Facility Collateral Agent or any Working Capital Facility
Lender; or Notes Collateral Agent or any Noteholder; or Pari Passu Collateral
Agent or any Pari Passu Lender is required in any Insolvency Proceeding or
otherwise to turn over or otherwise pay to the estate of any Obligor any amount
(a “Recovery”), then the relevant Working Capital Facility Indebtedness,
Notes Indebtedness, or Pari Passu Indebtedness shall be reinstated from and
after the Notice Delivery Date to the extent of such Recovery and the Working
Capital Facility Collateral Agent or any Working Capital Facility Lender, or
Notes Collateral Agent or any Noteholder, or Pari Passu Collateral Agent or any
Pari Passu Lender shall be entitled to all of the rights and remedies with
respect to such Recovery under the Working Capital Facility Documents, relevant
Notes Documents, Pari Passu Indebtedness Documents or otherwise that it would
have had if it had not received the payment that formed the basis for such
Recovery.  If this Agreement shall have
been terminated prior to such Recovery, this Agreement shall be reinstated in
full force and effect from and after the date (the “Notice Delivery Date”)
on which the Working Capital Facility Collateral Agent or any Working Capital
Facility Lender, or Notes Collateral Agent or any Noteholder, or Pari Passu
Collateral Agent or any Pari Passu Lender delivers a written notice to the
Notes Collateral Agent and the Pari Passu Collateral Agent or Working Capital
Facility Collateral Agent, as the case may be, advising the Notes Collateral
Agent and the Pari Passu Collateral Agent or the Working Capital Facility
Collateral Agent, as the case may be, of such Recovery, and such prior termination
shall not diminish, release, discharge, impair or otherwise affect the
obligations of the parties hereto from and after the Notice Delivery Date.


 


6.7                                 Reorganization
Securities.  If, in any
Insolvency Proceeding, debt obligations of the reorganized debtor secured by
Liens upon any assets of the reorganized debtor are distributed pursuant to a
plan of reorganization or similar dispositive restructuring plan, on account of
the Working Capital Facility Obligations, the Notes Obligations and the Pari Passu
Obligations, then, to the extent the debt obligations distributed on account of
the Working Capital Facility Obligations (subject to the principal amount
thereof not exceeding the Working Capital Facility


 


37

















 


Debt
Cap), the Notes Obligations and the Pari Passu Obligations are secured by Liens
on the same assets, the provisions of this Agreement will survive the
distribution of such debt obligations pursuant to such plan and will apply with
like effect to the Liens securing such debt obligations.  If, in any Insolvency Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any assets of the
reorganized debtor are distributed pursuant to a plan of reorganization or
similar dispositive restructuring plan, on account of the Interim Notes
Obligations, the Existing Notes Obligations and the Pari Passu Obligations,
then, to the extent the debt obligations distributed on account of the Interim
Notes Obligations, the Existing Notes Obligations and the Pari Passu
Obligations are secured by Liens on the same assets, the provisions of this
Agreement will survive the distribution of such debt obligations pursuant to
such plan and will apply with like effect to the Liens securing such debt
obligations.  Notwithstanding the
foregoing, if any Existing Notes Noteholder shall receive in respect of their
Lien on any Shared Collateral any debt or equity securities that are issued by
a reorganized debtor pursuant to a plan of reorganization or similar dispositive
restructuring plan in connection with an Insolvency Proceeding, then unless
such distribution is made under a plan that is consented to by the affirmative
vote of the class composed of the secured claims of Interim Notes Noteholders,
all such debt or equity securities so received shall be paid or delivered
directly to the Controlling Collateral Agent (to be held and/or applied by the
Controlling Collateral Agent in accordance with the terms of Section 4.1
hereof).


 


6.8                                 Asset Sales in
Bankruptcy.  Each of the
Notes Collateral Agent (for itself and each of the Noteholders) and the Pari
Passu Collateral Agent (for itself and each of the Pari Passu Lenders) agree
that none of them shall object to or oppose a sale or other disposition of any
Collateral free and clear of security interests, liens or other claims under Section 363
of the Bankruptcy Code if Working Capital Facility Indebtedness is outstanding
and the Working Capital Facility Collateral Agent has consented to such sale or
disposition of such assets, and such motion does not impair the rights of the
Noteholders or the Pari Passu Lenders under Section 363(k) of the
Bankruptcy Code; provided, that the Working Capital Facility Debt
Cap shall be reduced by an amount equal to the net cash proceeds of such sale
or other disposition which are used to pay the principal or face amount of the
Working Capital Facility Indebtedness. 
Each of the Existing Notes Collateral Agent (for itself and each of the
Existing Notes Noteholders) and the Pari Passu Collateral Agent (for itself and
each of the Pari Passu Lenders) agrees that none of them shall (i) object
to or oppose a sale or other disposition of any Collateral free and clear of
security interests, liens or other claims under Section 363 of the
Bankruptcy Code if the Primary Notes Collateral Agent has consented to such
sale or disposition of such assets, or (ii) credit bid for any assets that
are subject to any Disposition in any Insolvency Proceeding in accordance with Section 363(k) of
the Bankruptcy Code or otherwise.


 


6.9                                 Separate Grants
of Security and Separate Classification.  Each Secured Party acknowledges and agrees
that (a) the grants of Liens pursuant to the Working Capital Facility
Documents and the Interim Notes Documents and the Pari Passu Indebtedness
Documents and the Existing Notes Documents constitute four separate and
distinct grants of Liens and (b) because of their differing rights in the
Collateral, the secured claims in respect of the Working Capital Facility
Indebtedness, the Interim Notes Indebtedness, the Pari Passu Indebtedness and
the Existing Notes Indebtedness are fundamentally different and must be


 


38

















 


separately
classified in any plan of reorganization proposed or adopted in an Insolvency
Proceeding, and none of them shall seek in any Insolvency Proceeding to have
the Working Capital Facility Indebtedness, on one hand, the Interim Notes
Indebtedness, on another hand, the Pari Passu Indebtedness, on another hand, or
the Existing Notes Indebtedness, on another hand, on any of them, be treated as
part of the same class of creditors or shall oppose any pleading or motion to
have the Working Capital Facility Indebtedness, on one hand, the Interim Notes
Indebtedness, on another hand, the Pari Passu Indebtedness, on another hand, or
the Existing Notes Indebtedness, on another hand, and each of them, to be
treated as separate classes of creditors. 
Notwithstanding the foregoing, if it is held that the secured claims of
the Working Capital Facility Indebtedness, the Interim Notes Indebtedness, the
Pari Passu Indebtedness and/or the Existing Notes Indebtedness in respect of
the Collateral constitute only one secured claim (rather than separate classes
of secured claims as provided herein), then the Secured Parties hereby
acknowledge and agree that all distributions on Collateral securing the
applicable components of such secured claim shall be made as if there were
separate classes of secured claims against the Company and the other Obligors
in respect of such Collateral, all in accordance with the priority set forth in
Section 4.1 hereof.


 


Section 7. Reliance;
Waivers: etc.


 


7.1                                 Reliance
The consent by the Working Capital Facility Lenders to the Lien on the Shared
Collateral granted to the Notes Collateral Agent on behalf of the Noteholders,
and to the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, and
all loans and other extensions of credit made or deemed made on and after the
date hereof by the Working Capital Facility Collateral Agent or any of the
Working Capital Facility Lenders to the Obligors, shall be deemed to have been
given and made in reliance upon this Agreement. 
Each of the Existing Notes Collateral Agent (on behalf of itself and the
Existing Notes Noteholders), the Interim Notes Collateral Agent (on behalf of
itself and the Interim Notes Noteholders) and the Pari Passu Collateral Agent
(on behalf of itself and the Pari Passu Lenders) acknowledge that it and the
relevant Noteholders and Pari Passu Lenders, as applicable, have, independently
and without reliance on the Working Capital Facility Collateral Agent or any
Working Capital Facility Lender, and based on documents and information deemed
by them appropriate, made their own credit analysis and decision to enter into
the Indentures or acquire the Interim Notes Indebtedness or the Existing Notes
Indebtedness or the Pari Passu Indebtedness Documents, as applicable, and to
enter into this Agreement and the transactions contemplated hereby and thereby,
and they will continue to make their own credit decision in taking or not
taking any action under the Interim Notes Documents, the Existing Notes
Documents or the Pari Passu Indebtedness Documents, as applicable, or this
Agreement.  The consent by the Interim
Notes Noteholders and the Interim Notes Collateral Agent to the Lien on the
Shared Collateral granted to the Working Capital Facility Collateral Agent on
behalf of the Working Capital Facility Lenders, to the Existing Notes
Collateral Agent on behalf of the Existing Notes Noteholders, and to the Pari
Passu Collateral Agent on behalf of the Pari Passu Lenders, and all loans and
other extensions of credit made or deemed made before, on and after the date
hereof by the Interim Notes Collateral Agent or any of the Interim Notes
Noteholders to the Obligors, and all Interim Notes acquired, shall be deemed to
have been given and made, or acquired, as applicable, in reliance upon this
Agreement.  Each of the Existing Notes
Collateral Agent (on behalf of itself


 


39

















 


and
the Existing Notes Noteholders), the Working Capital Facility Collateral Agent
(on behalf of itself and the Working Capital Facility Lenders) and the Pari
Passu Collateral Agent (on behalf of itself and the Pari Passu Lenders)
acknowledge that it and the relevant Noteholders and Working Capital Facility
Lenders and Pari Passu Lenders, as applicable, have, independently and without
reliance on the Interim Notes Collateral Agent, the Interim Notes Trustee, or
any Interim Notes Noteholder, and based on documents and information deemed by
them appropriate, made their own credit analysis and decision to enter into the
Existing Notes Documents, the Working Capital Facility Documents or the Pari
Passu Indebtedness Documents, as applicable, this Agreement and the
transactions contemplated hereby and thereby, and they will continue to make
their own credit decision in taking or not taking any action under the Existing
Notes Documents, the Working Capital Facility Documents or the Pari Passu
Indebtedness Documents, as applicable, or this Agreement.


 


(b)                                 The Senior Subordinated Secured Parties hereby acknowledge,
confirm and agree that, for the purposes of determining the Working Capital
Facility Debt Cap, the Working Capital Facility Collateral Agent and the
Working Capital Facility Lenders shall be entitled to conclusively rely, and
shall be fully protected in conclusively relying, upon, without further
inquiry, each certificate duly executed by the president, the chief executive officer,
the chief financial officer, the treasurer, or the principal accounting officer
of the Company in the form established by the Working Capital Facility
Agreement certifying that such principal or face amount of Working Capital
Facility Indebtedness is, at the time of its incurrence, not greater than the
Working Capital Facility Debt Cap, taking into account the principal or face
amount of any other Working Capital Facility Indebtedness that will remain
outstanding immediately following the incurrence of such additional Working
Capital Facility Indebtedness.  Such
certificate shall be addressed to and delivered to the Notes Collateral Agent
substantially concurrently with the delivery of such certificate to the Working
Capital Facility Collateral Agent and/or the Working Capital Facility Lenders; provided,
that the Working Capital Facility Collateral Agent’s and Working Capital
Facility Lenders’ ability to rely on such certificate shall not be conditioned
on the receipt of such certificate by the Notes Collateral Agent or the Pari
Passu Collateral Agent.


 


(c)                                  The Working Capital Facility Collateral Agent, the Working
Capital Facility Lenders, the Notes Collateral Agent and the Noteholders hereby
acknowledge, confirm and agree that, for the purposes of determining the Pari
Passu Indebtedness Cap, the Pari Passu Collateral Agent and the Pari Passu
Lenders shall be entitled to conclusively rely, and shall be fully protected in
conclusively relying, upon, without further inquiry, each certificate duly executed
by the president, the chief executive officer, the chief financial officer, the
treasurer, or the principal accounting officer of the Company in the form
established by the applicable Pari Passi Indebtedness Document certifying that
such principal or face amount of Pari Passu Indebtedness is, at the time of its
incurrence, not greater than the Pari Passu Indebtedness Cap, taking into
account the principal or face amount of any other Pari Passu Indebtedness that
will remain outstanding immediately following the incurrence of such additional
Pari Passu Indebtedness.  Such
certificate shall be addressed to and delivered to the Notes Collateral Agent
and the Working Capital Facility Collateral Agent substantially concurrently
with the delivery of such certificate to the Pari Passu Collateral Agent and/or
the Pari Passu Lenders; provided, that the Pari Passu Collateral
Agent’s and Pari Passu Lenders’ ability to rely on such certificate shall not
be conditioned on the receipt of such certificate by the Notes Collateral Agent
or the Working Capital Facility Collateral Agent.


 


40

















 


7.2                                 No Warranties
or Liability.  Each of the
Notes Collateral Agent (on behalf of itself and the Noteholders) and the Pari
Passu Collateral Agent (on behalf of itself and the Pari Passu Lenders)
acknowledges and agrees that neither the Working Capital Facility Collateral
Agent nor any Working Capital Facility Lender has made any express or implied
representation or warranty, including, without limitation, with respect to the
execution, validity, legality, completeness, collectibility, or enforceability
of any of the Working Capital Facility Obligations or the Working Capital
Facility Documents.  The Working Capital
Facility Collateral Agent and the Working Capital Facility Lenders will be
entitled to manage and supervise their respective loans and extensions of
credit to the Company in accordance with law and as they may otherwise, in
their sole discretion, deem appropriate, and the Working Capital Facility
Collateral Agent and the Working Capital Facility Lenders may manage their
loans and extensions of credit without regard to any rights or interests that
any of the Senior Subordinated Secured Parties have in the Shared Collateral or
otherwise, except as otherwise expressly provided in this Agreement.  Neither the Working Capital Facility
Collateral Agent nor any Working Capital Facility Lender shall have any duty to
any of the Senior Subordinated Secured Parties to act or refrain from acting in
a manner which allows, or results in, the occurrence or continuance of an event
of default or default under any agreements with any Obligor (including, without
limitation, the Notes Documents and the Pari Passu Indebtedness Documents),
regardless of any knowledge thereof which they may have or be charged with.


 


Each
of the Working Capital Facility Collateral Agent (on behalf of itself and the
Working Capital Facility Lenders, the Existing Notes Collateral Agent (on
behalf of itself and the Existing Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) acknowledges
and agrees that neither the Interim Notes Trustee, Interim Notes Collateral
Agent nor any Interim Notes Noteholder has made any express or implied
representation or warranty, including, without limitation, with respect to the
execution, validity, legality, completeness, collectability, or enforceability
of any of the Interim Notes Obligations or the Interim Notes Documents or any
other Obligations or Secured Debt Documents or this Agreement.  The Interim Notes Trustee, Interim Notes
Collateral Agent and the Interim Notes Noteholders will be entitled to manage
and supervise their respective loans and extensions of credit to the Company in
accordance with law and as they may otherwise, in their sole discretion, deem
appropriate, and the Interim Notes Trustee, Interim Notes Collateral Agent and
the Interim Notes Noteholders may manage their loans and extensions of credit
without regard to any rights or interests that any of the other Secured Parties
have in the Shared Collateral or otherwise, except as otherwise expressly
provided in this Agreement.  Neither the
Interim Notes Trustee, Interim Notes Collateral Agent nor any of the Interim
Notes Noteholders shall have any duty to any other Secured Parties to act or
refrain from acting in a manner which allows, or results in, the occurrence or
continuance of an event of default or default under any agreements with any
Obligor (including, without limitation, the Working Capital Facility Documents,
the Notes Documents and the Pari Passu Indebtedness Documents), regardless of
any knowledge thereof which they may have or be charged with.


 


7.3                                 No Waiver of Lien Priorities; Effectiveness as to Certain
Persons No right of the Working Capital
Facility Lenders, the Working Capital Facility Collateral Agent, the Interim
Notes Collateral Agent or the Interim Notes Noteholders, or any of them, to
enforce any provision of this Agreement shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of any Obligor or by any
act or failure to act by any Working Capital


 


41

















 


Facility
Lender or the Working Capital Facility Collateral Agent or the Interim Notes
Collateral Agent or the Interim Notes Noteholders, as applicable, or by any
noncompliance by any Person with the terms, provisions and covenants of this
Agreement, any of the Working Capital Facility Documents, any of the Notes
Documents or any of the Pari Passu Indebtedness Documents, regardless of any
knowledge thereof which the Working Capital Facility Collateral Agent or the
Working Capital Facility Lenders, or the Interim Notes Collateral Agent or the
Interim Notes Noteholders, or any of them, may have or be otherwise charged
with.


 


Except during
any period in which Working Capital Facility Documents are in effect and the
Working Capital Facility Lenders have any obligation to extend or maintain
credit thereunder or Working Capital Facility Indebtedness is outstanding
thereunder, the provisions of this Agreement in favor of the Working Capital
Facility Collateral Agent and the Working Capital Facility Lenders, or relating
to the Working Capital Facility Indebtedness or any Working Capital Facility
Documents, or any Liens thereunder or Collateral therefor, shall not be
effective, and the Interim Notes Collateral Agent shall constitute the
Controlling Collateral Agent for all purposes hereof, and the Interim Notes
Noteholders and the Interim Notes Collateral Agent shall not constitute Junior
Secured Parties hereunder and shall instead constitute Controlling Secured
Parties hereunder.


 


Except during
any period in which Pari Passu Indebtedness Documents are in effect and the
Pari Passu Lenders have any obligation to extend or maintain credit thereunder
or Pari Passu Indebtedness is outstanding thereunder, the provisions of this
Agreement in favor of the Pari Passu Collateral Agent and the Pari Passu
Lenders, or relating to the Pari Passu Indebtedness or any Pari Passu
Documents, or any Liens thereunder or Collateral therefor, shall not be
effective.


 


(b)                                 Without in any way limiting the generality of the foregoing
paragraph (but subject to the rights of the Obligors under the Working Capital
Facility Documents and subject to the provisions of Section 5.3(a)),
the Working Capital Facility Lenders, the Working Capital Facility Collateral
Agent or any of one or more of them may, at any time and from time to time,
without the consent of, or notice to, any Junior Secured Party, without
incurring any liabilities to any Junior Secured Party and without impairing or
releasing the lien priorities and other benefits provided in this Agreement
(even if any right of subrogation or other right or remedy of any Junior
Secured Party is affected, impaired or extinguished thereby) do any one or more
of the following:


 


(i)                                     change the
manner, place or terms of payment or change or extend the time of payment of,
or renew, exchange, amend, increase or alter, the terms of any of the Working
Capital Facility Indebtedness or any Lien in any Working Capital Facility
Collateral or guaranty thereof or any liability of any Obligor or any other
Person to any of the Working Capital Facility Lenders or the Working Capital
Facility Collateral Agent (including, without limitation, any increase in or
extension of any of the Working Capital Facility Indebtedness, without any
restriction as to the amount, tenor or terms of any such increase or extension,
subject to the principal amount thereof not exceeding the Working Capital
Facility Debt Cap) or otherwise amend, renew, exchange, extend, modify or
supplement in any manner any of the Working Capital Facility Documents;


 


42

















 


(ii)                                  sell, exchange,
release, surrender, realize upon, enforce or otherwise deal with in any manner
and in any order any part of the Working Capital Facility Collateral or any
liability of any Obligor or any other Person to any of the Working Capital
Facility Lenders or the Working Capital Facility Collateral Agent, or any
liability incurred directly or indirectly in respect thereof;


 


(iii)                               settle or
compromise any Working Capital Facility Obligations or any other liability of
any Obligor or any other Person or any Lien therefor or any liability incurred
directly or indirectly in respect thereof and apply any sums by whomsoever paid
and however realized to any liability (including, without limitation, any of
the Working Capital Facility Indebtedness) in any manner or order; and


 


(iv)                              exercise or
delay in or refrain from exercising any right or remedy against any Obligor or
any other Person or any Working Capital Facility Collateral or any Lien
therefor, elect any remedy and otherwise deal freely with any Obligor or any
other Person or any Working Capital Facility Collateral or any Lien therefor.


 


Without in
any way limiting the generality of the foregoing paragraphs (but subject to the
rights of the Obligors under the Interim Notes Documents and subject to the
provisions of Section 5.3(a)), the Interim Notes Noteholders, the
Interim Notes Trustee, the Interim Notes Collateral Agent or any of one or more
of them may, at any time and from time to time, without the consent of, or
notice to, any Working Capital Facility Lender or the Working Capital Facility
Collateral Agent or any other Secured Party, without incurring any liabilities
to any other Secured Party and without impairing or releasing the lien
priorities and other benefits provided in this Agreement (even if any right of
subrogation or other right or remedy of any other Secured Party is affected,
impaired or extinguished thereby) do any one or more of the following:


 


(i)                                     change the
manner, place or terms of payment or change or extend the time of payment of,
or renew, exchange, amend, increase or alter, the terms of any of the Interim
Notes Obligations or any Lien in any Collateral or guaranty thereof or any
liability of any Obligor or any other Person to any of the Interim Notes
Noteholders, the Interim Notes Collateral Agent or any of one or more of them
(including, without limitation, any increase in or extension of any of the
Interim Notes Obligations, without any restriction as to the amount, tenor or
terms of any such increase or extension, or otherwise amend, renew, exchange,
extend, modify or supplement in any manner any of the Interim Notes Obligations
or the Interim Notes Documents;


 


(ii)                                  except as
otherwise expressly provided herein, sell, exchange, release, surrender,
realize upon, enforce or otherwise deal with in any manner and in any order any
part of the Collateral or any liability of any Obligor or any other Person to
any of the Interim Notes Noteholders, the Interim Notes Collateral Agent or any
of one or more of them, or any liability incurred directly or indirectly in
respect thereof;


 


(iii)                               settle or
compromise any Interim Notes Obligations or any other liability of any Obligor
or any other Person or any Lien therefor or any liability incurred directly or
indirectly in respect thereof and apply any sums by whomsoever paid and however
realized to any liability (including, without limitation, any of the Interim
Notes Obligations) in any manner


 


43

















 


or order (subject in the
case of Proceeds of Shared Collateral, to the provisions of this Agreement);
and


 


(iv)                              exercise or
delay in or refrain from exercising any right or remedy against any Obligor or
any other Person or any Collateral or any Lien therefor, elect any remedy and
otherwise deal freely with any Obligor or any other Person or any Collateral or
any Lien therefore (subject in the case of Proceeds of Shared Collateral, to
the provisions of this Agreement).


 


(c)                                  Each of the Notes Collateral Agent (on behalf of itself and
the Noteholders) and the Pari Passu Collateral Agent (on behalf of itself and
the Pari Passu Lenders) also agrees that the Working Capital Facility Lenders
and the Working Capital Facility Collateral Agent shall have no liability to
the Notes Collateral Agent or any Noteholder, on the one hand, and the Pari
Passu Collateral Agent or any Pari Passu Lender, on the other hand, and each of
the Notes Collateral Agent (on behalf of itself and the Noteholders) and the
Pari Passu Collateral Agent (on behalf of itself and the Pari Passu Lenders),
hereby waives any claim against any Working Capital Facility Lender or the
Working Capital Facility Collateral Agent, arising out of any and all actions
which any of the Working Capital Facility Lenders or the Working Capital
Facility Collateral Agent may take or permit or omit to take (if not in
violation of the provisions of this Agreement or applicable law ) with respect
to: (i) any of the Working Capital Facility Documents, (ii) the
collection of any of the Working Capital Facility Obligations or (iii) the
foreclosure upon, or sale, liquidation or other disposition of, any of the
Working Capital Facility Collateral in accordance with this Agreement and
applicable law.  Each of the Notes
Collateral Agent (on behalf of itself and the Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders), agrees that
the Working Capital Facility Lenders and the Working Capital Facility
Collateral Agent has no duty to them in respect of the maintenance or
preservation of the Working Capital Facility Collateral, the Working Capital
Facility Obligations or otherwise except as expressly set forth herein.


 


Each of the
Working Capital Facility Collateral Agent (on behalf of itself and the Working
Capital Facility Lenders), the Existing Notes Collateral Agent (on behalf of
itself and the Existing Notes Noteholders) and the Pari Passu Collateral Agent
(on behalf of itself and the Pari Passu Lenders) also agrees that the Interim
Notes Noteholders and the Interim Notes Collateral Agent shall have no liability
to the Working Capital Facility Collateral Agent or any Working Capital
Facility Lender, on one hand, the Existing Notes Collateral Agent or any
Existing Notes Noteholder, on another hand, and the Pari Passu Collateral Agent
or any Pari Passu Lender, on another hand, and each of the Working Capital
Facility Collateral Agent (on behalf of itself and the Working Capital Facility
Lenders), the Existing Notes Collateral Agent (on behalf of itself and the
Existing Notes Noteholders) and the Pari Passu Collateral Agent (on behalf of
itself and the Pari Passu Lenders), hereby waives any claim against any Interim
Notes Noteholders and the Interim Notes Collateral Agent or the Interim Notes
Trustee, arising out of any and all actions which any of the Interim Notes
Noteholders and the Interim Notes Collateral Agent may take or permit or omit
to take (if not in violation of the provisions of this Agreement or applicable
law) with respect to: (i) any of the Interim Notes Documents, (ii) the
collection of any of the Interim Notes Obligations or (iii) the
foreclosure upon, or sale, liquidation or other disposition of, any of the
Collateral in accordance with this Agreement and applicable law.  Each


 


44

















 


of the Working Capital Facility
Collateral Agent (on behalf of itself and the Working Capital Facility
Lenders), the Existing Notes Collateral Agent (on behalf of itself and the
Existing Notes Noteholders) and the Pari Passu Collateral Agent (on behalf of
itself and the Pari Passu Lenders), agrees that the Interim Notes Noteholders
and the Interim Notes Collateral Agent has no duty to them in respect of the
maintenance or preservation of the Collateral, the Interim Notes Obligations or
otherwise except as expressly set forth herein.


 


(d)                                 Each of the Notes Collateral Agent (on behalf of itself and
the Noteholders) and the Pari Passu Collateral Agent (on behalf of itself and
the Pari Passu Lenders) agrees not to assert and hereby waives, to the fullest
extent permitted by law, any right to demand, request, plead or otherwise
assert or otherwise claim the benefit of, any marshalling, appraisal, valuation
or other similar right that may otherwise be available under applicable law or
any other similar rights a junior secured creditor may have under applicable
law.


 


7.4                                 Obligations
Unconditional.  All rights,
interests, agreements and obligations of the Working Capital Facility
Collateral Agent and the Working Capital Facility Lenders, the Existing Notes
Collateral Agent and the Existing Notes Noteholders, the Interim Notes
Collateral Agent and the Interim Notes Noteholders,  and the Pari Passu Collateral Agent and the
Pari Passu Lenders, respectively, hereunder shall remain in full force and
effect irrespective of:


 


(a)                                  any lack of validity or enforceability of any Working
Capital Facility Document, any Notes Documents or any Pari Passu Indebtedness
Document;


 


(b)                                 any change in the time, manner or place of payment of, or in
any other terms of, all or any of the Working Capital Facility Obligations,
Notes Obligations or Pari Passu Obligations, or any amendment or waiver or
other modification (including, without limitation, any increase in the amount
thereof, whether by course of conduct or otherwise) of the terms of (i) the
Working Capital Facility Agreement or any other Working Capital Facility
Document, (ii) the Indentures or any other Notes Documents, or (iii) any
Pari Passu Indebtedness Document;


 


(c)                                  any amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the Working
Capital Facility Obligations, Notes Obligations or Pari Passu Obligations, any
Secured Debt Documents, or any guarantee of any of the foregoing;


 


(d)                                 the commencement of any Insolvency Proceeding in respect of
any Obligor; or


 


(e)                                  any other circumstances which otherwise might constitute a
defense available to, or a discharge of, any Obligor in respect of any of the
Working Capital Facility Obligations, the Interim Notes Obligations, the Pari
Passu Indebtedness or the Existing Notes Obligations, or of any Junior Secured
Party in respect of this Agreement.


 


(f)                                    Nothing in this Section 7.4 shall be construed
as a consent or waiver by the Working Capital Facility Collateral Agent or any
Working Capital Facility Lender to any action by the Notes Collateral Agent or
the Noteholders or under any of the Notes Documents, or any action by the Pari
Passu Collateral Agent and the Pari Passu Lenders under any of the Pari


 


45

















 


Passu
Indebtedness Documents, that is not otherwise permitted under the Working
Capital Facility Documents.  Nothing in
this Section 7.4 shall be construed as a consent or waiver by the
Interim Notes Collateral Agent or any Interim Notes Noteholder to any action by
the Working Capital Facility Collateral Agent or any Working Capital Facility
Lender or under any of the Working Capital Facility Documents, or any action by
the Existing Notes Collateral Agent or the Existing Notes Noteholders or under
any of the Existing Notes Documents, or any action by the Pari Passu Collateral
Agent and the Pari Passu Lenders under any of the Pari Passu Indebtedness
Documents, that is not otherwise permitted under the Interim Notes Documents.


 


Section 8. Miscellaneous.


 


8.1                                 Conflicts.  In the event of any conflict between the
provisions of this Agreement and the provisions of any of the Working Capital
Facility Documents, any of the Notes Documents or the Pari Passu Indebtedness
Documents, the provisions of this Agreement shall govern.  In the event of any conflict between any
instruction, request or direction given by the Controlling Collateral Agent to
any Trustee or any Junior Secured Party pursuant to, and in accordance with,
this Agreement and any instruction, request or direction given by any Working
Capital Facility Lender or the Interim Notes Collateral Agent (unless it is
acting as the Controlling Collateral Agent) or the Existing Notes Collateral
Agent or Pari Passu Collateral Agent or any Interim Notes Noteholder or Pari
Passu Lender or Existing Notes Noteholder to any Trustee or any Junior Secured
Party pursuant to, and in accordance with, this Agreement, the instruction,
request or direction given by the Controlling Collateral Agent shall govern.


 


8.2                                 Continuing Nature
of this Agreement.  This
Agreement shall continue to be effective until only one Series of Secured
Debt remains outstanding.  This is a
continuing agreement of lien subordination, and the Working Capital Facility
Collateral Agent and Working Capital Facility Lenders may continue, at any time
and without notice to any Junior Secured Party, to extend credit and other
financial accommodations and lend monies to or for the benefit of the Obligors
in reliance on this Agreement.  Each of
the Working Capital Facility Collateral Agent, on behalf of itself and, to the
extent permitted by applicable law, the Working Capital Facility Lenders, the
Notes Collateral Agent, on behalf of itself and, to the extent permitted by
applicable law, the Noteholders, and the Pari Passu Collateral Agent, on behalf
of itself and, to the extent permitted by applicable law, the Pari Passu
Lenders, hereby waives any right it may have under applicable law to revoke
this Agreement or any of the provisions of this Agreement.  The terms of this Agreement shall survive,
and shall continue in full force and effect, in any Insolvency Proceeding.


 


8.3                                 Amendments;
Waivers.  No amendment, modification or
waiver of any of the provisions of this Agreement shall be deemed to be made
unless the same shall be in writing signed by the Existing Notes Collateral
Agent, the Interim Notes Collateral Agent, the Pari Passu Collateral Agent (if
any Pari Passu Indebtedness shall be outstanding) (and with respect to any such
waiver, amendment or modification which by the terms of this Agreement requires
the Company’s consent or which increases the obligations or reduces the rights
of the Company or any Guarantor, with the consent of the Company) and the
Working Capital Facility Collateral Agent (if any Working Capital Facility
Obligations shall be outstanding) and each waiver, if any, shall be a waiver
only with respect to the specific instance involved and shall in no way impair
the rights of the parties making such waiver or the obligations of the other
parties to such party in


 


46

















 


any
other respect or at any other time. 
Except as expressly provided herein, the Company and any other Obligor
shall not have any right to amend, modify or waive any provision of this
Agreement, nor shall any consent or signed writing be required of any of them
to effect any amendment, modification or waiver of any provision of this
Agreement.


 


8.4                                 Information
Concerning Financial Condition of the Company and its Subsidiaries.  The Working Capital Facility Collateral Agent
and the Working Capital Facility Lenders, in the first instance, the Notes
Collateral Agent and the Noteholders, in the second instance, and the Pari
Passu Collateral Agent and the Pari Passu Lenders, in the third instance, shall
each be responsible for keeping themselves informed of (a) the financial
condition of the Company and its subsidiaries and all Obligors in respect of
the Working Capital Facility Obligations or the Notes Obligations or the Pari
Passu Obligations, as the case may be, and (b) all other circumstances
bearing upon the risk of nonpayment of the Working Capital Facility
Obligations, the Notes Obligations or the Pari Passu Obligations.  The Working Capital Facility Collateral Agent
and the Working Capital Facility Lenders and the Interim Notes Collateral Agent
and the Interim Notes Noteholders each shall have no duty to advise any other
Secured Party of information known to it or them regarding such condition or
any such circumstances or otherwise.  In
the event the Working Capital Facility Collateral Agent or any of the Working
Capital Facility Lenders, or the Interim Notes Collateral Agent or any of the
Interim Notes Noteholders, in each case in its or their sole discretion,
undertakes at any time or from time to time to provide any such information to
any other Secured Party, it or they shall be under no obligation (i) to
provide any additional information or to provide any such information on any
subsequent occasion, (ii) to undertake any investigation or (iii) to
disclose any information which, pursuant to accepted or reasonable commercial
finance practices, such party wishes to maintain confidential, so long as the
failure to disclose such information will not render information which was
disclosed materially misleading.  None of
the Senior Subordinated Secured Parties shall have a duty to advise the Working
Capital Facility Collateral Agent or any Working Capital Facility Lender or any
other Secured Party of information known to it or them regarding such condition
or any such circumstances or otherwise. 
In the event any Junior Secured Party, in its or their sole discretion,
undertakes at any time or from time to time to provide any such information to
the Working Capital Facility Collateral Agent or any Working Capital Facility
Lender, it or they shall be under no obligation (i) to provide any
additional information or to provide any such information on any subsequent
occasion, (ii) to undertake any investigation or (iii) to disclose
any information which, pursuant to accepted or reasonable commercial finance
practices, such party wishes to maintain confidential, so long as the failure
to disclose such information will not render information which was disclosed
materially misleading.


 


8.5                                 Application of
Payments.  As among
the Working Capital Facility Collateral Agent and the Working Capital Facility
Lenders, in the first instance, and the Notes Collateral Agent and the
Noteholders, in the second instance, and the Pari Passu Collateral Agent and
the Pari Passu Lenders, in the third instance, all payments received by the
Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders may be applied, reversed and reapplied, in whole or in part, to such
part of the Working Capital Facility Indebtedness (subject to the principal
amount thereof not exceeding the Working Capital Facility Debt Cap) as the
Working Capital Facility Collateral Agent and/or the Working Capital Facility
Lenders, in their sole discretion, deem appropriate.  As among the Working Capital Facility
Collateral Agent and


 


47

















 


the
Working Capital Facility Lenders, in the first instance, and the Interim Notes
Collateral Agent, the Interim Notes Trustee, and the Interim Notes Noteholders,
in the second instance, and the Existing Notes Collateral Agent and the
Existing Notes Noteholders, in the third instance, and the Pari Passu
Collateral Agent and the Pari Passu Lenders, in the fourth instance, all
payments received by the Interim Notes Collateral Agent or the Interim Notes
Noteholders may be applied, reversed and reapplied, in whole or in part, to
such part of the Interim Notes Obligations as the Interim Notes Collateral
Agent and/or the Interim Notes Noteholders, in their sole discretion, deem
appropriate.  The Notes Collateral Agent
(on behalf of itself and the Noteholders) and the Pari Passu Collateral Agent
(on behalf of itself and the Pari Passu Lenders) assents to any extension or postponement
of the time of payment of the Working Capital Facility Indebtedness or any part
thereof and to any other indulgence with respect thereto, to any substitution,
exchange or release of any Shared Collateral which may at any time secure any
part of the Working Capital Facility Obligations and to the addition or release
of any other Person primarily or secondarily liable therefor.  The Working Capital Facility Collateral Agent
(on behalf of itself and the Working Capital Facility Lenders) and the Existing
Notes Collateral Agent (on behalf of itself and the Existing Notes Noteholders)
and the Pari Passu Collateral Agent (on behalf of itself and the Pari Passu
Lenders) assents to any extension or postponement of the time of payment of the
Interim Notes Obligations or any part thereof and to any other indulgence with
respect thereto, to any substitution, exchange or release of any Shared
Collateral which may at any time secure any part of the Existing Notes
Obligations and to the addition or release of any other Person primarily or
secondarily liable therefor.


 


8.6                                 Notices.  All notices to the Existing Notes
Noteholders, the Interim Notes Noteholders, the Pari Passu Lenders and the
Working Capital Facility Lenders permitted or required under this Agreement may
be sent to the Existing Notes Collateral Agent, the Interim Notes Collateral
Agent, the Pari Passu Collateral Agent and the Working Capital Facility
Collateral Agent, respectively.  Unless
otherwise specifically provided herein, any notice or other communication
herein required or permitted to be given shall be in writing and may be
personally served, telecopied, electronically mailed or sent by courier service
or U.S. mail and shall be deemed to have been given when delivered in person or
by courier service, upon receipt of a telecopy or electronic mail or four (4) Business
Days after deposit in the U.S. mail (registered or certified, with postage
prepaid and properly addressed).  For the
purposes hereof, the addresses of the parties hereto shall be as set forth
below each party’s name on the signature pages hereto, or, as to each
party, at such other address as may be designated by such party in a written
notice to all of the other parties.


 


8.7                                 Joinder of Additional Secured Parties The Pari Passu Collateral Agent and the Pari Passu Lenders
may, upon compliance with the relevant provisions of the Secured Debt
Documents, become parties hereto by executing and delivering to the Controlling
Collateral Agent and the Interim Notes Collateral Agent (a) a joinder
agreement in the form attached hereto as Exhibit A (“Joinder
Agreement”) and (b) copy of the agreements evidencing such Pari Passu
Indebtedness to which such Person is a party. 
Upon the execution and delivery of any such copy of this Agreement by
any such Person, such Person, shall, upon delivery thereof to the Controlling
Collateral Agent and the Interim Notes Collateral Agent, thereafter become a
party to this Agreement.


 


48
















 


(b)                                 The Working Capital Facility Collateral Agent may, upon
compliance with the relevant provisions of the Secured Debt Documents, become a
party hereto by executing and delivering to the Controlling Collateral Agent
and the Interim Notes Collateral Agent (a) the Joinder Agreement, and (b) a
copy of the agreements evidencing such Working Capital Facility Indebtedness to
which such Person is a party.  Upon the
execution and delivery of any such copy of this Agreement by any such Person,
such Person, shall, upon delivery thereof to the Controlling Collateral Agent
and the Interim Notes Collateral Agent, thereafter become a party to this
Agreement.


 


8.8                                 Further
Assurances.


 


(a)                                  The Working Capital Facility Collateral Agent (on behalf of
itself and the Working Capital Facility Lenders), the Existing Notes Collateral
Agent (on behalf of itself and the Existing Notes Noteholders), the Interim
Notes Collateral Agent (on behalf of itself and the Interim Notes Noteholders),
the Pari Passu Collateral Agent (on behalf of itself and the Pari Passu
Lenders) and the Company, agree that each of them shall take such further
action and shall execute and deliver such additional documents and instruments
(in recordable form, if requested) as the Working Capital Facility Collateral
Agent, the Existing Notes Collateral Agent, the Interim Notes Collateral Agent,
or the Pari Passu Collateral Agent may reasonably request to effectuate the
terms of and the Lien priorities contemplated by this Agreement.


 


8.9                                 Governing Law.  This Agreement has been delivered and
accepted at and shall be deemed to have been made at New York, New York and
shall be governed by and construed and enforced in accordance with the laws of
the State of New York.


 


8.10                           Binding on
Successors and Assigns.  This
Agreement shall be binding upon the Working Capital Facility Collateral Agent,
the Working Capital Facility Lenders, the Existing Notes Trustee, the Interim
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes
Collateral Agent, the Noteholders, the Pari Passu Collateral Agent, the Pari
Passu Lenders, and their respective permitted successors and assigns.


 


8.11                           Specific
Performance.  Each of the
Working Capital Facility Collateral Agent and the Working Capital Facility
Lenders, in the first instance, the Interim Notes Collateral Agent and the
Interim Notes Noteholders, in the second instance, and the Pari Passu
Collateral Agent and the Pari Passu Lenders, in the third instance, may demand
specific performance of this Agreement. 
The Working Capital Facility Collateral Agent (on behalf of itself and
the Working Capital Facility Lenders), the Existing Notes Collateral Agent (on
behalf of itself and the Existing Notes Noteholders), the Interim Notes
Collateral Agent (on behalf of itself and the Interim Notes Noteholders), and
the Pari Passu Collateral Agent (on behalf of itself and the Pari Passu
Lenders) hereby irrevocably waive any defense based on the adequacy of a remedy
at law and any other defense which might be asserted to bar the remedy of specific
performance in any action which may be brought by the Interim Notes Collateral
Agent or the Interim Notes Noteholders, the Working Capital Facility Collateral
Agent or the Working Capital Facility Lenders, or the Pari Passu Collateral
Agent or the Pari Passu Lenders, as the case may be.


 


8.12                           Section Titles;
Time Periods; Capacities.  The
section titles contained in this Agreement are and shall be without substantive
meaning or content of any kind whatsoever and


 


49

















 


are
not a part of this Agreement.  In the
computation of time periods, unless otherwise specified, the word “from” means
“from and including” and each of the words “to” and “until” means “to but
excluding” and the word “through” means “to and including”.  All references to the Company or any
Guarantor shall include the Company or such Guarantor as an obligor under the
Working Capital Facility Documents, any of the Notes Documents or the Pari
Passu Indebtedness Documents, regardless of its capacity as a Company or
guarantor thereunder.


 


8.13                           Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which shall
together constitute one and the same document. 
Delivery of an executed counterpart of this Agreement by facsimile or
electronic transmission shall be equally as effective as delivery of an
original executed counterpart of this Agreement.  Any party delivering an executed counterpart of
this Agreement by facsimile or electronic transmission also shall deliver an
original executed counterpart of this Agreement, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Agreement.


 


8.14                           Authorization.  By its signature, each Person executing this
Agreement on behalf of a party hereto represents and warrants to the other
parties hereto that it is duly authorized to execute this Agreement and to bind
the Persons for which it acts as Authorized Representative to the terms and
conditions hereof.


 


8.15                           No Third Party
Beneficiaries.  This
Agreement and the rights and benefits hereof shall inure to the benefit of each
of the parties hereto and its respective successors and assigns and shall inure
to the benefit of each of the Working Capital Facility Lenders, the Noteholders
and the Pari Passu Lenders.  Nothing in
this Agreement shall impair, as between the Obligors and the Working Capital
Facility Collateral Agent and the Working Capital Facility Lenders, or as between
the Obligors and the Trustee, the Notes Collateral Agent and the Noteholders,
or as between the Obligors and the Pari Passu Collateral Agent and the Pari
Passu Lenders, the obligations of the Obligors to pay principal, interest, fees
and other amounts as provided in the Working Capital Facility Documents, the
Notes Documents and the Pari Passu Indebtedness Documents, respectively.


 


8.16                           Subrogation.  With respect to the value of any payments or
distributions in cash or other assets that any of the Noteholders or the Notes
Collateral Agent, on the one hand, or any of the Pari Passu Lenders or the Pari
Passu Collateral Agent, on the other hand, pays over to the Working Capital
Facility Collateral Agent or the Working Capital Facility Lenders under the terms
of this Agreement (including, without limitation, any payments pursuant to Section 5.6(b)),
the Noteholders and the Notes Collateral Agent, on the one hand, and the Pari
Passu Lenders and the Pari Passu Collateral Agent, on the other hand, shall be
subrogated to the rights of the Working Capital Facility Collateral Agent and
the Working Capital Facility Lenders; provided, that the Notes
Collateral Agent (on behalf of itself and the Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) hereby agrees
not to assert or enforce all such rights of subrogation it may acquire as a
result of any payment hereunder until the Discharge of Working Capital Facility
Obligations.  With respect to the value
of any payments or distributions in cash or other assets that any of the
Existing Notes Noteholders or the Existing Notes Collateral Agent, on the one
hand, or any of the Pari Passu Lenders or the Pari Passu Collateral Agent, on
the other hand, pays over to the Interim 
Notes Collateral Agent or the


 


50

















 


Interim
Notes Noteholders under the terms of this Agreement (including, without
limitation, any payments pursuant to Section 5.6(b)), the Existing
Notes Noteholders and the Existing Notes Collateral Agent, on the one hand, and
the Pari Passu Lenders and the Pari Passu Collateral Agent, on the other hand,
shall be subrogated to the rights of the Interim  Notes Collateral Agent and the Interim Notes
Noteholders; provided, that the Existing Notes Collateral Agent
(on behalf of itself and the Existing Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) hereby agrees
not to assert or enforce all such rights of subrogation it may acquire as a
result of any payment hereunder until the Discharge of Interim Notes
Obligations.  The Company acknowledges
and agrees that the value of any payments or distributions in cash, property or
other assets received by the Notes Collateral Agent, the Noteholders, the Pari
Passu Collateral Agent or the Pari Passu Lenders that are paid over to the
Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders or the Interim Notes Collateral Agent or the Interim Notes Noteholders
pursuant to this Agreement shall not reduce any of the relevant Notes
Indebtedness or the Pari Passu Indebtedness, as applicable.


 


8.17                           Certain
Regulatory Requirements. 
Notwithstanding any provision to the contrary in this Agreement, no
party to this Agreement will take any action hereunder in contravention of Section 6.15
of the Interim Notes Collateral Agreement.


 


[The remainder of this page has been intentionally left blank.]


 


51

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.


 


 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Existing Notes Trustee and Existing
  Notes Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Interim Notes Trustee and Interim Notes
  Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


52

















 


OBLIGOR
ACKNOWLEDGMENT


 


Each
of the undersigned hereby acknowledges and agrees to the foregoing terms and provisions.  By its signature below, the undersigned
agrees that it will, together with its successors and assigns, be bound by the
provisions of the within and foregoing Intercreditor Agreement.


 


Each
of the undersigned agrees that the Controlling Collateral Agent possessing or
controlling Shared Collateral does so as bailee and agent for perfection (such
bailment and agency for perfection being intended, among other things, to
satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of
the UCC) for the other Secured Parties, to the extent each has a Lien on such
Shared Collateral, and is hereby authorized to and may turn over such Shared
Collateral to the Interim Notes Collateral Agent or, after the Discharge of
Interim Note Obligations, the Pari Passu Collateral Agent, in accordance with
the foregoing Intercreditor Agreement, after the Discharge of Working Capital
Facility Obligations.


 


Each
of the undersigned acknowledges and agrees that: (i) although it may sign
this Obligor Acknowledgment to the Intercreditor Agreement it is not a party
thereto and does not and will not receive any right, benefit, priority or
interest under or because of the existence of the foregoing Intercreditor
Agreement and (ii) it will execute and deliver such additional documents
and take such additional action as may be necessary or desirable in the
reasonable opinion of the Working Capital Facility Collateral Agent, the Notes
Collateral Agent or the Pari Passu Collateral Agent to effectuate the
provisions and purposes of the foregoing Intercreditor Agreement.


 


	
   

  	
  FIBERTOWER CORPORATION

  
	
   

  	
  FIBERTOWER NETWORK SERVICES CORP.

  
	
   

  	
  ART LEASING, INC.

  
	
   

  	
  ART LICENSING CORP.

  
	
   

  	
  TELIGENT SERVICES ACQUISITION, INC.

  
	
   

  	
  FIBERTOWER SOLUTIONS CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [

  	
  ]

  
	
   

  	
  [

  	
  ]

  
	
   

  	
  Attention: [

  	
  ]

  
	
   

  	
  Telecopy No.: [

  	
  ]

  
	
   

  	
  email address: [

  	
  ]

  
					



 


53

















 


Exhibit A


 


[FORM OF JOINDER AGREEMENT]


 


JOINDER
AGREEMENT, dated as of
[                            
      ,           ],
to the AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of
[                ]
[    ], 2009 (as amended, restated or otherwise modified
from time to time, the “Intercreditor Agreement”), among  (a) WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, in its capacity as trustee
pursuant to the Existing Notes Indenture (as hereinafter defined) for the
Existing Notes Noteholders (as hereinafter defined) (in such capacity, together
with its successors and assigns in such capacity, the “Existing Notes
Trustee”); (b) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national
banking association, in its capacity as collateral agent pursuant to the
Existing Notes Collateral Agreements (as hereinafter defined) for the benefit
of the Existing Notes Trustee and the Existing Notes Noteholders (in such
capacity, together with its successors and assigns in such capacity, the “Existing
Notes Collateral Agent”); (c) WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, in its capacity as trustee pursuant to the
Interim Notes Indenture (as hereinafter defined) for the Interim Notes
Noteholders (as hereinafter defined) (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Trustee”); (d) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Interim Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes
Trustee and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Collateral Agent”);
(e) each additional AUTHORIZED REPRESENTATIVE from time to time  party hereto for the Additional Secured
Parties of the Series of Secured Debt with respect to which it is acting
in such capacity; and (f) FIBERTOWER CORPORATION, a Delaware corporation,
FIBERTOWER NETWORK SERVICES CORP., a Delaware corporation, ART LEASING, INC., a
Delaware corporation, TELIGENT SERVICES ACQUISITION, INC., a Delaware
corporation, ART LICENSING CORP., a Delaware corporation, and FIBERTOWER
SOLUTIONS CORPORATION, a Delaware corporation.


 


A.  Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Intercreditor Agreement.


 


B.  As a condition to the ability of the Company
to incur Working Capital Facility Indebtedness or Pari Passu Indebtedness and
to secure such indebtedness with a Lien on the Shared Collateral, in each case
under and pursuant to the Intercreditor Agreement, the Working Capital Facility
Collateral Agent and the Pari Passu Collateral Agent, as the case may be, is
required to become an Authorized Representative under, and is required to
become subject to and bound by, the Intercreditor Agreement.  Section 8.7 of the Intercreditor
Agreement provides that such Persons may become an Authorized Representative
under, and become subject to and bound by, the Intercreditor Agreement,
pursuant to the execution and delivery by such Person of a joinder agreement in
the form of this Joinder Agreement.  The
undersigned is executing this Joinder Agreement in accordance with the
requirements of the applicable Secured Debt Documents.


 


SECTION 1.  Accordingly, the undersigned (the “Additional
Authorized Representative”) by its signature below becomes an Authorized
Representative under, and the


 


1

















 


related
Additional Secured Parties become subject to and bound by, the Intercreditor
Agreement with the same force and effect as if the Additional Authorized
Representative had originally been named therein as an Authorized
Representative, and the Additional Authorized Representative, on behalf of
itself and such Additional Secured Parties, hereby agrees to all the terms and
provisions of the Intercreditor Agreement applicable to it as an Authorized
Representative in respect of such Obligations and the Additional Secured
Parties that it represents as Secured Parties. 
The Intercreditor Agreement is hereby incorporated herein by reference.


 


SECTION 2.  [The undersigned Additional Authorized
Representative hereby acknowledges that (i) the Notes Collateral Agent,
acting for and on behalf of the Noteholders, has been granted Liens upon the
Noteholder Collateral pursuant to the Notes Documents to secure the Notes
Obligations and (ii) to the extent any Pari Passu Indebtedness is
outstanding, the Pari Passu Collateral Agent, acting for and on behalf of the
Pari Passu Lenders, has been granted Liens upon the Pari Passu Collateral pursuant
to the Pari Passu Indebtedness Documents to secure the Pari Passu Obligations
(subject to the principal amount thereof not exceeding the Pari Passu
Indebtedness Cap)(1)] [The undersigned Additional Authorized Representative
hereby acknowledges that (i) to the extent any Working Capital Facility
Indebtedness is outstanding, the Working Capital Facility Collateral Agent,
acting for and on behalf of Working Capital Facility Lenders, has been granted
Liens upon the Working Capital Facility Collateral pursuant to the Working
Capital Facility Documents to secure the Working Capital Facility Obligations
(subject to the principal amount thereof not exceeding the Working Capital
Facility Debt Cap) and (ii) the Notes Collateral Agent, acting for and on
behalf of the Noteholders, has been granted Liens upon the Noteholder
Collateral pursuant to the Notes Documents to secure the Notes Obligations.(2)]


 


SECTION 3.  The undersigned Additional Authorized
Representative represents and warrants to the Controlling Agent and the other
Secured Parties that (i) it has full power and authority to enter into
this Joinder Agreement, in its capacity as [agent] [trustee], (ii) this
Joinder Agreement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with the terms of such Agreement and (iii) the applicable
Secured Debt Documents provide that, upon the Additional Authorized
Representative’s entry into this Agreement, the Additional Secured Parties that
it represents, will be subject to
and bound by the provisions of the Intercreditor Agreement as Secured Parties.


 


SECTION 4.  This Joinder Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract.  This Joinder Agreement shall become effective
when the Controlling Collateral Agent shall have received a counterpart of this
Joinder Agreement that bears the signature of the undersigned Additional
Authorized Representative.  Delivery of
an executed signature page to this Joinder Agreement by facsimile
transmission shall be effective as delivery of a manually signed counterpart of
this Joinder Agreement.


 


SECTION 5.  Except as expressly supplemented hereby, the
Intercreditor Agreement shall remain in full force and effect.


 






(1) Include
for Joinder Agreement executed by Working Capital Facility Collateral Agent.


 


(2) Include
for Joinder Agreement executed by Pari Passu Collateral Agent.


 


2

















 


SECTION 6.  THIS JOINDER AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


[Signature on following page]


 


3

















 


IN
WITNESS WHEREOF, the undersigned Additional Authorized Representative and the
Controlling Agent have duly executed this Joinder Agreement as of the day and
year first above written.


 


	
   

  	
  [NAME OF ADDITIONAL AUTHORIZED REPRESENTATIVE], as [                 ] for the holders of [                     ],

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention of:

  
	
   

  	
  Telecopy:

  
					



 


 


	
  ACKNOWLEDGED
  AND AGREED:

  	
   

  
	
   

  	
   

  
	
  [NAME
  OF CONTROLLING COLLATERAL AGENT],

  	
   

  
	
  as
  Controlling Collateral Agent,

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:    Authorized Signatory

  	
   

  
	
   

  	
   

  
	
  Address
  for notices:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention
  of:

  	
   

  
	
  Telecopy:

  	
   

  



 


4
















 


EXHIBIT B


 


AMENDED AND RESTATED
INTERCREDITOR AGREEMENT


 


This AMENDED AND RESTATED INTERCREDITOR
AGREEMENT, dated as of [            ]
[     ], 20[   ], is entered into,
pursuant to and in accordance with the terms of the Omnibus Intercreditor
Agreement, by and among (a) [WELLS FARGO BANK, NATIONAL ASSOCIATION]
[substitute any successor, as applicable], a national banking association, in
its capacity as trustee pursuant to the Existing Notes Indenture (as
hereinafter defined) for the Existing Notes Noteholders (as hereinafter
defined) (in such capacity, together with its successors and assigns in such
capacity, the “Existing Notes Trustee”); (b) [WELLS FARGO BANK,
NATIONAL ASSOCIATION] [substitute any successor, as applicable], a national
banking association, in its capacity as collateral agent pursuant to the
Existing Notes Collateral Agreements (as hereinafter defined) for the benefit
of the Existing Notes Trustee and the Existing Notes Noteholders (in such
capacity, together with its successors and assigns in such capacity, the “Existing
Notes Collateral Agent”); (c) [WELLS FARGO BANK, NATIONAL ASSOCIATION]
[substitute any successor, as applicable], a national banking association, in
its capacity as trustee pursuant to the New Notes Indenture (as hereinafter
defined) for the New Notes Noteholders (as hereinafter defined) (in such
capacity, together with its successors and assigns in such capacity, the “New
Notes Trustee”); (d) [WELLS FARGO BANK, NATIONAL ASSOCIATION]
[substitute any successor, as applicable], a national banking association, in
its capacity as collateral agent pursuant to the New Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes
Trustee and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “New Notes Collateral Agent”);
(e) at such time, if any, as the Revolving Credit Agreement is entered
into and becomes effective and designated as such for purposes hereof, the
Revolving Agent; and (f) FIBERTOWER CORPORATION, a Delaware corporation
(the “Borrower” or the “Company”), FIBERTOWER NETWORK SERVICES
CORP., a Delaware corporation, ART LEASING, INC., a Delaware corporation,
TELIGENT SERVICES ACQUISITION, INC., a Delaware corporation, ART LICENSING CORP.,
a Delaware corporation, and FIBERTOWER SOLUTIONS CORPORATION, a Delaware
corporation.


 


W I T N E S S E T H:


 


WHEREAS, the Company (as hereinafter
defined), the other Obligors (as hereinafter defined) and the Existing Notes
Trustee and Existing Notes Collateral Agent have entered into the Indenture,
dated as of November 9, 2006, (as such Indenture may be amended, modified,
supplemented, extended, renewed, restated or refinanced, the “Existing Notes
Indenture”) governing the 9.00% Convertible Senior Secured Notes due 2012
(such notes, the “Existing Notes”) issued by the Company to the Existing
Notes Noteholders;


 


WHEREAS, prior to the date hereof the
Company, the other Obligors and Wells Fargo Bank, National Association, as
Interim Notes Agent, have entered into (i) an Amended and Restated
Intercreditor Agreement (the “Interim Notes Intercreditor Agreement”)
pursuant to the 


 

















 


terms of the Omnibus
Intercreditor Agreement (as defined below) and (ii) the Interim Notes
Indenture governing the Interim Notes issued by the Company to the Interim
Notes Noteholders (as defined in the Interim Notes Intercreditor Agreement);


 


WHEREAS, the Interim Notes have, concurrently
with the effectiveness of this Agreement, been mandatorily redeemed in
accordance with the provisions thereof, and the Interim Notes Obligations have
been satisfied and the New Notes have been issued as partial consideration for
such Mandatory Redemption and, together with other consideration, in exchange
for the Interim Notes, and pursuant to the provisions of the Omnibus
Intercreditor Agreement, dated as of December        ,
2009, among the Company, the other Obligors, the Interim Notes Agent, the
Existing Notes Agent and the New Notes Agent and the other creditors, if any,
party thereto (as amended, modified, supplemented, extended, renewed or
restated in accordance with the term thereof, the “Omnibus Intercreditor
Agreement”), this Agreement has become effective upon effectiveness of the
New Notes Indenture and issuance of the New Notes pursuant thereto in
connection with such Mandatory Redemption;


 


WHEREAS, the Company and the other Obligors
[has entered][may enter] into a Revolving Credit Agreement which the Company
desires to secure, all in a manner consistent with the provisions and
priorities set forth herein, that provides for extensions of credit not to
exceed the Maximum Revolving Credit Principal Amount.


 


WHEREAS, it is a condition precedent to the
issuance by the Company of the New Notes upon consummation of the Mandatory
Redemption that the Existing Notes Agent, on behalf of itself and the Existing
Notes Creditors, the New Notes Agent, on behalf of itself and the Term Loan
Creditors, the Company and the other Obligors enter into this Agreement;


 


WHEREAS, the Existing Notes Agent, on behalf
of itself and the Existing Notes Creditors, the Term Loan Agent, on behalf of
itself and the Term Loan Creditors, and, at such time as the Revolving Credit
Agreement may become effective and the Revolving Agent becomes a party hereto,
the Revolving Agent, on behalf of itself and the Revolving Creditors, wish to
set forth their agreement as to certain of their respective rights and
obligations with respect to the assets and properties of the Company and the
other Obligors and their understanding relative to their respective positions
in certain assets and properties of the Company and the other Obligors.


 


NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Existing Notes Agent, on behalf of
itself and the Existing Notes Creditors, the Term Loan Agent, on behalf of
itself and the Term Loan Creditors, and, at such time as the Revolving Credit
Agreement may become effective and the Revolving Agent becomes a party hereto,
the Revolving Agent, on behalf of itself and the Revolving Creditors, and the
Obligors party hereto, hereby agree as follows:


 


Section 1.                                            Definitions.


 


1.1           General Terms.  As used in
this Agreement, the following terms (including those in the preamble and
recitals hereto) shall have the respective meanings indicated 


 


2

















 


below, such meanings to be applicable equally
to both the singular and the plural forms of the terms defined:


 


“Access Period”
means, with respect to each parcel or item of Term Loan Priority Collateral,
the period, that begins on the fifth Business Day after which both of the
following have occurred: (a) the Revolving Agent has commenced an
Enforcement Action and (b) the Revolving Agent or any other Revolving Creditor
initially has actual access, whether or not utilized, to such parcel or item of
Term Loan Priority Collateral for the purpose of taking physical possession of,
removing or otherwise controlling, or using in any manner, Revolving Credit
Priority Collateral located at such parcel or item of Term Loan Priority
Collateral (the “Initial Access Date”), and ends on
the earliest of (i) the day that is 180 days after the Initial Access Date
plus such number of days, if any, after the Initial Access Date that it is
stayed or otherwise prohibited by law or court order from exercising remedies
with respect to the associated Revolving Credit Priority Collateral, (ii) the
date on which all or substantially all of the Revolving Credit Priority
Collateral associated with such parcel or item of Term Loan Priority Collateral
is sold, removed, collected or liquidated, (iii) the Revolving Credit
Termination Date and (iv) the date on which the Event of Default which
resulted in commencement of the applicable Enforcement Action against such
Revolving Credit Priority Collateral has been cured or waived in writing.


 


“Account”  shall have
the meaning set forth in the Uniform Commercial Code as in effect in the State
of New York from time to time, including all rights to payment for goods sold
or leased, or for services rendered.


 


“Affiliate”
means with respect to any Person, another Person that directly or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified. 
As used herein, “Control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have correlative meanings.


 


“Agreement”
means this Amended and Restated Intercreditor Agreement..


 


“Bank Product Obligations”
means, with respect to any Obligor, any obligations of such Obligor owed to any
Revolving Creditor (or any of its Affiliates) in respect of any of the
following products, services or facilities extended to any Obligor by a
Revolving Lender or any of its Affiliates: (a) any services provided from
time to time by any Revolving Lender or any of its Affiliates to any Obligor in
connection with operating, collections, payroll, trust, or other depository or
disbursement accounts, including automated clearinghouse, e-payable, electronic
funds transfer, wire transfer, controlled disbursement, overdraft, depository,
information reporting, lockbox and stop payment services; (b) products
under an agreement relating to any swap, cap, floor, collar, option, forward,
cross right or obligation, or combination thereof or similar transaction, with
respect to interest rate, foreign exchange, currency, or commodity risk; (c) commercial
credit card and merchant card services; and (d) banking products or
services as may be requested by any Obligor, other than Letters of Credit.


 


3

















 


“Bankruptcy Code”
means the provisions of Title 11 of the United States Code, 11 U.S.C.
§§101 et seq.


 


“Bankruptcy Law”
means the Bankruptcy Code and any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law.


 


“Borrower” has
the meaning set forth in the preamble hereto.


 


“Business Day”
means any day of the year that is not a Saturday, a Sunday or a day on which
banks are required or authorized to close in New York City or Chicago,
Illinois.


 


“Cash Proceeds”  shall mean all proceeds of any Collateral
consisting of cash, checks and other near-cash items.


 


“Chattel Paper”  shall mean all “chattel paper” as defined
in Article 9 of the Uniform Commercial Code as in effect in the State of
New York from time to time, including, without limitation, “electronic chattel paper”
or “tangible chattel paper”, as each term is defined in the Uniform Commercial
Code as in effect in the State of New York from time to time.


 


“Collateral”
means all assets and properties of any kind whatsoever, real or personal,
tangible or intangible and wherever located, of any Obligor, whether now owned
or hereafter acquired, upon which a Lien (including, without limitation, any
Liens granted in any Insolvency Proceeding) is now or hereafter granted or
purported to be granted in favor of a Secured Creditor, as security for all or
any part of the Obligations, provided that as to the Existing Notes Creditors,
Collateral shall be limited to assets and properties in which the Existing
Notes Creditors have a Lien pursuant to the Existing Notes Documents as in
effect on the date hereof, and only the Proceeds thereof, and shall not include
any other assets and properties, or Proceeds thereof, on which the Revolving
Creditors or Term Loan Creditors may from time to time have a Lien to secure
their Obligations, and nothing in this Agreement shall be read to provide that
the Existing Notes Creditors have any right to acquire, or that any Obligor has
any obligation to provide to any Existing Notes Creditor, any Lien on any
assets and properties on which they do not have a Lien pursuant to the Existing
Notes Documents as in effect on the date hereof, or Proceeds thereof, or to
permit the granting of a Lien in favor of any Existing Notes Creditor on any
assets or properties where prohibited by Section 2.4(d) hereof.


 


“Company” has
the meaning set forth in the preamble hereto.


 


“Debt Action”
means (a) the filing of a lawsuit by any Secured Creditor solely to
collect the Obligations owed to such Secured Creditor and not to exercise
secured creditor remedies in respect of the Collateral, (b) the demand by
any Secured Creditor for accelerated payment of any and all of the Obligations
owed to such Secured Creditor, (c) the filing  of
any notice of claim and the voting of any such claim in any Insolvency
Proceeding involving an Obligor in a manner not prohibited by, and not
inconsistent with, the terms of Section 6, (d) the filing of
any motion in any Insolvency Proceeding permitted by, and not inconsistent
with, the terms of Section 6 or (e) the filing of any
defensive pleading in any Insolvency Proceeding not inconsistent with the terms
of this Agreement.


 


“DIP Financing”
has the meaning set forth in Section 6.1.


 


4

















 


“Disposition”
means any sale, lease, license, exchange, transfer or other disposition, and “Dispose” and “Disposed of”
shall have correlative meanings.


 


“Distribution”
means, with respect to any indebtedness or obligation of a Person, (a) any
payment or distribution by or on behalf of such Person (or any guarantor or
surety thereon) of cash, securities or other property, by setoff or otherwise,
on account of such indebtedness or obligation or (b) any redemption,
purchase or other acquisition of such indebtedness or obligation by such Person
(or any guarantor or surety thereon).


 


“Enforcement Action”
means (a) the exercise of any enforcement remedies under any Obligation
Document, the UCC or other applicable law in respect of the Collateral by the
applicable Secured Creditor, (b) any action by any Secured Creditor to
foreclose on the Lien of such Person in any Collateral, (c) any action by
any Secured Creditor to take possession of, or sell or otherwise realize upon,
or to exercise any other enforcement rights or remedies with respect to, any
Collateral, including any Disposition after the occurrence of an Event of
Default of any Collateral by an Obligor with the consent of, or at the
direction of, a Secured Creditor, including, without limitation, by
notification of account debtors, (d) the taking of any other actions by a
Secured Creditor against any Collateral, including the taking of control or
possession of, or the exercise of any right of setoff with respect to, any
Collateral and including the exercise of any voting rights relating to any
capital stock composing a portion of the Collateral and/or (e) the commencement
by any Secured Creditor of any legal proceedings or actions against or with
respect to any Obligor or any of such Obligor’s property or assets or any
Collateral to facilitate any of the actions described in clauses (a), (b), (c),
(d) and (e) above, including the commencement of any Insolvency
Proceeding; provided that this definition shall not include any Debt
Action.


 


“Event of Default”
means each “Event of Default” or similar term, as such term is defined in any
Term Loan Credit Document or any Revolving Credit Document.


 


“Excess Revolving Credit
Obligations”  means, as of
any date of determination, the sum of (a) the portion of the principal
amount of the loans outstanding under the Revolving Credit Documents and the
undrawn amount of all outstanding Letters of Credit (disregarding for purposes
of this calculation Letters of Credit to the extent cash collateralized in
accordance with the Revolving Credit Agreement) and, without duplication of
reimbursement obligations having been refinanced with proceeds of loans, the
unreimbursed amount of all Letters of Credit as of such date that is in excess
of the Maximum Revolving Credit Principal Amount as of such date plus (b) without
duplication, the portion of accrued and unpaid interest and fees on account of
such portion of the loans and Letters of Credit described in clause (a) of
this definition; provided, however, that any interest accruing
on, or fees or reimbursement obligations in respect of, out of pocket fees
(including legal fees and disbursements) or other expenses of the Revolving
Agent or other Revolving Creditors that are reimbursable by the Obligors under
the terms of the Revolving Credit Documents and that accrue, or are incurred,
after the occurrence of an Insolvency Proceeding or after the date when
Revolving Agent or the Term Loan Agent, as applicable, commences Enforcement
Action with respect to any of the Collateral shall not constitute Excess
Revolving Credit Obligations, regardless of whether any such amounts are added
to the principal balance of the loans pursuant to the terms of the Revolving
Credit 


 


5

















 


Documents.  Any
DIP Financing by the Revolving Creditors within the limits of Section 6.1(a)(iii)(A)
shall not constitute Excess Revolving Credit Obligations.


 


“Excess Term Obligations”
means, as of any date of determination, the sum of (a) the portion of the
principal amount of the loans outstanding under the Term Loan Credit Documents
as of such date that is in excess of the Maximum Term Loan Principal Amount as
such date plus (b) without duplication, the portion of accrued and unpaid
interest on account of such portion of the loans described in clause (a) of
this definition; provided, however, that any interest accruing
on, or reimbursement obligations in respect of, out of pocket fees (including
legal fees and disbursements) or other expenses of the Term Loan Agent or other
Term Loan Creditors that are reimbursable by the Obligors under the terms of
the Term Loan Credit Documents and that accrue, or are incurred, after the
occurrence of an Insolvency Proceeding or after the date when Revolving Agent
or the Term Loan Agent, as applicable, commences Enforcement Action with
respect to any of the Collateral shall not constitute Excess Term Obligations,
regardless of whether any such amounts are added to the principal balance of
the loans pursuant to the terms of the Term Loan Credit Documents. Any DIP
Financing by the Term Loan Creditors within the limits of Section 6.1(b)(iii)(A) shall
not constitute Excess Term Obligations.


 


“Exigent Circumstances”
means (a) a fraud has been committed by any Obligor in connection with the
Revolving Credit Obligations or Term Loan Obligations, as applicable, including
any withholding of collections of Accounts or other Proceeds or any other
property in violation of the terms of the Revolving Credit Documents or Term
Loan Credit Documents, as applicable, or (b) an event or circumstance that in
the judgment of the Revolving Agent materially and imminently threatens the
value of, or ability of the Revolving Agent to realize upon, its Priority
Collateral, or, in the judgment of the Term Loan Agent materially and
imminently threatens the value of, or ability to realize upon, its Priority
Collateral.


 


“Existing
Notes” means the notes issued and outstanding from time to time
under the Existing Notes Indenture.


 


“Existing
Notes Agent” means, collectively, the Existing Notes Trustee and/or
Existing Notes Collateral Agent under the Existing Notes Indenture and the
other Existing Notes Documents.


 


“Existing Notes Creditors”
means , at any time, the Existing Notes Agent, the “Holders” (as defined in the
Existing Notes Indenture), any other administrative agent under the Existing
Notes Indenture and any other Existing Notes Documents, any collateral agent
under the Existing Notes Indenture and any other Existing Notes Documents, each
lender or other creditor under the Existing Notes Indenture and any other
Existing Notes Documents, each holder of any Hedging Obligations that at the
time of the incurrence of such Hedging Obligations is a lender or other
creditor under the Term Loan Credit Agreement or an Affiliate thereof and is a
secured party under any Existing Notes Document, the beneficiaries of each
indemnification obligation undertaken by any Obligor under any Existing Notes
Document, and each other holder of, or obligee in respect of, any Existing
Notes Obligations, in each case to the extent designated as a secured party under
any Existing Notes Document outstanding at such time.


 


6

















 


“Existing
Notes Documents” means the Existing Notes Indenture and the Existing
Notes, and the “Escrow Agreement”, the “Note Guarantees”, the “Collateral
Agreements” and the other “Notes Documents”, each as defined in the Existing
Notes Indenture as in effect on [           ]
[       ], 20[    ].


 


“Existing
Notes Indenture” means the Indenture, dated as of November 9,
2006, between the Company and the other Obligors, and Wells Fargo Bank,
National Association, as trustee and collateral agent, relating to the Company’s
9.00% Convertible Senior Secured Notes due 2012.


 


“Existing Notes Noteholders” means the holders from time to time of the Existing Notes issued
and outstanding from time to time under the Existing Notes Indenture.


 


“Existing
Notes Obligations” means the Existing Notes and all other “Note
Obligations” (as defined in the Existing Notes Indenture) owing or outstanding
from time to time under the Existing Notes Indenture and the other Existing
Notes Documents.


 


“Existing Notes Refinancing
Conditions” means that the following conditions must be met with
respect to any applicable amendment, restatement, supplement, modification,
substitution, Refinancing, renewal or replacement of the Existing Notes
Documents: (i) it has a final maturity no sooner than, and a weighted
average life (measured as of the date of such amendment, restatement,
supplement, modification, substitution, Refinancing, renewal or replacement) no
less than that applicable to the Existing Notes Obligations on the date hereof;
(ii) in the case of any secured Refinancing, substantially concurrently
with the entry into definitive documentation evidencing such indebtedness, the
lenders thereunder shall enter into an intercreditor agreement on terms no less
favorable to the Revolving Creditors and the Term Loan Creditors than this
Agreement or execute an Intercreditor Agreement Joinder, (iii) Liens on no
categories of Collateral not subject to the Liens securing the Existing Notes
Obligations on the date hereof are granted to secure it; and (iii) no
additional Person is obligated on such indebtedness that is not obligated on
the Existing Notes Obligations on the date hereof, and (iv) it shall
contain no representations, warranties, covenants or events of default not
contained in the Existing Notes Indenture on the date hereof after giving
effect to the amendment thereof deleting such provisions on or about the date hereof,
unless consented to by the Revolving Agent and the Term Loan Agent at the
direction of the majority holders of the Revolving Credit Obligations and the
Term Loan Obligations, respectively, but in no event shall any representations,
warranties, covenants or events of default contained in the Existing Notes
Documents (with such consent as aforesaid) be (x) more restrictive in any
respect on any Obligor than the least restrictive analogous provisions in the
Revolving Credit Documents and the Term Loan Credit Documents or (y) address
substantive restrictions or other matters not contained in both the Revolving
Credit Documents and the Term Loan Credit Documents.


 


“Existing Notes Secured
Claim” means any portion of the Existing Notes Obligations.


 


“General Intangibles”  (i) shall
mean all “general intangibles” as defined in Article 9 of the UCC, including “payment intangibles” also as
defined in Article 9 of the Uniform Commercial Code as in effect in the
State of New York from time to time and (ii) shall 


 


7

















 


include, without limitation, all interest rate or
currency protection or hedging arrangements, all tax refunds and all licenses,
permits, concessions and authorizations, (in each case, regardless of whether
characterized as general intangibles under the Uniform Commercial Code as in
effect in the State of New York from time to time).


 


“Hedging Obligations”
means, with respect to any Obligor, any obligations of such Obligor under an
agreement relating to any non-speculative, ordinary course of business swap,
cap, floor, collar, option, forward, cross right or obligation, or combination
thereof or similar transaction, with respect to interest rate, foreign
exchange, currency or commodity risk.


 


“Insolvency Proceeding”
means any of the following: (a) any case or proceeding with respect to any
Obligor under the Bankruptcy Code or any other federal or state bankruptcy,
insolvency, reorganization or other law affecting creditors’ rights or any
other or similar proceedings seeking any stay, reorganization, arrangement,
composition or readjustment of the obligations and indebtedness of such
Obligor, in each case, whether or not voluntary, (b) any proceeding
seeking the appointment of any trustee, receiver, liquidator, custodian or
other insolvency official with similar powers with respect to any Obligor or
any of its assets in each case, whether or not voluntary, (c) any
proceeding for liquidation, dissolution or other winding up of the business of
the Company or any other Obligor whether or not voluntary and whether or not
involving bankruptcy or insolvency, that, in the case of an Obligor other than
the Company, is not permitted under the Revolving Credit Documents and the Term
Loan Credit Documents or (d) any assignment for the benefit of creditors
or any marshalling of assets of any Obligor.


 


“Intercreditor
Agreement Joinder” means an agreement substantially in the form of Exhibit A.


 


“Interim
Notes” means the notes issued and outstanding under the Interim
Notes Indenture.


 


“Interim
Notes Agent” means the trustee and/or collateral agent under the
Interim Notes Indenture and the other Interim Notes Documents.


 


“Interim Notes Indenture” means the Indenture, dated as of December 7, 2009,
between the Company and the other Obligors, and Wells Fargo Bank, National
Association, as trustee and collateral agent, relating to the Company’s 9.00%
Mandatorily Redeemable Convertible Senior Secured Notes due 2012.


 


“Interim Notes Documents” means the Interim Notes Indenture and the Interim Notes, and
the “Escrow Agreement”, the “Note Guarantees”, the “Collateral Agreements” and
the other “Notes Documents”, each as defined in the Interim Notes Indenture.


 


“Interim Notes Obligations” means the Interim Notes and all other “Note Obligations” (as
defined in the Interim Notes Indenture) owing or outstanding from time to time
under the Interim Notes Indenture and the other Interim Notes Documents.


 


“Inventory”  shall mean:
(i) all “inventory” as defined in the Uniform Commercial Code as in effect
in the State of New York from time to time and (ii) all goods held for
sale or lease or to be furnished under contracts of service or so leased or
furnished, all raw 


 


8

















 


materials, work in process, finished goods, and
materials used or consumed in the manufacture, packing, shipping, advertising,
selling, leasing, furnishing or production of such inventory or otherwise used
or consumed in  any  Obligor’s
business; all goods in which any  Obligor has an interest in mass or a
joint or other interest or right of any kind; and all such goods that are
returned to or repossessed by any Obligor, and all accessions thereto and
products thereof (in each case, regardless of whether characterized as
inventory under the Uniform Commercial Code as in effect in the State of New
York from time to time).  Inventory shall include each item of property
that at any time is or at any time was part of the rental fleet, whether
classified as “inventory,” “rental equipment” or “fixed asset” on the financial
statements of the Company.


 


“Junior Adequate Protection
Liens” has the meaning set forth in Section 6.2.


 


“Junior Lien Default Notice”
means a notice by the Term Loan Agent to the Revolving Agent or by the
Revolving Agent to the Term Loan Agent, indicating that an Event of Default
under the Term Loan Credit Documents or Revolving Credit Documents,
respectively, has occurred and that the Term Loan Agent or Revolving Agent, as
the case may be, intends to take Enforcement Action against Collateral (other than
Collateral that as to such Secured Creditor, is Priority Collateral).


 


“Junior Documents”
means (i) as to the Revolving Credit Priority Collateral, the Term Loan
Credit Documents, (ii) as to the Term Loan Priority Collateral, the Revolving
Credit Documents, and (iii) as to all Collateral, at all times prior to
Payment in Full of the Term Loan Obligations and the Revolving Credit
Obligations, the Existing Notes Documents.


 


“Junior Obligations”
means (i) as to the Term Loan Priority Collateral, the Revolving Credit
Obligations, (ii) as to the Revolving Credit Priority Collateral, the Term
Loan Obligations, and (iii) as to all Collateral, at all times prior to
Payment in Full of the Term Loan Obligations and the Revolving Credit
Obligations, the Existing Notes Obligations. Junior Obligations also means as
to Term Loan Priority Collateral, any Excess Term Obligations, and as to any
Revolving Credit Priority Collateral, any Excess Revolving Credit Obligations.


 


“Junior Secured Creditor”
means, as to the Term Loan Priority Collateral, the Revolving Agent acting on
behalf of itself and the Revolving Creditors, and as to the Revolving Credit
Priority Collateral, the Term Loan Agent acting on behalf of itself and the
Term Loan Creditors, and as to all Collateral, at all times prior to Payment in
Full of the Term Loan Obligations and the Revolving Credit Obligations, the
Existing Notes Creditors.  Junior Secured
Creditor also means the Revolving Agent acting on behalf of itself and the
Revolving Creditors as to its Lien on Revolving Credit Priority Collateral to
the extent securing Excess Revolving Credit Obligations and the Term Loan Agent
acting on behalf of itself and the Term Loan Creditors as to its Lien on Term
Loan Priority Collateral to the extent securing Excess Term Obligations.


 


“L/C Issuer”
means any bank or financial institution that issues, arranges or provides
credit support for a Letter of Credit issued or deemed issued pursuant to the
Revolving Credit Agreement.


 


9

















 


“Letters of Credit”
means any standby or documentary letter of credit issued or arranged by L/C
Issuer for the account of Borrower, or any indemnity, guarantee, exposure
transmittal memorandum or similar form of credit support issued or arranged by
Revolving Agent or L/C Issuer for the benefit of Borrower.


 


“Lien” means any
mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit
arrangement, encumbrance, easement, lien (statutory or otherwise), security
interest or other security arrangement and any other preference, priority or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale contract or other title retention arrangement, the interest of
a lessor under a capital lease and any synthetic or other financing lease
having substantially the same economic effect as any of the foregoing.


 


“Mandatory Redemption”
means “Mandatory Redemption”, as defined in the New Notes Indenture.


 


“Mandatory Redemption Date”
means “Mandatory Redemption Date”, as defined in the New Notes Indenture.


 


“Maximum Revolving Credit
Principal Amount” means, as of any date of determination, (a) $20,000,000,
minus (b) permanent reductions of
revolving loan commitments under the Revolving Credit Documents after the date
hereof that are accompanied by principal payments outstanding under such
commitments (other than those made in connection with a Refinancing permitted
under Section 4.2), plus  (c) accrued
and unpaid interest and fees (excluding any portion of interest and fees referred
to in clause (b) of the definition of Excess Revolving Credit Obligations), and
costs, expenses, indemnities, and other amounts (other than principal, unless
constituting amounts of interest and fees that are added to principal) payable
pursuant to the terms of the Revolving Credit Documents, whether or not, in the
case of interest or fees, the same are added to the principal amount of the
Revolving Credit Obligations and including the same as would accrue and become
due but for the commencement of an Insolvency Proceeding, whether or not
allowed in any such Insolvency Proceeding, plus  (d) advances
(whether or not added to the principal of the revolving loan) made by the
Revolving Lenders or the Revolving Agent in order to protect, preserve or
enhance the value of any Revolving Credit Priority Collateral or to pay amounts
that the Borrower is obligated to pay under the Revolving Credit Documents to
protect the Collateral, plus (e) Bank
Product Obligations, plus (f) Hedging
Obligations to a Revolving Creditor.


 


“Maximum Term Loan
Principal Amount” means, as of any date of determination, (a) $                   ,
minus (b) the sum of all principal
payments of the term loans constituting Term Loan Obligations (including
voluntary and mandatory prepayments) after the date hereof, but excluding
prepayments resulting from any Refinancing permitted under Section 4.1,
plus  (c) accrued and unpaid
interest and fees (excluding any portion of interest and fees referred to in
clause (b) of the definition of Excess Term Obligations) and costs,
expenses, indemnities, and other amounts (other than principal, unless
constituting amounts of interest and fees that are added to principal) payable
pursuant to the terms of the Term Loan Credit Documents, whether or not, in the
case of interest or fees, the same are added to the principal amount of the
Term Loan Obligations and including the same as would accrue and become due but
for the commencement of an Insolvency Proceeding, whether or not allowed in any
such 


 


10

















 


Insolvency Proceeding, plus
(d) advances (whether or not added to the principal of the term loans) made
by the Term Lenders or the Term Loan Agent in order to protect, preserve or
enhance the value of any Term Loan Priority Collateral or to pay amounts that
any Obligor is obligated to pay under the Term Credit Documents to protect the
Collateral, plus (e) all Term Loan
Hedging Obligations not included in clause (a).(1)


 


“New License Subsidiary” has the meaning specified therefor in the New Notes
Indenture.


 


“New Notes”
means the notes issued and outstanding from time to time under the New Notes
Indenture, including any notes issued in lieu of interest and in respect of
capitalized, or “pay in kind”, interest accruing on any such notes outstanding
from time to time in accordance with the New Notes Indenture.


 


“New Notes Agent” means the New Notes Trustee and/or New Notes Collateral
Agent under the New Notes Indenture and the other New Notes Documents.


 


“New Notes Indenture” means the Indenture, dated as of [             ],
20[    ], between the Company and the other Obligors, and
Wells Fargo Bank, National Association, as trustee and collateral agent,
relating to the Company’s 9.00% Senior Secured Notes due 20[   ],
to be substantially in the form of Exhibit [     ]
hereto.


 


“New Notes Documents” means the New Notes Indenture and the New Notes, and the “Escrow
Agreement”, the “Note Guarantees”, the “Collateral Agreements” and the other “Notes
Documents”, each as defined in the New Notes Indenture.


 


“New Notes Obligations” means the New Notes and all other “Note Obligations” (as
defined in the New Notes Indenture) owing or outstanding from time to time
under the New Notes Indenture and the other New Notes Documents.


 


“New Notes Noteholders” means the holders from time to time of the New Notes issued
and outstanding from time to time under the New Notes Indenture.


 


“Non-Priority Collateral”
means (i) as to the Term Loan Creditors, the Revolving Credit Priority
Collateral, (ii) as to the Revolving Creditors, the Term Loan Priority
Collateral, and (iii) as to the Existing Notes Creditors, any and all
Collateral.  Non-Priority Collateral
shall also mean, as to the Term Loan Creditors, the Term Loan Priority
Collateral to the extent securing Excess Term Obligations, and as to the
Revolving Creditors, the Revolving Credit Priority Collateral to the extent
securing the Excess Revolving Credit Obligations.


 


“Obligation Documents”
means the Revolving Credit Documents and the Term Loan Credit Documents and the
Existing Notes Documents, or any of them.


 


“Obligations”
means the Term Loan Obligations and the Revolving Credit Obligations and the
Existing Notes Obligations, or any of them.


 


 


11
















 


“Obligor” means
the Company and each other Person liable on or in respect of any Obligations,
or that has granted a Lien on any property or assets as Collateral, together
with such Person’s successors and assigns, including a receiver, trustee or
debtor-in-possession on behalf of such Person.


 


“Paid in Full”
or “Payment in Full” means, with respect to
any Obligations, that: (a) all of such Obligations (other than contingent
indemnification obligations for which no underlying claim has been asserted)
have been paid, performed or discharged in full (with all such Obligations
consisting of monetary or payment obligations having been paid in full in
cash), (b) no Person has any further right to obtain any loans, letters of
credit, bankers’ acceptances, or other extensions of credit under the Revolving
Credit Agreement or the other Revolving Credit Documents in the case of
Revolving Credit Obligations or the Term Loan Credit Agreement or the other
Term Loan Credit Documents in the case of the Term Loan Obligations and all
commitments to extend credit under such applicable agreements shall have
terminated, (c) any and all letters of credit, bankers’ acceptances or
similar instruments issued under such documents have been cancelled and
returned (or backed by stand-by guarantees or letters of credit in form and
substance reasonably acceptable to (and from financial institutions
satisfactory to) Revolving Agent or Term Loan Agent, as applicable, or cash
collateralized at the amounts required to obtain a release of liens under the
terms of the applicable Revolving Credit Documents) in accordance with the
terms of such documents, and (d) any costs, expenses and indemnification
obligations not yet due and payable but with respect to which a claim has been
threatened or asserted in writing under any Obligation Document, are backed by
a letter of credit or cash collateral in an amount and on terms reasonably
satisfactory to the Term Loan Agent or Revolving Agent, as applicable.


 


“Payment Rights”
means any right of any Obligor to the payment of money arising from the
Disposition of any Inventory or rendition of services, whether such right to
payment constitutes an Account or Payment Intangible or is evidenced by or
consists of a Document, Instrument, Chattel Paper, Letter-of-Credit Right or
Supporting Obligation.


 


“Permitted Collateral Sale”
means (i) any Disposition of Priority Collateral (other than after the
occurrence and during the continuance of an Insolvency Proceeding by or against
the relevant Obligor and other than in connection with an Enforcement Action or
a Disposition described in clause (ii) below) so long as such Disposition
is permitted under the Priority Documents as in effect on the date hereof and
by the Junior Documents as in effect on the date hereof (other than, in the
case of the New Notes Indenture, pursuant to Section 6.01 thereof); and (ii) any
Disposition of Priority Collateral (other than in an Insolvency Proceeding by
or against the relevant Obligor) permitted under the applicable Priority
Documents as in effect on the date hereof, but not permitted under the
applicable Junior Document, in connection with an Enforcement Action against
such Priority Collateral by the relevant Priority Secured Creditor or a
Disposition by the relevant Obligor during the continuation of an Event of
Default under the Priority Documents with the written permission of the
Priority Secured Creditor; provided, that, in each case above, the Liens
of the Junior Secured Creditors in such Priority Collateral shall continue as
to the Proceeds thereof and such Proceeds received are applied as provided in Section 3.8
hereof.


 


12

















 


“Person” means
an individual, partnership, corporation (including a business trust and a
public benefit corporation), joint stock company, estate, association, firm,
enterprise, trust, limited liability company, unincorporated association, joint
venture, governmental authority or any other entity or regulatory body.


 


“Primary Junior Secured
Creditor” means a Junior Secured Creditor of the type described in
the first sentence of the definition of “Junior Secured Creditor”.


 


“Primary Priority Secured
Creditor” means a Priority Secured Creditor of the type described in
the first sentence of the definition of “Priority Secured Creditor”.


 


“Priority Claim Avoidance”
has the meaning set forth in Section 6.4.


 


“Priority Collateral”
means, as to the Term Loan Creditors, the Term Loan Priority Collateral, and,
as to the Revolving Creditors, the Revolving Credit Priority Collateral, and,
as to the Existing Notes Creditors, none of the Collateral.  Priority Collateral also means, as to any
Revolving Creditors, the Term Loan Priority Collateral to the extent securing
Excess Term Obligations and as to any Term Loan Creditors, the Revolving Credit
Priority Collateral to the extent securing Excess Revolving Credit Obligations;
provided that the right of the Term Loan Creditors to take any
Enforcement Action with respect to their Non-Priority Collateral, and the right
of the Revolving Creditors to take any Enforcement Action with respect to their
Non-Priority Collateral, and the right of the Existing Notes Creditors to take
any Enforcement Action with respect to their Non-Priority Collateral shall in
each case be subject to the provisions of Section 3.


 


“Priority Documents”
means, as to the Revolving Credit Priority Collateral, the Revolving Credit
Documents and as to the Term Loan Priority Collateral, the Term Loan Credit
Documents.  The Existing Notes Documents
shall not constitute Priority Documents for any purpose of this Agreement. at
any time prior to the Payment in Full of all Term Loan Obligations and all
Revolving Credit Obligations, and all Revolving Credit Documents and Term Loan
Credit Documents shall both constitute Priority Documents as they relate to the
Existing Notes Documents, the Existing Notes Obligations or the Existing Notes
Creditors, or any Liens in favor of the Existing Notes Creditors, for all
purposes of this Agreement.


 


“Priority Obligations”
means, as to the Term Loan Priority Collateral, the Term Loan Obligations and
as to the Revolving Credit Priority Collateral, the Revolving Credit
Obligations.  The Existing Notes
Obligations shall not constitute Priority Obligations for any purpose of this
Agreement at any time prior to the Payment in Full of all Term Loan Obligations
and all Revolving Credit Obligations, and all Revolving Credit Obligations and
Term Loan Obligations shall both constitute Priority Obligations as they relate
to the Existing Notes Obligations or the Existing Notes Creditors, or any Liens
in favor of the Existing Notes Creditors, for all purposes of this Agreement.


 


“Priority Secured Creditor”
means, as to the Term Loan Priority Collateral, the Term Loan Agent, and as to
the Revolving Credit Priority Collateral, the Revolving Agent.  The Existing Notes Creditors shall not
constitute Priority Secured Creditors for any purpose of this Agreement at any
time prior to the Payment in Full of all Term Loan Obligations and all 


 


13

















 


Revolving Credit Obligations, and the Term Loan Agent
and the Revolving Agent shall both constitute Priority Security Creditors as
they relate to the Existing Notes Obligations or the Existing Notes Creditors,
or any Liens in favor of the Existing Notes Creditors, for all purposes of this
Agreement.


 


Priority Secured Creditor also means, as to Term Loan
Priority Collateral, to the extent securing Excess Term Obligations, the
Revolving Agent, and as to Revolving Credit Priority Collateral, to the extent
securing Excess Revolving Credit Obligations, the Term Loan Agent.  A Person’s rights as a Priority Secured
Creditor described in the second sentence of this definition shall be limited
as set forth in the definition of Secondary Priority Secured Creditor and the
other applicable provisions hereof.


 


“Proceeds”  of
Collateral shall mean: (i) all “proceeds”, as defined in Article 9 of
the Uniform Commercial Code as in effect in the State of New York from time to
time, (ii) payments or distributions made with respect to such Collateral
and (iii) whatever is receivable or received when such Collateral or proceeds
thereof is sold, leased, licensed, exchanged, collected or otherwise disposed
of, whether such disposition is voluntary or involuntary.  Proceeds shall not include, as to any
Existing Notes Creditor, Proceeds of any Collateral on which the Existing Notes
Creditor do not have a valid and perfected Lien, or on which they may acquire a
Lien in violation of the provisions hereof, including Section 2.4(d) hereof


 


“Refinance”, “Refinancings” and “Refinanced”
means, in respect of any Obligations, to issue other indebtedness in exchange
or replacement for or the proceeds of which are used to repay such Obligations,
in whole or in part.


 


“Release Documents”
has the meaning set forth in Section 2.6.


 


“Release Event”
means the taking of any Enforcement Action by a Secured Creditor against all or
any portion of Collateral that is Priority Collateral as to such Secured
Creditor (including a Disposition conducted by any Obligor with the express
written consent of such Secured Creditor during the continuance of an Event of
Default under the relevant Priority Documents) or, after the occurrence and
during the continuance of an Insolvency Proceeding by or against any Obligor,
the entry of an order of the Bankruptcy Court pursuant to Section 363 or
1129 of the Bankruptcy Code (or similar Bankruptcy Law) authorizing the sale of
all or any portion of such Collateral with the support of such Secured Creditor;
provided, that, upon any such sale, the Liens of the Junior Secured
Creditors in the Collateral shall continue as to the Proceeds thereof, and,
subject to any necessary approvals of any applicable Bankruptcy Court, such
Proceeds received are applied as provided in Section 3.8 hereof, .


 


“Revolver Cash Collateral”
has the meaning set forth in Section 6.1.


 


“Revolver Purchase Option
Closing Date” has the meaning set forth in Section 5.1.


 


“Revolving Agent”
means the collateral agent (or the administrative agent acting as collateral
agent) under any Revolving Credit Agreement, and its successors and assigns in
such capacity and, from and after the execution of a Revolving Credit
Substitute Facility, one or more other agents, collateral agents, trustees or
similar contractual representatives for one or 


 


14

















 


more holders of indebtedness or other Obligations
evidenced thereunder or governed thereby and its successors and assigns in such
capacity, but in no event shall any Obligor or Affiliate thereof be, or
appoint, the Revolving Agent.


 


“Revolving Agent’s Purchase
Notice” has the meaning set forth in Section 5.2.


 


“Revolving Credit Agreement”
means (a) the initial Revolving Credit Agreement, if any, entered into by
the Company, designated as the “Revolving Credit Agreement” for purposes of
this Agreement by written notice from the Company to the Term Loan Agent, and
permitted to be entered into under the terms of the Term Loan Credit Agreement
then in effect, and otherwise complying with the provisions hereof and (i) providing
for Liens on no categories of Collateral not subject to the Liens securing the
Term Loan Obligations are granted to secure it unless such categories of
Collateral also secure the Term Loan Obligations; (ii) providing that no
additional Person is obligated on the indebtedness under such Revolving Credit
Agreement unless such additional Person also is or becomes a pari passu obligor
on the Term Loan Obligations; (iii) not including any limitations on the
ability of the Company and the other Obligors to make payments under any Term
Loan Credit Document, (iv) not providing for aggregate extensions of
credit thereunder at any time that exceed the Maximum Revolving Credit
Principal Amount and (v) being subject to the condition that no “Default”
or “Event of Default” (as defined in the Term Loan Credit Agreement as then in
effect) exists, and (b) each Revolving Credit Substitute Facility, if any, in
each case as amended, restated, supplemented, replaced, substituted or
Refinanced in accordance with the terms of this Agreement and permitted to be
entered into under the terms of the Term Loan Credit Agreement then in effect,
and otherwise complying with the provisions hereof and providing for extensions
of credit not exceeding the Maximum Revolving Credit Principal Amount,
provided, however, that in each case in clause (a) and (b) above, (x) the
Revolving Agent thereunder shall have duly executed and delivered to each other
party hereto a signed counterpart of this Agreement and shall be irrevocably
and validly entitled under the terms of such Revolving Credit Agreement to bind
the Revolving Creditors to all of the terms and conditions hereof by such
execution and delivery and (y) in no event shall any Obligor or Affiliate
thereof be permitted to be a Revolving Creditor thereunder.


 


“Revolving Credit Documents”
means the Revolving Credit Agreement, if any, all other agreements, documents
and instruments at any time executed and/or delivered by the Company or any
other Person with, to or in favor of the Revolving Agent or any Revolving
Creditor in connection therewith or related thereto, if any, including such
documents evidencing successive Refinancings of the Revolving Credit
Obligations, if any, in each case, as amended, amended and restated,
supplemented, modified, replaced, substituted or renewed from time to time in
accordance with the terms of this Agreement (provided that the aggregate
extensions of credit thereunder at any time shall not exceed the Maximum
Revolving Credit Principal Amount).


 


“Revolving Credit
Obligations” means all “Obligations” as defined in the Revolving
Credit Agreement, if any, provided that the aggregate extensions of credit
thereunder at any time shall not exceed the Maximum Revolving Credit Principal
Amount, and including without limitation all Banking Product Obligations and
Hedging Obligations, all obligations to post cash collateral in respect of
Letters of Credit or indemnities in respect thereof, and all other 


 


15

















 


obligations, liabilities and indebtedness of every
kind, nature and description owing by the Company to the Revolving Agent and
the other Revolving Creditors evidenced by or arising under one or more of the
Revolving Credit Documents (including the Revolving Loans and letter of credit
obligations), whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or unliquidated,
including principal, interest, charges, fees, costs, indemnities and reasonable
expenses, however evidenced, whether as principal, surety, endorser, guarantor
or otherwise, whether now existing or hereafter arising, whether arising
before, during or after the initial or any renewal term of the Revolving Credit
Agreement and whether arising before, during or after the commencement of any
Insolvency Proceeding with respect to the Company (and including the payment of
interest, fees, costs and other charges (including default rate interest) which
would accrue and become due but for the commencement of such Insolvency
Proceeding, but in the case of default rate interest and other amounts accruing
or payable in excess of basic contract rates specified in the Revolving Credit
Documents, only to the extent such amounts are allowed in any such Insolvency
Proceeding), exclusive of the Excess Revolving Credit Obligations, which Excess
Revolving Credit Obligations, if any, shall be excluded from (and shall not
constitute) Revolving Credit Obligations solely for purposes of this Agreement.


 


“Revolving Credit
Obligations Purchaser” has the meaning set forth in Section 5.1.


 


“Revolving Credit Priority
Collateral” means, all present and future right, title and interest
of the Company and each other Obligor in and to the following, whether now
owned or hereafter acquired, existing or arising, and wherever located:


 


(a)           all
Accounts and Payment Rights (and all Instruments, Chattel Paper,
Letter-of-Credit Rights, Supporting Obligations, and Documents evidencing the
obligation of any account debtor to pay any obligation that constitutes an
Account or Payment Right);


 


(b)           to the
extent not otherwise included above, all Payment Intangibles, Instruments,
Chattel Paper, Investment Property and Documents, in each case in this clause (b) evidencing,
derived from, constituting or relating to the property described in clause (a) above
or Proceeds or products thereof;


 


(c)           Money
(other than identifiable Proceeds of Term Loan Priority Collateral), Deposit
Accounts (except for identifiable Proceeds of Term Loan Priority Collateral
contained therein, and other than the Term Loan Priority Collateral Account
(other than identifiable Proceeds of Revolving Credit Priority Collateral
contained therein)), Securities Accounts containing Proceeds of property
described in clause (a) or (b) above (except for identifiable
Proceeds of Term Loan Priority Collateral contained therein) and all lock-boxes
at any bank containing Proceeds of property described in clause (a) or (b) above
(except for identifiable Proceeds of Term Loan Priority Collateral contained
therein, and other than the Term Loan Priority Collateral Account (other than
identifiable Proceeds of Revolving Credit Priority Collateral contained
therein)), including, except as otherwise provided herein, Proceeds of property
described in clause (a) or (b) above consisting of Money and
Certificated Securities, Uncertificated Securities, Securities Entitlements and
Investment Property or other assets credited to or deposited in any such
Deposit Account or Securities Account (including Proceeds 


 


16

















 


of property described in clause (a) or (b) above
constituting cash, cash equivalents, marketable securities and other funds held
in or on deposit in any such Deposit Account or Securities Account), but
excluding in each case above the Term Loan Priority Collateral Account (other
than identifiable Proceeds of Revolving Credit Priority Collateral contained
therein) and identifiable Proceeds of Term Loan Priority Collateral;


 


(d)           books,
Records, documents, ledger cards, computer programs, software and other
property, in each case, to the extent related to any of the foregoing; and


 


(e)           all
Proceeds of any of the Revolving Credit Priority Collateral described in
clauses (a) through (d) above, in any form (including any insurance
proceeds in respect of any or all of the foregoing).


 


Without limitation of the foregoing, property of a type
described in any one or more of the foregoing clauses (a) through (e) and
acquired by an Obligor, or created, after the commencement of an Insolvency
Proceeding with respect to such Obligor, and which, but for the application of Section 552
of the Bankruptcy Code, would constitute Collateral, shall, for the purposes of
this Agreement, nonetheless constitute “Revolving Credit Priority Collateral.”


 


“Revolving Credit
Refinancing Conditions” means that the following conditions must be
met with respect to any applicable amendment, restatement, supplement,
modification, substitution, Refinancing, renewal or replacement of the
Revolving Credit Documents: with respect to any such amendment, restatement,
supplement, modification, substitution, Refinancing, renewal or replacement: (i)
in the case of any secured Refinancing, substantially concurrently with the
entry into of definitive documentation evidencing such indebtedness, the
lenders thereunder shall enter into an intercreditor agreement on terms no less
favorable to the Term Loan Creditors than this Agreement or execute an Intercreditor
Agreement Joinder, (ii) Liens on no categories of Collateral not subject
to the Liens securing the Term Loan Obligations are granted to secure it unless
such categories of Collateral also secure the Term Loan Obligations; (iii) no
additional Person is obligated on such indebtedness unless such additional
Person also is or becomes an obligor on the Term Loan Obligations; (iv) it
does not include any limitations on the ability of the Company to make payments
under any Term Loan Credit Document, (iv) it does not provide for
aggregate extensions of credit thereunder at any time that exceed the Maximum
Revolving Credit Principal Amount and (vi) in the case of a Refinancing,
immediately after giving effect to such Refinancing, no “Default” or “Event of
Default” (as defined in the Term Loan Credit Agreement as then in effect)
exists.


 


“Revolving Credit Secured
Claim” means any portion of the Revolving Credit Obligations.


 


“Revolving Credit
Substitute Facility” means any facility that Refinances the Revolving
Credit Agreement then in existence pursuant to Section 4.2.  For the avoidance of doubt, no Revolving
Credit Substitute Facility shall be required to be a revolving or asset-based
loan facility and may be a facility evidenced or governed by a credit
agreement, loan agreement, note agreement, promissory note, indenture or any
other agreement or instrument; provided that any such Revolving Credit
Substitute Facility shall be subject to the terms of this Agreement for all
purposes set forth herein (including the Lien priorities as set forth herein as
of the date hereof 


 


17

















 


and provided that such facility does not provide for
aggregate extensions of credit thereunder at any time that exceed the Maximum
Revolving Credit Principal Amount ).


 


“Revolving Credit
Termination Date” means the date on which all Revolving Credit
Obligations have been Paid in Full.


 


“Revolving Creditors”
means , at any time, if any, the Revolving Agent, the Revolving Lenders, the
administrative agent under the Revolving Credit Agreement, the collateral Agent
under the Revolving Credit Agreement, each lender, issuing bank and swingline
lender under the Revolving Credit Agreement, each holder of any Hedging
Obligations and Banking Product Obligations that at the time of the incurrence
of such Hedging Obligations or Banking Product Obligations is a lender under
the Revolving Credit Agreement or an Affiliate thereof and is a secured party
under any Revolving Credit Document, the beneficiaries of each indemnification
obligation undertaken by any Obligor under any Revolving Credit Document, each
other Person that provides letters of credit, guarantees or other credit
support related thereto under any Revolving Credit Document and each other holder
of, or obligee in respect of, any Revolving Credit Obligations (including
pursuant to an Revolving Credit Substitute Facility), in each case to the
extent designated as a secured party under any Revolving Credit Document
outstanding at such time, but in no event shall any Obligor or Affiliate
thereof be or become a Revolving Creditor.


 


“Revolving Lenders”
means the lenders from time to time party from time to time to a Revolving
Credit Agreement, if any, but in no event shall any Obligor or Affiliate thereof
be or become a Revolving Lender.


 


“Revolving Loans”
means the loans, if any, outstanding under the Revolving Credit Documents from
time to time.


 


“Secondary Junior Secured
Creditor” means a Junior Secured Creditor of the type described in
the second sentence of the definition of “Junior Secured Creditor”.


 


“Secondary Priority Secured
Creditor” means a Priority Secured Creditor of the type described in
the second sentence of the definition of “Priority Secured Creditor”.  As more fully set forth in Section 2.1,
(i) the Term Loan Agent in its capacity as Secondary Priority Secured
Creditor shall not take any Enforcement Action or actions hereunder with
respect to the Revolving Credit Priority Collateral prior to the Revolving
Credit Termination Date; and (ii) the Revolving Agent in its capacity as
Secondary Priority Secured Creditor shall not take any Enforcement Action or
other action hereunder with respect to the Term Loan Priority Collateral prior
to the Term Loan Termination Date.


 


“Secured Creditors” means the
Term Loan Creditors and the Revolving Creditors and the Existing Notes
Creditors, or any of them.


 


“Senior Adequate Protection
Liens” has the meaning set forth in Section 6.2.


 


“Standstill Period”
means the period commencing on the date of an Event of Default and ending upon
the date which is the earlier of (a) 180 days after the later of (i) the
date the Junior Secured Creditor has declared an Event of Default under its
Obligation Documents 


 


18

















 


and has accelerated its Junior Obligations and (ii) the
date that the Priority Secured Creditor has received a Junior Lien Default
Notice with respect to such Event of Default stating that the Junior
Obligations have been declared due and payable and (b) the date on which
the Priority Obligations of such Priority Secured Creditor have been Paid in
Full; provided that (i) in the event that as of any day during such
180  days, no Event of Default in respect
of the Junior Obligations is continuing, then the Standstill Period shall be
deemed not to have commenced and (ii) the 180 day period specified above
shall be tolled during any period an Insolvency Proceeding has occurred and is
continuing.


 


“Term Lenders”
means the “Lenders” or “Term Lenders” or “Holders” or “Noteholders” (or
comparable term) under and as defined in any Term Loan Credit Agreement.


 


“Term Loan”
means each term loan or other loan or extension of credit made or outstanding
under the Term Loan Credit Documents from time to time.


 


“Term Loan Agent”
means (i) so long as New Notes Obligations are outstanding under the New
Notes Documents, the New Notes Agent, (ii) and after all New Notes
Obligations have been Paid in Full, and so long as Term Loan Obligations are
outstanding under any Term Loan Substitute Facility or the agreements and other
documents securing, guaranteeing, evidencing, governing or otherwise relating
to the foregoing, in each case, as amended, amended and restated, supplemented,
modified, replaced, substituted or renewed from time to time in accordance with
the terms of this Agreement, one or more other agents, collateral agents,
trustees or similar contractual representatives for one or more holders of
indebtedness or other Term Loan Obligations outstanding thereunder or in respect
thereof from time to time.


 


“Term Loan Agent’s Purchase
Notice” has the meaning set forth in Section 5.1.


 


“Term Loan Credit
Agreement” means (a) the New Notes
Indenture and (b) upon Payment in Full of the New Notes Obligations
outstanding under the New Notes Indenture, the credit agreement, loan
agreement, note agreement, promissory note, indenture or any other agreement or
instrument primarily evidencing or governing each Term Loan Credit Substitute
Facility, in each case as the same may from time to time be amended, amended
and restated, supplemented, modified, replaced, substituted, renewed or
Refinanced in accordance with the terms of this Agreement.


 


“Term Loan Credit Documents”
means the Term Loan Credit Agreement, all New Notes Documents, and all other
agreements, documents and instruments at any time executed and/or delivered by
any Obligor or any other Person with, to or in favor of the Term Loan Agent or
any other Term Loan Creditor in connection therewith or related thereto,
including such documents evidencing successive Refinancings of the Term Loan
Obligations, and any Term Loan Credit Substitute Facility, and all agreements
and other documents securing, guaranteeing, evidencing, governing or otherwise
relating to any of the foregoing, in each case, as amended, amended and
restated, supplemented, modified, replaced, substituted or renewed from time to
time in accordance with the terms of this Agreement.


 


“Term Loan Credit
Substitute Facility” means any facility that Refinances the Term
Loan Credit Agreement then in existence pursuant to Section 4.1.  For the avoidance of 


 


19

















 


doubt, the Term Loan Credit Substitute Facility may be
a facility evidenced or governed by a credit agreement, loan agreement, note
agreement, promissory note, indenture or any other agreement or instrument; provided
that any such Term Loan Substitute Facility shall be subject to the terms of
this Agreement for all purposes set forth herein (including the Lien priorities
as set forth herein as of the date hereof).


 


“Term Loan Creditors”
means , at any time, the Term Loan Agent, the Term Lenders, the administrative
agent under the Term Loan Credit Agreement and any other Term Loan Credit
Documents, the collateral agent under the Term Loan Credit Agreement and any
other Term Loan Credit Documents, each lender, noteholder or other creditor
under the Term Loan Credit Agreement, each holder of any Term Loan Hedging
Obligations that at the time of the incurrence of such Hedging Obligations is a
lender or noteholder under the Term Loan Credit Agreement or an Affiliate
thereof and is a secured party under any Term Loan Credit Document, the
beneficiaries of each indemnification obligation undertaken by any Obligor
under any Term Loan Credit Document, and each other holder of, or obligee in
respect of, any Term Loan Obligations (including pursuant to a Term Loan Credit
Substitute Facility), in each case to the extent designated as a secured party
under any Term Loan Credit Document outstanding at such time.


 


“Term Loan Hedging
Obligation” means any Hedging Obligations owed by the Borrower to
the Term Loan Creditors or any of their Affiliates pursuant to agreements
entered into in connection with any Term Loan Credit Agreement.


 


“Term Loan Obligations”
means all obligations, liabilities and indebtedness of every kind, nature and
description owing by the Company and each other Obligor under the Term Loan
Credit Documents, whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or unliquidated,
including principal, interest, charges, fees, costs, indemnities and reasonable
expenses, however evidenced, and whether as principal, surety, endorser,
guarantor or otherwise, whether now existing or hereafter arising, whether
arising before, during or after the initial or any renewal term of the Term
Loan Credit Agreement and whether arising before, during or after the
commencement of any Insolvency Proceeding with respect to the Company or any other
Obligor (as such term is defined in the Term Loan Credit Agreement) (and
including the payment of any interest, fees, costs and other charges (including
default rate interest) which would accrue and become due but for the
commencement of such Insolvency Proceeding, but in the case of default rate
interest and other amounts accruing or payable in excess of basic contract
rates specified in the Term Loan Credit Documents, only to the extent such
amounts are allowed in any such Insolvency Proceeding), exclusive of the Excess
Term Obligations, which Excess Term Obligations shall be excluded from (and
shall not constitute) Term Loan Obligations solely for purposes of this
Agreement.


 


“Term Loan Priority
Collateral” means all Collateral other than Revolving Credit
Priority Collateral.  Without limitation
of the foregoing, property not of a type described in the definition of “Revolving
Credit Priority Collateral,” and acquired by an Obligor, or created, after the
commencement of an Insolvency Proceeding with respect to such Obligor, and
which, but for the application of Section 552 of the Bankruptcy Code,
would constitute Collateral, shall, for the purposes of this Agreement,
nonetheless constitute “Term Loan Priority Collateral.” Notwithstanding the
foregoing, in no event shall property that is otherwise Term 


 


20

















 


Loan Priority Collateral constitute Revolving Credit
Priority Collateral due to the fact that it was acquired by the Company or any
other Obligor with the Proceeds of Revolving Credit Priority Collateral.


 


“Term Loan Priority
Collateral Account” means any deposit account established or
maintained by an Obligor or the Term Loan Agent or any representative of either
of the foregoing for the sole purpose of holding the identifiable Proceeds of
any Disposition of Term Loan Priority Collateral that are required to be held
in such account or accounts pursuant to the terms of any Term Loan Credit
Document as in effect on the date hereof (or any comparable provision of any
successor Term Loan Credit Document).


 


“Term Loan Purchase Option
Closing Date” has the meaning set forth in Section 5.2.


 


“Term Loan Refinancing
Conditions” means that the following conditions must be met with
respect to any applicable amendment, restatement, supplement, modification,
substitution, Refinancing, renewal or replacement of the Term Loan Credit
Documents if a Revolving Credit Agreement then exists and the Revolving Agent
is a party hereto: (i) it has a final maturity no sooner than (unless such
final maturity is more than six months after the stated final maturity of the
Revolving Credit Obligations as in effect on the date hereof) and a weighted
average life (measured as of the date of such amendment, restatement,
supplement, modification, substitution, Refinancing, renewal or replacement) no
less than that applicable to the Term Loan Obligations on the date hereof; (ii)
in the case of any secured Refinancing, substantially concurrently with the
entry into definitive documentation evidencing such indebtedness, the lenders
thereunder shall enter into an intercreditor agreement on terms no less
favorable to the Revolving Creditors than this Agreement or execute an
Intercreditor Agreement Joinder, (ii) Liens on no categories of Collateral
not subject to the Liens securing the Revolving Credit Obligations are granted
to secure it unless such categories of Collateral also secure the Revolving
Credit Obligations; and (iii) no additional Person is obligated on such
indebtedness unless such additional Person also is or becomes an obligor on the
Revolving Credit Obligations.


 


“Term Loan Secured Claim”
means any portion of the Term Loan Obligations.


 


“Term Loan  Termination Date” means the date on which all Term Loan
Obligations have been Paid in Full (but shall not be deemed to occur if a
Refinancing of any then existing Term Loan Obligations occurs or a Term Loan
Credit Substitute Facility is entered into in connection with the repayment and
Refinancing of any then existing Term Loan Obligations).


 


“Term Obligations
Purchaser” has the meaning set forth in
Section 5.1.


 


“UCC” means the
Uniform Commercial Code of any applicable jurisdiction and, if the applicable
jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial
Code as in effect in the State of New York.


 


“UCC Notice” has
the meaning set forth in Section 3.2.


 


The terms “Certificated Security,”
“Commodity Account,” “Deposit Account,” “Document,” “Equipment,” “Goods,” “Healthcare Insurance Receivable,” “Instrument,”


 


21
















 


“Investment Property,”
“Letter-of-Credit Right,” “Money,” “Payment Intangible,”
“Records,” “Securities
Account,” “Securities Entitlements,”
“Supporting Obligations” and “Uncertificated Securities” have the meanings ascribed to
them in the Uniform Commercial Code as in effect in the State of New York from
time to time.


 


1.2           Certain
Matters of Construction.  The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement and section references are to this Agreement unless
otherwise specified.  For purposes of
this Agreement, the following additional rules of construction shall apply: (a) wherever
from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and the plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the masculine,
the feminine and the neuter, (b) the term “including” shall not be
limiting or exclusive, unless specifically indicated to the contrary, (c) all
references to statutes and related regulations shall include any amendments of
same and any successor statutes and regulations, (d) unless otherwise
specified, all references to any instruments or agreements, including
references to any of this Agreement and the Obligation Documents, shall include
any and all amendments or other modifications thereto and any and all
extensions or renewals thereof, and refinancings and replacements thereof, in
each case, made in accordance with the terms thereof and hereof, and (e) the
terms “property” and “asset” or “properties” and “assets” shall have the same
meaning.


 


Section 2.                                            Security
Interests; Priorities.


 


2.1           Priorities.


 


(a)           Each Secured
Creditor hereby acknowledges that other Secured Creditors have been, or may in
the future be, granted Liens upon the Collateral to secure their respective
Obligations and hereby consent to such grant.


 


(b)           (i) The
Liens of the Term Loan Agent, the Term Loan Creditors and any agent,
representative or trustee representative acting on behalf of the Term Loan
Agent or Term Loan Creditors on the Term Loan Priority Collateral to the extent
securing (or purporting to secure) the Term Loan Obligations are and shall be
senior in right, priority, operation and effect to the Liens of (x) the
Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors on the
Term Loan Priority Collateral and (y) the Existing Notes Agent, the
Existing Notes Creditors and any agent, representative or trustee acting on
behalf of the Existing Notes Agent or Existing Notes Creditors on the Term Loan
Priority Collateral and (ii) such Liens of (x) the Revolving Agent,
the Revolving Creditors and any agent, representative or trustee acting on
behalf of the Revolving Agent or Revolving Creditors, if any, on the Term Loan
Priority Collateral and (y) the Existing Notes Agent, the Existing Notes
Creditors and any agent, representative or trustee acting on behalf of the
Existing Notes Agent or Existing Notes Creditors, in each case above, on the
Term Loan Priority Collateral, in each case above, are and shall be junior and
subordinate in right, priority, operation and effect to the Liens of the Term
Loan Agent, the Term Loan Creditors and any agent, representative or trustee
representative acting on behalf of the Term Loan Agent or Term Loan Creditors
in the Term Loan Priority Collateral to the extent securing (or purporting to 


 


22

















 


secure) the Term Loan Obligations.  The Liens of the Term Loan Agent, the Term
Loan Creditors and any agent, representative or trustee representative acting
on behalf of the Term Loan Agent or Term Loan Creditors on the Term Loan
Priority Collateral, to the extent securing (or purporting to secure) Excess
Term Obligations, shall be junior and subordinate to the Liens, if any, of the
Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors on the
Term Loan Priority Collateral, to the extent securing Revolving Credit
Obligations. The Liens of the Term Loan Agent, Term Loan Creditors and any
agent, representative or trustee acting on behalf of the Term Loan Agent or
Term Loan Creditors on the Revolving Credit Priority Collateral, to the extent
securing (or purporting to secure) the Term Loan Obligations, shall be senior
to the Liens, if any, of the Revolving Agent, the Revolving Creditors and any
agent, representative or trustee acting on behalf of the Revolving Agent or
Revolving Creditors in the Revolving Priority Collateral, to the extent
securing (or purporting to secure) Excess Revolving Credit Obligations.


 


The Liens of the Term Loan Agent, the Term Loan Creditors and
any agent, representative or trustee representative acting on behalf of the
Term Loan Agent or Term Loan Creditors on the Revolving Credit Priority
Collateral to the extent securing (or purporting to secure) the Term Loan
Obligations are and shall be senior in right, priority, operation and effect to
the Liens of the Existing Notes Agent, the Existing Notes Creditors and any
agent, representative or trustee acting on behalf of the Existing Notes Agent
or Existing Notes Creditors on the Revolving Credit Priority Collateral and
such Liens of the Existing Notes Agent, the Existing Notes Creditors and any
agent, representative or trustee acting on behalf of the Existing Notes Agent
or Existing Notes Creditors on the Revolving Credit Priority Collateral, in
each case above, are and shall be junior and subordinate in right, priority,
operation and effect to the Liens of the Term Loan Agent, the Term Loan
Creditors and any agent, representative or trustee representative acting on
behalf of the Term Loan Agent or Term Loan Creditors in the Revolving Credit
Priority Collateral to the extent securing (or purporting to secure) the Term
Loan Obligations.


 


(c)           (i) The
Liens, if any, of the Revolving Agent, the Revolving Creditors and any agent,
representative or trustee acting on behalf of the Revolving Agent or Revolving
Creditors on the Revolving Credit Priority Collateral to the extent securing
Revolving Credit Obligations shall be senior in right, priority, operation and
effect to the Liens of (x) the Term Loan Agent, Term Loan Creditors and
any agent, representative or trustee acting on behalf of the term Loan Agent or
Term Loan Creditors on the Revolving Credit Priority Collateral and (y) the
Existing Notes Agent, the Existing Notes Creditors and any agent,
representative or trustee acting on behalf of the Existing Notes Agent or
Existing Notes Creditors on the Revolving Credit Priority Collateral and (ii) such
Liens of (x) the Term Loan Agent, Term Loan Creditors and any agent,
representative or trustee acting on behalf of the Term Loan Agent or Term Loan
Creditors and (y) the Existing Notes Agent, the Existing Notes Creditors
and any agent, representative or trustee acting on behalf of the Existing Notes
Agent or Existing Notes Creditors, in each case above, on the Revolving Credit
Priority Collateral, in each case above, are and shall be junior and
subordinate in right, priority, operation and effect to the Liens, if any, of
the Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors in the
Revolving Credit Priority Collateral to the extent securing (or purporting to
secure) Revolving Credit Obligations. 
The Liens, if any, of the Revolving Agent, the Revolving Creditors and
any Agent, representative or trustee acting on 


 


23

















 


behalf of the Revolving Agent or Revolving Creditors on the
Revolving Credit Priority Collateral, to the extent securing (or purporting to
secure) Excess Revolving Credit Obligations, shall be junior and subordinate to
the Liens of the Term Loan Agent, Term Loan Creditors and any agent,
representative or trustee acting on behalf of the Term Loan Agent or Term Loan
Creditors on the Revolving Credit Priority Collateral, to the extent securing
(or purporting to secure) Term Loan Obligations. The Liens, if any, of the
Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors on the
Term Loan Priority Collateral, to the extent securing (or purporting to secure)
the Revolving Credit Obligations, shall be senior to the Liens of the Term Loan
Agent, Term Loan Creditors and any agent, representative or trustee acting on
behalf of the Term Loan Agent or Term Loan Creditors in the Term Loan Priority
Collateral, to the extent securing (or purporting to secure) Excess Term
Obligations.


 


The Liens, if any, of the Revolving Agent, the Revolving
Creditors and any agent, representative or trustee representative acting on
behalf of the Revolving Agent or Revolving Creditors on the Term Loan Priority
Collateral to the extent securing (or purporting to secure) the Revolving
Credit Obligations are and shall be senior in right, priority, operation and
effect to the Liens of the Existing Notes Agent, the Existing Notes Creditors
and any agent, representative or trustee acting on behalf of the Existing Notes
Agent or Existing Notes Creditors on the Term Loan Priority Collateral and such
Liens of the Existing Notes Agent, the Existing Notes Creditors and any agent,
representative or trustee acting on behalf of the Existing Notes Agent or
Existing Notes Creditors on the Term Loan Priority Collateral, in each case
above, are and shall be junior and subordinate in right, priority, operation
and effect to the Liens, if any, of the Revolving Agent, the Revolving
Creditors and any agent, representative or trustee representative acting on
behalf of the Revolving Agent or Revolving Creditors in the Term Loan Priority
Collateral to the extent securing (or purporting to secure) the Revolving
Credit Obligations.


 


(d)           The
priorities of the Liens provided in this Section 2.1 shall not be
altered or otherwise affected by any amendment, modification, supplement,
extension, renewal, restatement, replacement or Refinancing of any of the
Obligations, by any action or inaction which any of the Secured Creditors may
take or fail to take in respect of any Collateral or, except as expressly
contemplated hereby, by the release of any Collateral or the release of any of
the guarantees of any of the Obligations.


 


(e)           All
rights, powers and priorities of the Term Loan Agent as a Primary Priority
Secured Creditor are senior and superior to the rights, powers and priorities
of the Revolving Agent as a Secondary Priority Secured Creditor, and all
rights, powers and priorities of the Term Loan Agent and the other Term Loan
Creditors as secured creditors in respect of the Collateral are senior and
superior to all rights, however arising, of the Existing Notes Creditors as
secured creditors in respect of the Collateral. 
The Revolving Agent as a Secondary Priority Secured Creditor shall exercise
no rights, powers or remedies as a Priority Secured Creditor so long as the
Term Loan Obligations have not been Paid in Full (without prejudice to its
rights as a Junior Secured Creditor under Section 3).  The Existing Notes Creditors shall exercise
no rights, powers or remedies as secured parties in respect of the Collateral
so long as the Term Loan Obligations have not been Paid in Full.  If at any time no Revolving Credit Agreement
shall be in effect, the Term Loan Agent shall be entitled to act a Primary
Priority Secured Creditor in 


 


24

















 


respect of the Term Loan Priority Collateral and the
Revolving Credit Priority Collateral for all purposes of this Agreement.


 


(f)            All
rights, powers and priorities of the Revolving Agent as a Primary Priority
Secured Creditor are senior and superior to the rights, powers and priorities
of the Term Loan Agent as a Secondary Priority Secured Creditor, and all
rights, powers and priorities of the Revolving Agent and the other Revolving
Creditors as secured creditors in respect of the Collateral are senior and
superior to all rights, however arising, of the Existing Notes Creditors as
secured creditors in respect of the Collateral. The Term Loan Agent as a
Secondary Priority Secured Creditor shall exercise no rights, powers or
remedies as a Priority Secured Creditor so long as the Revolving Credit
Obligations have not been Paid in Full (without prejudice to its rights as a
Junior Secured Creditor under Section 3). 
The Existing Notes Creditors shall exercise no rights, powers or
remedies as secured parties in respect of the Collateral so long as the
Revolving Credit Obligations have not been Paid in Full.


 


(g)           All
rights, powers and priorities of the Term Loan Agent as a Primary Junior
Secured Creditor are senior and superior to the rights, powers and priorities
of the Revolving Agent as a Secondary Junior Secured Creditor.  The Revolving Agent as a Secondary Junior
Secured Creditor shall exercise no rights, powers or remedies as a Junior
Secured Creditor so long as the Term Loan Obligations have not been Paid in
Full, but at all times the Revolving Agent as a Secondary Junior Secured
Creditor shall have the obligations and responsibilities of a Junior Secured
Creditor.


 


(h)           All
rights, powers and priorities of the Revolving Agent as a Primary Junior
Secured Creditor are senior and superior to the rights, powers and priorities
of the Term Loan Agent as a Secondary Junior Secured Creditor.  The Term Loan Agent as a Secondary Junior
Secured Creditor shall exercise no rights, powers or remedies as a Junior
Secured Creditor so long as the Revolving Credit Obligations have not been Paid
in Full, but at all times the Term Loan Agent as a Secondary Junior Secured
Creditor shall have the obligations and responsibilities of a Junior Secured
Creditor.


 


2.2           No
Alteration of Priority.  The
priorities set forth in this Agreement in respect of Collateral are applicable
irrespective of the order, time, method or manner of the creation, attachment,
or perfection, or the order or time of filing or recordation of any document or
instrument, or other method of perfecting a Lien in favor of each Secured
Creditor in any Collateral, and notwithstanding any conflicting terms or
conditions that may be contained in any of the Obligation Documents, any
provision of any agreement, document, instrument or applicable law and
notwithstanding any subsequent failure to maintain perfection of the Lien in
favor of the applicable Secured Creditor, provided that there has been an
initial valid perfection of the Lien in such Collateral as to the relevant
Secured Creditor under applicable law. 
The parties hereto acknowledge and agree that it is their intention that
the Collateral securing the Revolving Credit Obligations and the Collateral
securing the Term Loan Obligations as of the date hereof be identical in all
material respects (except with respect to priorities as set forth in Section 2.1
hereof) and, in furtherance of such intent, the parties hereto agree:  (a) to cooperate in good faith in order
to determine, upon any request by the Revolving Agent or the Term Loan Agent,
the specific assets included in the Collateral securing their respective
Obligations, the steps taken to perfect the Liens thereon and the identity of
the respective parties obligated under 


 


25

















 


any Obligation Document, and (b) any Lien obtained by
any Secured Creditor in respect of any judgment obtained in respect of any
obligations shall be subject in all respects to the terms of this
Agreement.  The parties hereto further
acknowledge and agree that it is their intention that the Collateral securing
the Revolving Credit Obligations and the Collateral securing the Term Loan
Obligations include at all times all of the Collateral securing the Existing
Notes Obligations (subject to the priorities as set forth in Section 2.1
hereof) and, in furtherance of such intent, the Existing Notes Creditors
agree:  (a) to cooperate in good
faith in order to determine, upon any request by the Revolving Agent or the
Term Loan Agent, the specific assets included in the Collateral securing the
Existing Notes Obligations, the steps taken to perfect the Liens thereon and
the identity of the respective parties obligated under any Obligation Document
and (b) any Lien obtained by any Existing Notes Creditor in respect of any
judgment obtained in respect of any obligations shall be subject in all
respects to the terms of this Agreement.. 
The parties hereto further acknowledge and agree that it is not their
intention that the Collateral securing the Existing Notes Obligations include
all Collateral securing the Revolving Credit Obligations and the Term Loan
Obligations, and that there may be Collateral securing the Revolving Credit
Obligations and the Term Loan Obligations that does not secure the Existing
Notes Obligations , including without limitation as contemplated by Section 2.4(d)


 


2.3           Perfection; Contesting Liens. 
Each Secured Creditor shall be
solely responsible for creating, perfecting and maintaining the perfection of
its Lien in the Collateral in which such Secured Creditor has been or is
intended to be granted a Lien, provided that pursuant to the Existing
Notes Documents and New Notes Documents, the Obligors party to such agreements
have agreed to be solely responsible for creating, perfecting and maintaining
Liens in the Collateral which secure the Existing Note Obligations or New Notes
Obligations, as the case may be.  The
foregoing provisions of this Agreement are intended solely to govern the respective
Lien priorities as among the Secured Creditors in respect of Collateral and
shall not impose on any Secured Creditor any obligations in respect of the
Disposition of Proceeds or any Collateral that would conflict with prior
perfected claims therein in favor of any other Person or any order or decree of
any court or governmental authority or any applicable law.  Each Secured Creditor agrees that it will not
(a) institute, join in or support any contest of the validity, perfection,
priority or enforceability of the Liens granted to, or purported to be granted
to, any other Secured Creditor in the Collateral (or any property purported to
be included in the Collateral), including, without limitation, any equity
interests in, or any assets of, any New License Subsidiary or any proceeds
thereof, or the enforceability of the Term Loan Obligations or the Revolving
Credit Obligations (provided that nothing in this Agreement shall be
construed to prevent or impair the rights of the Term Loan Agent or the
Revolving Agent to enforce this Agreement); or (b) prior to payment in
full of the Term Loan Obligations, assert any right as an unsecured creditor
or, in the case of the Existing Notes Creditors, a secured creditor, in, to or
under any equity interests in, or any assets of, any New License Subsidiary or
any proceeds thereof.


 


2.4           Limitation
on New Liens.


 


(a)           The
parties hereto acknowledge that, as of the date hereof, (i) the Liens of
the Term Loan Agent under the Term Loan Credit Documents do not encumber any
assets of any Obligor which assets are not subject to a Lien of the Revolving
Agent under the Revolving Credit Documents (unless as of the date hereof there
are no Revolving Credit Documents in effect) and (ii) the Liens of the
Revolving Agent under the Revolving Credit Documents, if any, 


 


26

















 


do not encumber any assets of any Obligor which assets are
not subject to a Lien of the Term Loan Agent under the Term Loan Credit
Documents and (iii) the Liens of the Existing Notes Creditors under the
Existing Notes Documents do not encumber any assets of any Obligor which assets
are not subject to a Lien of the Term Loan Agent under the Term Loan Credit
Documents and a Lien of the Revolving Agent under the Revolving Credit
Documents (unless as of the date hereof there are no Revolving Credit Documents
in effect).


 


(b)           During any
period when Revolving Credit Obligations are outstanding and until such
Revolving Credit Obligations have been Paid in Full, no Term Loan Creditor
shall acquire after the initial closing date under the Term Loan Credit
Agreement any Lien on any assets of any Obligor securing any Term Loan
Obligation which assets are not also subject to the Lien, if any shall then
exist, of the Revolving Agent under the Revolving Credit Documents, unless the
Revolving Agent shall be notified thereof and shall have had an opportunity to
create a Lien thereon comparable to the Lien thereon in favor of the Term Loan
Creditors, provided that, notwithstanding the foregoing, if the Revolving Agent
shall have had an opportunity to create such a comparable Lien and shall have
failed to do so beyond 30 days after the later of (x) the date it receives
notice thereof and (y) the date it has the opportunity to create such
comparable Lien, the Term Loan Creditors shall nevertheless be entitled to
create and maintain such Lien on such assets though they are not also subject
to the Lien of the Revolving Agent under the Revolving Credit Documents.  Such Liens, if created in favor of the Term
Loan Agent or Term Loan Creditors and the Revolving Agent or Revolving
Creditors shall be subject to the Lien priorities set forth herein.  If any Term Loan Creditor shall acquire or
hold any Lien on any assets of any Obligor securing any Term Loan Obligation
which assets are not also subject to the Lien of the Revolving Agent under the
Revolving Credit Documents (other than by reason of the failure of the
Revolving Agent or the other Revolving Creditors to obtain such a Lien as
contemplated by the first sentence hereof), subject to the Lien priorities set
forth herein, then the Term Loan Agent (or the relevant Term Loan Creditor)
shall, without the need for any further consent of any other Term Loan Creditor
and notwithstanding anything to the contrary in any other Term Loan Credit
Document be deemed to also hold and have held, and the applicable Obligors
hereby grant in favor of the Revolving Agent for the benefit of the Revolving
Creditors as security for the Revolving Credit Obligations, such a comparable
Lien for the benefit of the Revolving Agent as security for the Revolving
Credit Obligations (subject to the Lien priorities set forth herein and other
terms hereof) and the Company shall promptly notify the Revolving Agent in
writing of the existence of such Lien.


 


(c)           Until the
Term Loan Obligations have been Paid in Full, no Revolving Creditor shall
acquire after the initial closing date under the Revolving Credit Agreement any
Lien on any assets of any Obligor securing any Revolving Credit Obligation
which assets are not also subject to the Lien of the Term Loan Agent under the
Term Loan Credit Documents, unless the Term Loan Agent shall be notified
thereof and shall have had an opportunity to create a Lien thereon comparable
to the Lien thereon in favor of the Revolving Loan Creditors, provided that,
notwithstanding the foregoing, if the Term Loan Agent shall have had an
opportunity to create such a comparable Lien and shall have failed to do so
beyond 30 days after the later of (x) the date it receives notice thereof
and (y) the date it has the opportunity to create such comparable Lien,
the Revolving Loan Creditors shall nevertheless be entitled to create and
maintain such Lien on such assets though they are not also subject to the Lien
of the Term Loan Agent under the Term Loan Credit Documents.  Such Liens, if created in favor of the Term
Loan Agent or 


 


27

















 


Term Loan Creditors and the Revolving Agent or Revolving
Creditors shall be subject to the Lien priorities set forth herein.  If any Revolving Creditor shall acquire or
hold any Lien on any assets of any Obligor securing any Revolving Credit
Obligation which assets are not also subject to the Lien of the Term Loan Agent
under the Term Loan Credit Documents (other than by reason of the failure of
the Term Loan Agent or the other Term Loan Creditors to obtain such a Lien as
contemplated by the first sentence hereof), subject to the Lien priorities set
forth herein, then the Revolving Agent (or the relevant Revolving Creditor)
shall, without the need for any further consent of any other Revolving Creditor
and notwithstanding anything to the contrary in any other Revolving Credit
Document be deemed to also hold and have held, and the applicable Obligors
hereby grant in favor of the Term Loan Agent for the benefit of the Term Loan
Creditors as security for the Term Loan Obligations, such a comparable Lien for
the benefit of the Term Loan Agent as security for the Term Loan Obligations
(subject to the Lien priorities set forth herein and other terms hereof) and
the Company shall promptly notify the Term Loan Agent in writing of the
existence of such Lien.


 


(d)           No
Existing Notes Creditor shall, after the date hereof, acquire any Lien on (i) any
assets of any Obligor that do not at such time secure the Term Loan Obligations
and, if then outstanding, the Revolving Credit Obligations, or (ii) any
equity interests in, or any assets of, any New License Subsidiary or any
proceeds thereof.


 


2.5           Proceeds
of Collateral.  Subject to the
proviso to the first sentence of Section 6.5, any Non-Priority
Collateral or Proceeds thereof received by any Secured Creditor including,
without limitation, any such Non-Priority Collateral constituting Proceeds, or
any payment or Distribution, that may be received by any Secured Creditor (a) in
connection with the exercise of any right or remedy (including any right of
setoff) with respect to Non-Priority Collateral, (b) in connection with
any insurance policy claim or any condemnation award (or deed in lieu of
condemnation) as to Non-Priority Collateral, (c) from the collection or
other Disposition of, or realization on, Non-Priority Collateral, whether or
not pursuant to an Insolvency Proceeding or (d) in violation of this Agreement,
shall be segregated and held in trust and promptly paid over to the Priority
Secured Creditor, in the same form as received, with any necessary
endorsements, and each Junior Secured Creditor hereby authorizes the Priority
Secured Creditor to make any such endorsements as agent for such Junior Secured
Creditor (which authorization, being coupled with an interest, is
irrevocable).  In furtherance of the
foregoing, any Collateral or Proceeds thereof received by any Existing Notes
Creditor including, without limitation, any such Collateral constituting
Proceeds, or any payment or Distribution, that may be received by any Existing
Notes Creditor (a) in connection with the exercise of any right or remedy
(including any right of setoff) with respect to any Collateral, (b) in
connection with any insurance policy claim or any condemnation award (or deed
in lieu of condemnation) as to any Collateral, (c) from the collection or
other Disposition of, or realization on, any Collateral, whether or not
pursuant to an Insolvency Proceeding or (d) in violation of this
Agreement, shall be segregated and held in trust and promptly paid over to the
Priority Secured Creditor, in the same form as received, with any necessary
endorsements, and each Existing Notes Creditor hereby authorizes the Priority
Secured Creditor to make any such endorsements as agent for such Existing Notes
Creditor (which authorization, being coupled with an interest, is
irrevocable).  The Term Loan Agent, on
behalf of itself and the Term Loan Creditors, and the Existing Notes Agent, on
behalf of itself and the Existing Notes Creditors, each acknowledges and agrees
that the Revolving Credit Agreement includes a revolving commitment and that in
the ordinary 


 


28

















 


course of business Revolving Agent will apply Proceeds of
Revolving Credit Priority Collateral in accordance with the terms thereof
(which may not permanently reduce such revolving commitment) and may make
advances thereunder from time to time, and may apply Proceeds of Term Loan
Priority Collateral not required pursuant to the provisions of the Term Loan
Credit Documents as in effect on the date hereof or this Agreement to be paid
over to the Term Loan Agent or Term Loan Creditors to repay Revolving Credit
Obligations in the ordinary course.  The
Existing Notes Agent, on behalf of itself and the Existing Notes Creditors,
acknowledges and agrees that the Revolving Credit Agreement includes a
revolving commitment and that in the ordinary course of business Revolving
Agent will apply Proceeds of Revolving Credit Priority Collateral in accordance
with the terms thereof (which may not permanently reduce such revolving
commitment) and may make advances thereunder from time to time, and may apply
Proceeds of Term Loan Priority Collateral not required pursuant to the
provisions of the Term Loan Credit Documents as in effect on the date hereof or
this Agreement to be paid over to the Term Loan Agent or Term Loan Creditors to
repay Revolving Credit Obligations in the ordinary course.  The Revolving Agent, on behalf of itself and
the Revolving Creditors, acknowledges and agrees that the Term Loan Credit
Agreement contains provisions requiring prepayment of the Term Loan Obligations
and that the Obligors may continue to make such prepayments of Term Loan
Obligations notwithstanding any provision to the contrary in the Revolving
Credit Agreement or other Revolving Credit Documents.  The Existing Notes Agent, on behalf of itself
and the Existing Notes Creditors, acknowledges and agrees that Collateral and
Proceeds thereof may be applied to repayment or prepayment of the Revolving
Credit Obligations and Term Loan Obligations in accordance with the provisions
thereof, and prior to payment of the Existing Notes Obligations notwithstanding
any contrary provision in any Existing Notes Document.


 


2.6           Release
of Collateral Upon Permitted Collateral Sale.  Each Junior Secured Creditor shall at any
time in connection with any Permitted Collateral Sale of Collateral that, as to
such Junior Secured Creditor, is Non-Priority Collateral and that is made free
and clear of the Liens of the Priority Secured Creditors (such Lien continuing
as to Proceeds):  (a) upon the
request of the Priority Secured Creditor as to such Collateral subject to such
Permitted Collateral Sale, release or otherwise terminate its Liens on such
Collateral (provided that such Lien shall continue as to Proceeds
thereof), (b) promptly deliver such terminations of financing statements,
partial lien releases, mortgage satisfactions and discharges, endorsements,
assignments or other instruments of transfer, termination or release
(collectively, “Release Documents”) and take such
further actions as the Priority Secured Creditor shall reasonably require in
order to release and/or terminate such Junior Secured Creditor’s Liens on such
Collateral subject to such Permitted Collateral Sale (but not the Proceeds of
such Collateral), and (c) be deemed to have consented under the applicable
Obligation Documents to such Permitted Collateral Sale free and clear of the
Junior Secured Creditor’s security interest (it being understood that the
Junior Secured Creditor shall still, subject to the terms of this Agreement,
have a security interest with respect to the Proceeds of such Collateral) and
to have waived the provisions of the applicable Obligation Documents to the
extent necessary to permit such transaction.


 


2.7           Release
of Collateral Upon Release Event. 
The Junior Secured Creditor shall, at any time in connection with a
Release Event with respect to any Collateral that, as to such Junior Secured
Creditor, is Non-Priority Collateral:  (a) upon
the request of the Priority Secured Creditor with respect to such Collateral
subject to such Release Event (which request 


 


29

















 


will specify the principal proposed terms of the sale and the
type and amount of consideration expected to be received in connection
therewith), release or otherwise terminate its Liens on such Collateral (provided
that such Lien shall continue as to Proceeds thereof), to the extent the
Disposition of such Collateral is either by (i) the Priority Secured
Creditor or its agents or representatives or (ii) any Obligor with the
consent of the Priority Secured Creditor, (b) be deemed to have consented
under the applicable Obligation Documents to such Disposition free and clear of
the Junior Secured Creditor’s Liens (it being understood that the Junior
Secured Creditor shall still, subject to the terms of this Agreement, have a security
interest with respect to the Proceeds of such Collateral) and to have waived
the provisions of the applicable Obligation Documents to the extent necessary
to permit such transaction and (c) deliver such Release Documents and take such
further actions as Priority Secured Creditor may reasonably require in
connection therewith; provided that such release by the Junior Secured
Creditor shall not extend to, or otherwise affect any of the rights of the
Junior Secured Creditor to, the Proceeds from any such Disposition of such
Collateral subject to the provisions hereof.


 


2.8           Power
of Attorney.  As to any Collateral
that, as to any Junior Secured Creditor, is Non-Priority Collateral, such
Junior Secured Creditor hereby irrevocably constitutes and appoints the
Priority Secured Creditor as to such Collateral and any officer of such
Priority Secured Creditor, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of the Junior Secured Creditor and in the name of the Junior Secured
Creditor or in such Priority Secured Creditor own name, from time to time in
such Priority Secured Creditor discretion, for the purpose of carrying out the
terms of Sections 2.6 and 2.7 hereof, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of such Sections,
including any Release Documents, and, in addition, to take any and all other
appropriate and commercially reasonable action for the purpose of carrying out
the terms of such Sections, all subject to the limitations set forth therein,
such power of attorney being coupled with an interest and irrevocable until the
Term Loan Termination Date, if the Junior Secured Creditor is the Revolving
Agent, or the Revolving Credit Termination Date, if the Junior Secured Creditor
is the Term Loan Agent.  The Junior
Secured Creditor hereby ratifies all that said attorneys shall lawfully do or
cause to be done pursuant to the power of attorney granted in this Section 2.8
if done in accordance with the provisions hereof.  No Person to whom this power of attorney is
presented, as authority for the Priority Secured Creditor to take any action or
actions contemplated hereby, shall be required to inquire into or seek
confirmation from any Junior Secured Creditor as to the authority of the
Priority Secured Creditor to take any action described herein, or as to the
existence of or fulfillment of any condition to this power of attorney, which
is intended to grant to the Priority Secured Creditor the authority to take and
perform the actions contemplated herein. 
The Junior Secured Creditor irrevocably waives any right to commence any
suit or action, in law or equity, against any Person that acts in reliance upon
or acknowledges the authority granted under this power of attorney.


 


2.9           Waiver.  Each Secured Creditor (a) subject to the
requirement that the Company shall be required to designate by written notice
to the Term Loan Agent any Revolving Credit Agreement for purposes hereof, as
contemplated hereby, waives any and all notice from any Secured Creditor of the
creation, renewal, extension or accrual of any of the Obligations under the
Obligation Documents and notice of or proof of reliance by the Secured
Creditors upon this Agreement and protest, demand for payment or notice except
to the extent otherwise 


 


30

















 


specified herein and (b) acknowledges and agrees that
the other Secured Creditors have relied upon the Lien priority and other
provisions hereof in entering into the Obligation Documents and in making funds
available to the Company, subject to the provisions hereof.


 


2.10         Notice
of Interest In Collateral.  This
Agreement, and the execution and delivery by any party hereto to the other
parties hereto, is intended, in part, to constitute an authenticated
notification of a claim by each Secured Creditor to the other Secured Creditors
of an interest in the Collateral in accordance with the provisions of Sections
9-611 and 9-621 of the UCC.


 


Section 3.                                            Enforcement
of Security.


 


3.1           No
Duties of Priority Secured Creditor. 
Each Junior Secured Creditor acknowledges and agrees that the Priority
Secured Creditor shall not have any duties or other obligations to such Junior
Secured Creditor with respect to any Priority Collateral, other than to
transfer to such Junior Secured Creditor (other than any Existing Notes
Creditor, until such time as all Revolving Credit Obligations and all Term Loan
Obligations shall have been Paid in Full) any remaining Collateral that
constitutes Non-Priority Collateral and any Proceeds of the sale or other
disposition of any such Collateral that constitutes Non-Priority Collateral
remaining in its possession following the Payment in Full of the associated
Priority Obligations, or in the case of the Existing Notes Creditors as Junior
Secured Creditors, all Priority Obligations, in each case without
representation or warranty on the part of the Priority Secured Creditor.  In furtherance of the foregoing, each Junior
Secured Creditor acknowledges and agrees that until the Payment in Full of the
associated Priority Obligations secured by any Collateral on which such Junior
Secured Creditor holds a Lien, the Priority Secured Creditor shall be entitled,
for the benefit of the holders of such Priority Obligations, to sell, transfer
or otherwise dispose of or deal with such Collateral, as provided in the
Priority Documents but in no event inconsistent with the other provisions of
this Agreement, without regard to any junior Lien or any rights to which the
holders of the Junior Obligations would otherwise be entitled as a result of
such Lien, except as otherwise provided herein. 
Without limiting the foregoing, each Junior Secured Creditor agrees that
the Priority Secured Creditor shall not have any duty or obligation first to
sell, dispose of or otherwise liquidate all or any portion of such Priority
Collateral (or any other collateral securing the Priority Obligations), in any
manner that would maximize the return to such Junior Secured Creditor,
notwithstanding that the order and timing of any such realization, sale,
disposition or liquidation may affect the amount of proceeds actually received
by such Junior Secured Creditor from such realization, sale, disposition or
liquidation.  Following the Payment in
Full of the associated Priority Obligations, or in the case of the Existing
Notes Creditors as Junior Secured Creditor, all Priority Obligations, the
Junior Secured Creditor may, subject to any other agreements binding on such
Junior Secured Creditor, assert their rights under the New York UCC or
otherwise to any Proceeds remaining following a sale, disposition or other
liquidation of Collateral by, or on behalf of, the Priority Secured Creditor or
the Junior Secured Creditor.  Each Junior
Secured Creditor waives any claim such Junior Secured Creditor may now or
hereafter have against the Priority Secured Creditor arising out of any actions
that the Priority Secured Creditor takes or omits to take (including actions
with respect to the creation, perfection or continuation of Liens on any
Collateral, actions with respect to the foreclosure upon, sale, release or
depreciation of, or failure to realize upon, any of the Collateral, and actions
with respect to the collection of any claim for all or any part of the Priority
Obligations from any account debtor, 


 


31

















 


guarantor or any other party) in accordance with this Agreement
and the Priority Documents, or arising out of the collection of the Priority
Obligations or the valuation, use, protection or release of any security for
the Priority Obligations if effected in accordance with this Agreement and the
Priority Documents.


 


3.2           Management
of Collateral.  Subject to the other
terms and conditions of this Agreement, each Priority Secured Creditor shall
have the exclusive right to manage, perform and enforce the terms of the
applicable Obligation Documents with respect to its Priority Collateral, to
exercise and enforce all privileges and rights thereunder according to its sole
discretion and the exercise of its sole business judgment, including the
exclusive right to take or retake control or possession of such Priority Collateral
and to hold, prepare for sale, process, Dispose of, or liquidate such Priority
Collateral and to incur expenses in connection with such Disposition and to
exercise all the rights and remedies of a secured lender under the UCC of any
applicable jurisdiction.  In conducting
any public or private sale under the UCC of its Priority Collateral, the
Priority Secured Creditor shall give the Junior Secured Creditor such notice (a
“UCC Notice”) of such sale as may be
required by the applicable UCC; provided, however, that 10 days’
notice shall be deemed to be commercially reasonable notice.  Except as specifically provided in this Section 3.2
or Section 3.4 below, notwithstanding any rights or remedies
available to a Junior Secured Creditor under any of the applicable Obligation
Documents, applicable law or otherwise, no Junior Secured Creditor shall,
directly or indirectly, take any Enforcement Action with respect to Collateral
that, as to such Junior Secured Creditor, is Non-Priority Collateral; provided
that, subject at all times to the provisions of Section 2,
upon the expiration of the applicable Standstill Period, a Junior Secured
Creditor (other than any Existing Notes Creditor) may take any Enforcement
Action as to such Collateral (provided that it gives the Priority
Secured Creditor at least 10 Business Days written notice prior to taking such
Enforcement Action); provided, further, that notwithstanding the
expiration of the Standstill Period or anything herein to the contrary, in no
event shall any Junior Secured Creditor take any Enforcement Action or exercise
or continue to exercise any such rights or remedies, or commence or petition
for any such action or proceeding (including any foreclosure action or
proceeding or any Insolvency Proceeding) as to its Non-Priority Collateral if
either (i) an Insolvency Proceeding occurs and is continuing or (ii) the
Priority Secured Creditor shall have commenced the enforcement or exercise of
any rights or remedies with respect to more than a de minimis portion of such
Non-Priority Collateral, or with respect to any of such Non-Priority Collateral
as to which the Junior Secured Creditor has commenced an Enforcement Action, as
applicable, or commenced any such action or proceeding (including, without
limitation, any of the following (if undertaken and pursued to consummate a
Disposition of such Collateral within a commercially reasonable time): the
solicitation of bids from third parties to conduct the liquidation of all or
any material portion of such Collateral, the engagement or retention of sales
brokers, marketing agents, investment bankers, accountants, auctioneers or
other third parties for the purpose of valuing, marketing, promoting or selling
all or any material portion of such Collateral, the notification of account
debtors to make payments to the Priority Secured Creditor or its agents, the
initiation of any action to take possession of all or any material portion of
such Collateral or the commencement of any legal proceedings or actions against
or with respect to the foreclosure and sale of all or any material portion of
such Collateral), or the diligent attempt in good faith to vacate any stay
prohibiting an Enforcement Action with respect to all or any material portion
of such Collateral or diligently attempting in good faith to vacate any stay
prohibiting an Enforcement Action.


 


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3.3                                 Notices of
Default.  Each Secured Creditor shall
give to the other Secured Creditors prior to or substantially concurrently with
the giving thereof to any Obligor (a) a copy of any written notice by any
Secured Creditor of an Event of Default under any of its Obligation Documents
or a written notice of demand for payment from any Obligor and (b) a copy
of any written notice sent by such Secured Creditor to any Obligor stating such
Secured Creditor’s intention to exercise any material enforcement rights or
remedies against such Obligor, including written notice pertaining to any
foreclosure on all or any material part of its Priority Collateral or other
judicial or non-judicial remedy in respect thereof, and any legal process
served or filed in connection therewith; provided that the failure of
any Secured Creditor to give such required notice shall not result in any
liability to such Secured Creditor or affect the enforceability of any
provision of this Agreement, including the relative priorities of the Liens of
the Secured Creditors as provided herein, and shall not affect the validity or
effectiveness of any such notice as against the Company or any other Obligor; provided,
further, that the foregoing shall not in any way impair any claims that
any Secured Creditor may have against any other Secured Creditor as a result of
any failure of any Secured Creditor to provide a UCC Notice in accordance with
the provisions of this Agreement and applicable law (including without
limitation any liability that any Secured Creditor may have to any other
Secured Creditor as a result of any such failure).


 


3.4                                 Permitted Actions; Restricted Prepayments.  Section 3.2
shall not be construed to limit or impair in any way the right of:  (i) any Secured Creditor (other than any
Existing Notes Creditor) to bid for or purchase Collateral at any private or
judicial foreclosure upon such Collateral initiated by any Secured Creditor, (ii) any
Secured Creditor to join (but not control) any foreclosure or other judicial
lien enforcement proceeding with respect to the Collateral initiated by another
Secured Creditor for the sole purpose of protecting such Secured Creditor’s
Lien on the Collateral, so long as it does not delay or interfere with the
exercise by such other Secured Creditor of its rights under this Agreement, the
Obligation Documents and under applicable law and (iii) the Junior Secured
Creditor to exercise any rights expressly granted to them under this Agreement,
subject to the provisions hereof, and to receive any remaining proceeds of
Collateral that as to such Junior Secured Creditor is Non-Priority Collateral
after the Priority Obligations have been Paid in Full.  No Existing Notes Creditor shall exercise any
right to credit bid its Existing Notes Obligations, or claims in respect
thereof, at any private or judicial foreclosure upon such Collateral initiated
by any Secured Creditor.


 


3.5                                 Collateral In Possession.


 


(a)                                  Each of the Revolving Agent and the Term Loan Agent and the
Existing Notes Agent hereby acknowledges that, to the extent that it holds, or
a third party holds on its behalf, physical possession of or has “control” (as
defined in the UCC) over Collateral for purposes of perfecting its Lien
therein, such possession or control is also for the benefit of, and the
Revolving Agent and the Term Loan Agent, or such third party on its behalf, as
applicable, will be deemed to be holding such Collateral as agent for, the Term
Loan Agent and the other Term Loan Creditors or the Revolving Agent and the
other Revolving Creditors and the Existing Notes Agent and the other Existing
Notes Creditors, as applicable, as agent and bailee for perfection, solely to
the extent required to perfect their security interests in such
Collateral.  Nothing in the preceding
sentence shall be construed to impose any duty on the Revolving Agent or the
Term Loan Agent or Existing Notes Agent (or any third party acting on either
such


 


33

















 


Person’s
behalf) with respect to such Collateral or provide the Term Loan Agent, any
other Term Loan Creditor, the Revolving Agent or any other Revolving Creditor,
or the Existing Notes Agent or any other Existing Notes Creditor, as
applicable, with any rights with respect to such Collateral beyond those specified
in this Agreement, the Revolving Credit Documents and the Term Loan Credit
Documents and the Existing Notes Documents, as applicable.  Promptly following the Term Loan Termination
Date or Revolving Credit Termination Date, as the case may be, the Term Loan
Agent or the Revolving Agent, as the case may be, shall, upon the request of
the Revolving Agent or the Term Loan Agent, as the case may be, deliver, or
cause any third party holding such Collateral on its behalf to deliver, the
remainder of the Collateral, if any, in its possession to the designee of the
requesting Secured Creditor (except as may otherwise be required by applicable
law or court order).  Promptly following
the later of the Term Loan Termination Date and the Revolving Credit Termination
Date, the Term Loan Agent or the Revolving Agent, as the case may be, shall,
upon the request of the Existing Notes Agent, deliver, or cause any third party
holding such Collateral on its behalf to deliver, the remainder of the
Collateral, if any, in its possession to the designee of the Existing Notes
Creditor (except as may otherwise be required by applicable law or court
order).


 


(b)                                 It is understood and agreed that this Section 3.5
is intended solely to assure continuous perfection of the Liens granted under
the applicable Obligation Documents, and nothing in this Section 3.5
shall be deemed or construed as altering the priorities or obligations set
forth elsewhere in this Agreement.  The
duties of each party under this Section 3.5 shall be mechanical and
administrative in nature, and no party shall have, or be deemed to have, by
reason of this Agreement or otherwise a fiduciary relationship in respect of
the other party.


 


3.6                                 Waiver of Marshalling and Similar Rights.  Each Secured
Creditor, to the fullest extent permitted by applicable law, waives as to each
other Secured Creditor any requirement regarding, and agrees not to demand,
request, plead or otherwise claim the benefit of, any marshalling,
appraisement, valuation or other similar right that may otherwise be available
under applicable law.


 


3.7                                 Insurance and Condemnation Awards.  So long as the Term
Loan Termination Date has not occurred, the Term Loan Agent, and so long as the
Revolving Credit Termination Date has not occurred, the Revolving Agent, shall
have the exclusive right, subject to the rights of the Company under the
applicable Obligation Documents, to settle and adjust claims in respect of its
Priority Collateral under policies of insurance and to approve any award
granted in any condemnation or similar proceeding, or any deed in lieu of
condemnation, in respect of its Priority Collateral.  After the occurrence of the Term Loan
Termination Date, the Revolving Agent, and after the occurrence of the
Revolving Credit Termination Date, the Term Loan Agent, shall have the
exclusive right, subject to the rights of the Company under the applicable
Obligation Documents, to settle and adjust claims in respect of its
Non-Priority Collateral under policies of insurance and to approve any award granted
in condemnation or similar proceeding, or any deed in lieu of condemnation, in
respect of its Non-Priority Collateral. 
Prior the later of the Term Loan Termination Date and the Revolving
Credit Termination Date, the Existing Loan Creditors shall have no right to
settle or adjust claims in respect of its Non-Priority Collateral under
policies of insurance or to approve any award granted in condemnation


 


34

















 


or similar
proceeding, or any deed in lieu of condemnation, in respect of its Non-Priority
Collateral.


 


3.8                                 Application of Proceeds of Priority Collateral.  (a) 
Notwithstanding the Lien priorities established pursuant hereto as between the
Revolving Creditors and the Term Loan Creditors, the parties hereto agree that
the Proceeds of Term Loan Priority Collateral shall be distributed to
satisfaction of the Term Loan Obligations and the Revolving Credit Obligations
until Paid in Full, according to the priority of application set forth below:


 


(i)                                     FIRST, to the fees and expenses of, and reimbursements and
indemnification owed to, the Term Loan Agent under this Agreement and under the
Term Loan Credit Documents to which it is a party that are unpaid as of the
applicable date of receipt of such Proceeds, and to any Secured Creditor that
has theretofore advanced or paid any such fees and expenses of, and
reimbursements and indemnification owed to, the Term Loan Agent in respect of
the Term Loan Priority Collateral, in an amount equal to the amount thereof so
advanced or paid by such Secured Creditor,


 


(ii)                                  SECOND, to the pro rata
payment of the then unpaid Term Loan Obligations and Revolving Credit
Obligations (pro rata based on the aggregate
outstanding amount thereof as of the date of payment after giving pro forma
effect to any substantially simultaneous application of Proceeds of Revolving
Credit Priority Collateral to satisfaction of the Revolving Credit
Obligations), until Paid in Full,


 


(iii)                               THIRD, to the payment of the Existing Notes Obligations then
due and owing, and


 


(iv)                              FOURTH, to the Company and the other Obligors or their
successors or assigns, as their interests may appear, or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.


 


(b) 
In accordance with the Lien priorities established pursuant hereto as between
the Revolving Creditors, the Term Loan Creditors and the Existing Notes
Creditors, the parties hereto agree that the Proceeds of Revolving Credit
Priority Collateral shall be distributed to satisfaction of the Revolving
Credit Obligations, the Term Loan Obligations and the Existing Notes
Obligations until Paid in Full, according to the priority of application set
forth below:


 


(i)                                     FIRST, to the fees and expenses of, and reimbursements and
indemnification owed to, the Revolving Agent under this Agreement and under the
Revolving Credit Documents to which it is a party that are unpaid as of the
applicable date of receipt of such Proceeds, and to any Secured Creditor that
has theretofore advanced or paid any such fees and expenses of, and
reimbursements and indemnification owed to, the Revolving Agent in respect of
the Revolving Credit Priority Collateral, in an amount equal to the amount
thereof so advanced or paid by such Secured Creditor,


 


(ii)                                  SECOND, to the payment of the then unpaid Revolving Credit
Obligations (after giving pro forma effect to any substantially simultaneous
application of Proceeds of Term Loan Priority Collateral to satisfaction of the
Revolving Credit Obligations), until Paid in Full,


 


35

















 


(iii)                               THIRD, to the payment of the then unpaid Term Loan
Obligations, until Paid in Full,


 


(iv)                              FOURTH, to the payment of the Existing Notes Obligations then
due and owing, and


 


(v)                                 FIFTH, to the Company and the other Obligors or their
successors or assigns, as their interests may appear, or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.


 


Section 4.                                            Covenants


 


4.1                                 Amendment of Term Loan Credit Documents.  The Term Loan
Creditors may at any time and from time to time and without consent of or
notice to the Revolving Agent or any other Revolving Creditor or the Existing
Notes Agent or any other Existing Notes Creditor, without incurring any
liability to the Revolving Agent or any other Revolving Creditor or the
Existing Notes Agent or any other Existing Notes Creditor, and without
impairing or releasing any rights or obligations hereunder or otherwise, amend,
restate, supplement, modify, substitute, Refinance, renew or replace any or all
of the Term Loan Credit Documents; provided, however, that Term
Loan Creditors agree, solely for the benefit of the Revolving Agent and the
other Revolving Creditors and not for the benefit of the Existing Notes
Creditors, that they shall not amend, restate, supplement, modify, substitute,
Refinance, renew or replace any or all of the Term Loan Credit Documents in any
manner that would violate the Term Loan Refinancing Conditions and shall not
impose any mandatory prepayments not in existence in the Term Loan Credit
Documents as in effect on the date hereof.


 


4.2                                 Amendments to Revolving Credit Documents.  The Revolving
Creditors may at any time and from time to time and without consent of or
notice to any Term Loan Creditor, without incurring any liability to the Term
Loan Agent or any other Term Loan Creditor and without impairing or releasing
any rights or obligations hereunder or otherwise, amend, restate, supplement,
modify, substitute, Refinance, renew or replace any or all of the Revolving
Credit Documents; provided, however, that the Revolving Creditors
agree, solely for the benefit of the Term Loan Agent and the other Term Loan
Creditors and not for the benefit of the Existing Notes Creditors, that they
shall not amend, restate, supplement, modify, substitute, Refinance, renew or
replace any or all of the Revolving Credit Documents in any manner that would
violate the Revolving Credit Refinancing Conditions.


 


4.3                                 Amendments to Existing Notes Documents.  The Existing Notes
Creditors may at any time and from time to time and without consent of or
notice to any Term Loan Creditor or Revolving Creditor, without incurring any
liability to the Term Loan Agent or any other Term Loan Creditor or the Revolving
Agent or any other Revolving Creditor and without impairing or releasing any
rights or obligations hereunder or otherwise, amend, restate, supplement,
modify, substitute, Refinance, renew or replace any or all of the Existing
Notes Documents; provided, however, that Existing Notes Creditors
shall not amend, restate, supplement, modify, substitute, Refinance, renew or
replace any or all of the Existing Notes Documents in any manner that would
violate the Existing Notes Refinancing Conditions.


 


36

















 


4.4                                 Enforcement Actions by Junior Secured Creditors.  Each Junior Secured
Creditor shall give the Priority Secured Creditor at least 10 Business Days’
written notice prior to taking any Enforcement Action as to any Collateral
that, as to such Junior Secured Creditor, is Non-Priority Collateral, which
notice may be given during the pendency of any Standstill Period.  Notwithstanding the foregoing, the Existing
Notes Creditors shall not take any Enforcement Action as to any Collateral
prior to Payment in Full of all Revolving Credit Obligations and all Term Loan
Obligations.


 


4.5                                 Legend; Authority.  Term Loan Agent and Revolving Agent and
Existing Notes Agent agree to cause Term Loan
Credit Agreement, the Revolving Credit Agreement and the Existing Notes
Indenture, respectively, and each
related mortgage and each other security document, to contain the following
legend:


 


“THIS
[AGREEMENT][INDENTURE] AND THE RIGHTS OF THE PARTIES HEREUNDER ARE SUBJECT TO
THE PROVISIONS OF THE OMNIBUS INTERCREDITOR AGREEMENT DATED AS OF [                                    ],
20[    ], BETWEEN [                      ]
AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE [COMPANY AND
THE GUARANTORS][COMPANY AND THE OTHER [GRANTORS][OBLIGORS]], AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.”


 


Notwithstanding
the foregoing, if the jurisdiction in which any of the foregoing documents will
be filed prohibits the inclusion of any language above or would prevent a
document containing any such language from being recorded, the parties hereto,
agree, prior to such document being entered into, to negotiate in good faith
replacement language stating that the Liens granted under such document are
subject to the provisions of this Agreement.


 


Term Loan
Agent and Revolving Agent and Existing Notes Agent agree to cause the Term Loan
Credit Agreement, the Revolving Credit Agreement and the Existing Notes
Indenture, respectively, to contain the following provision:


 


“The
[Lenders][Holders][other applicable term], [by their acceptance of the
[Notes]][by their execution and delivery hereof], hereby irrevocably authorize
and direct the [Agent][Trustee][other applicable term] to enter into the
Omnibus Intercreditor Agreement [as defined herein] on behalf of the
[Agent][Trustee][other applicable term] and the [Lenders][Holders][other
applicable term], and agree to be bound by the provisions thereof as if they
were direct signatories thereof, and to take all actions required to be taken
by them in accordance with the provisions thereof, and to otherwise comply
therewith, and irrevocably authorize and direct the [Agent][Trustee][other
applicable term] to take all actions on its or the [Lenders’][Holders’][other
applicable term] behalf as are necessary to comply with the provisions thereof.  The rights
and remedies of the [Agent][Trustee][other applicable term], on behalf of the
[Lenders][Holders][other applicable term], under this [Agreement][Indenture]
shall be subject to the Omnibus Intercreditor Agreement as in effect from time
to time.  In the event of any conflict
between the terms of the Omnibus Intercreditor Agreement and this
[Agreement][Indenture], the terms of the Omnibus Intercreditor Agreement shall govern
and control.”


 


37

















 


Section 5.                                            Purchase
Options


 


5.1                                 Term Loan Agent Purchase Option.


 


(a)                                  Purchase Notice.  The Term Loan Creditors, acting through the
Term Loan Agent as a single group, shall have the option to purchase from the
Revolving Agent all but not less than all of the Revolving Credit Obligations
at any time following the (i) acceleration of the Revolving Credit
Obligations or termination of the commitment thereunder, (ii) the first
commencement of an Enforcement Action by Revolving Agent with respect to a
material portion of the Revolving Credit Priority Collateral or (iii) the
commencement of any Insolvency Proceeding. 
The Revolving Agent shall promptly deliver to the Term Loan Agent notice
of the first to occur of the events described in clauses (i), (ii) or (iii) of
this paragraph (a).  The Term Loan Agent
(on behalf of the exercising Term Loan Creditors (the “Revolving
Credit Obligations Purchaser”)) shall exercise this option by giving
written notice (the “Term Loan  Agent’s Purchase Notice”) of its election to the Revolving
Agent within ten (10) Business Days following the delivery to the Term
Loan Agent of such notice.  The Term Loan
Agent’s Purchase Notice, once delivered, shall be irrevocable and shall not be
subject to withdrawal or rescission.


 


(b)                                 Purchase Option Closing.  On the date specified by Term Loan Agent in
the Term Loan Agent’s Purchase Notice (which shall not be less than 3 Business
Days nor more than 15 Business Days after delivery to the Revolving Agent of
the Term Loan Agent’s Purchase Notice) (the “Revolver
Purchase Option Closing Date”),
Revolving Creditors shall sell to Revolving Credit Obligations Purchaser and
the Revolving Credit Obligations Purchaser shall purchase from Revolving
Creditors the Revolving Credit Obligations, without recourse, representation or
warranty  (except as set forth in Section 5.1(e) below).


 


(c)                                  Purchase Price.  Such purchase and sale shall be made by
execution and delivery by the applicable parties of an assignment agreement in
form and substance reasonably satisfactory to all such parties.  On the Revolving Purchase Option Closing
Date, the Revolving Credit Obligations Purchaser  shall
(i) pay to the Revolving Agent as the purchase price an amount equal to
100% of the Revolving Credit Obligations outstanding on the date of payment to
Revolving Agent (including, without limitation, all unpaid interest, fees and
any other charges accruing after the commencement of a bankruptcy, insolvency
or liquidation proceeding, to the extent such amounts are allowed or are
recoverable pursuant to Section 506 of the Bankruptcy Code or otherwise)
other than Revolving Credit Obligations cash collateralized in accordance with clause
(ii) below, then outstanding and unpaid, (ii) furnish cash
collateral to Revolving Agent in such amounts as Revolving Agent determines is
reasonably necessary to secure Revolving Agent in connection with any issued
and outstanding Letters of Credit constituting Revolving Credit Obligations
(but not in any event in an amount greater than 105% of the aggregate undrawn
amount of such Letters of Credit) and any costs, expenses and indemnification
obligations not yet due and payable but with respect to which a claim has been
threatened or asserted in writing under any Obligation Document, (iii) agree
to reimburse Revolving Creditors for any loss, cost, damage or expense
(including reasonable attorneys’ fees and legal expenses) in connection with
any commissions, fees, costs or expenses related to any issued and outstanding
letters of credit and any checks or other payments provisionally credited to
the Revolving Credit Obligations, and/or as to which Revolving Creditors have
not yet received final payment and (iv) assume any then existing loan commitment
thereunder. The


 


38

















 


purchase
price shall be remitted by wire transfer or immediately available funds to such
bank account of the Revolving Agent as the Revolving Agent may designate in
writing to Term Loan Agent for such purpose. 
Interest shall be calculated to but excluding the Business Day on which
such purchase and sale shall occur if the amounts so paid by the Revolving
Credit Obligations Purchaser to the bank account designated by the Revolving
Agent are received in such bank account prior to 2:00 p.m. New York
time.  Subject to the provisions of Section 5.1(d),
following the consummation of such purchase, the Revolving Credit Obligations
Purchaser shall be entitled to all rights and benefits under the Revolving
Credit Documents to which the Revolving Creditors were entitled immediately
prior to consummation of such purchase, including the right to receive fee
income, expense reimbursement and indemnification.  All cash collateral and other amounts
delivered or paid pursuant to clause (ii) of the preceding sentence in
excess of amounts finally determined to be necessary to satisfy all
reimbursements, costs, expenses and indemnification obligations owing in
respect of items referred to in such clause (ii) shall be repaid to the
Revolving Credit Obligations Purchaser for distribution pro rata to the Persons
who paid such amounts to the Revolving Agent pursuant to such clause (ii).


 


(d)                                 Survival of Indemnification Rights; Excess Revolving Credit
Obligations.  Notwithstanding the foregoing provisions of
this Section 5.1, (i) no sale of the Revolving Credit
Obligations shall terminate or impair any Obligor’s obligations to indemnify
the Revolving Creditors pursuant to the Revolving Credit Documents, all of
which indemnity obligations shall survive any such sale or assignment as an
unsecured obligation of such Obligor; (ii) as between any Obligor and the
Revolving Creditors, no such indemnification obligations shall be amended or
modified without the Revolving Agent’s prior written consent; and (iii) Revolving
Creditors shall retain all rights under the Revolving Credit Documents with
respect to Excess Revolving Credit Obligations, but shall have no right to
exercise any such rights until all Revolving Credit Obligations and Term Loan
Obligations have been Paid in Full, unless the Term Loan Agent shall otherwise
agree and any such exercise must otherwise comply with the terms of this
Agreement.


 


(e)                                  Representations and Warranties.  Such purchase and sale shall be expressly
made with the following representations and warranties by the Revolving
Creditors:  (i)  the amount of the
Revolving Credit Obligations being purchased (including the principal of and
accrued and unpaid interest on and fees, including breakage fees and other
charges in connection with, such Revolving Credit Obligations), and the extent
of any existing loan commitment thereunder, (ii) that the Revolving
Creditors own the Revolving Credit Obligations being purchased free and clear
of any liens granted by the Revolving Creditors or Revolving Agent, and (iii) the
Revolving Creditors have the full right and power to assign the Revolving
Credit Obligations being purchased and such assignment has been duly authorized
by all necessary action by Revolving Agent.


 


(f)                                    Early Termination Fee.  If any early termination fee, prepayment
premium, yield maintenance or similar fee is provided for under the Revolving
Credit Documents at the time of the purchase and sale under this Section 5.1
but is not yet due and payable under the Revolving Credit Documents and
otherwise due as part of the purchase price under Section 5.1(c),
Term Loan Creditors agree not to modify or reduce such fee and, if such fee
becomes due and payable within 90 days after such purchase and sale, Term Loan
Creditors


 


39

















 


shall remit
such fee to Revolving Agent as and when such fee is paid by Company or such
other Obligors.


 


5.2                                 Revolving Agent Purchase Option


 


(a)                                  Purchase Notice.  Revolving Creditors shall have the option to
purchase from the Term Loan Creditors all but not less than all of the Term
Loan Obligations at any time following (i) Term Loan Agent or Term Loan
Creditors have accelerated the maturity of all or a material portion of the
Term Loan Obligations, (ii) the commencement of an Enforcement Action by
Term Loan Agent with respect to a material portion of the Term Loan Priority
Collateral, (iii) the commencement of any Insolvency Proceeding, or (iv) the
extension of the final maturity date of the Term Loan Obligations.  The Term Loan Agent shall promptly deliver to
the Revolving Agent notice of the first to occur of the events described in
clauses (i), (ii), (iii) or (iv) of this paragraph (a). Revolving
Agent (on behalf of the exercising Revolving Creditors (the “Term  Obligations Purchaser”))
shall exercise this option by giving written notice (the “Revolving
Agent’s  Purchase Notice”)
of its election to Term Loan Agent within ten (10) Business Days following
the delivery of such notice.  The
Revolving Agent’s Purchase Notice, once delivered, shall be irrevocable and
shall not be subject to withdrawal or rescission.


 


(b)                                 Purchase Option Closing.  On the date specified by Revolving Agent in
the Purchase Notice (which shall not be less than 3 Business Days nor more than
15 Business Days after delivery to the Term Loan Agent of the Revolving Agent’s
Purchase Notice) (the “Term Loan Purchase Option
Closing Date”), Term Loan Creditors shall sell to the Term
Obligations Purchaser, and Term Obligations Purchaser shall purchase from Term
Loan Creditors the Term Loan Obligations, without recourse, representation or
warranty  (except as set forth in Section 5.2(e) below).


 


(c)                                  Purchase Price.  Such purchase and sale shall be made by
execution and delivery by the applicable parties of an assignment agreement in
form and substance reasonably satisfactory to all such parties.  On the Term Loan Purchase Option Closing
Date, the Term Obligations Purchaser shall (i) pay to the Term Loan Agent,
for the benefit of the Term Loan Creditors, as the purchase price an amount
equal to 100% of the Term Loan Obligations outstanding on the date of payment
to Term Loan Agent (including, without limitation, all unpaid interest, fees
and any other charges accruing after the commencement of a bankruptcy,
insolvency or liquidation proceeding, to the extent such amounts are allowed or
are recoverable pursuant to Section 506 of the Bankruptcy Code or
otherwise) other than Term Loan Obligations cash collateralized in accordance
with clause (ii) below, then outstanding and unpaid and (ii) furnish
cash collateral to Term Loan Agent in such amounts as Term Loan Agent
determines is reasonably necessary to secure Term Loan Agent in connection with
any Term Loan Hedging Obligation and any costs, expenses and indemnification
obligations not yet due and payable but with respect to which a claim has been
threatened or asserted in writing under any Obligation Document. The purchase
price shall be remitted by wire transfer or immediately available funds to such
bank account of the Term Loan Agent, for the benefit of the Term Loan
Creditors, as Term Loan Agent may designate in writing to Revolving Agent for
such purpose.  Interest shall be calculated
to but excluding the Business Day on which such purchase and sale shall occur
if the amounts so paid by the Term Obligations Purchaser to the bank account
designated by Term Loan Agent are received in such bank account prior to 2:00 p.m.
New York time.  Subject to the


 


40

















 


provisions
of Section 5.2(d), following the consummation of such purchase, the
Term Obligations Purchaser shall be entitled to all rights and benefits under
the Term Loan Credit Documents to which the Term Loan Creditors were entitled
immediately prior to consummation of such purchase, including the right to
receive fee income, expense reimbursement and indemnification.  All cash collateral and other amounts
delivered or paid pursuant to clause (ii) of the preceding sentence in
excess of amounts finally determined to be necessary to satisfy all
reimbursements, costs, expenses and indemnification obligations owing in
respect of items referred to in such clause (ii) shall be repaid to the
Term Obligations Purchaser for distribution pro rata to the Persons who paid
such amounts to the Term Loan Agent pursuant to such clause (ii).


 


(d)                                 Survival of Indemnification Rights; Excess Term Loan
Obligations.  Notwithstanding the foregoing provisions of
this Section 5.2, (i) no sale of the Term Loan Obligations
shall terminate or impair any Obligor’s obligations to indemnify the Term Loan
Creditors pursuant to the Term Loan Credit Documents, all of which indemnity
obligations shall survive any such sale or assignment as an unsecured
obligation of such Obligor; (ii) as between any Obligor and the Term Loan
Creditors, no such indemnification obligations shall be amended or modified
without Term Loan Creditors prior written consent; and
(iii) Term Loan Creditors shall retain all rights under the Term Loan
Credit Documents with respect to Excess Term Obligations but shall have no
right to exercise any such rights until all Term Loan Obligations and Revolving
Credit Obligations have been Paid in Full, unless Revolving Agent shall
otherwise agree, and any such exercise must otherwise comply with the terms of
this Agreement.


 


(e)                                  Representations and Warranties.  Such purchase and sale shall be made without
representation or warranty of any kind by Term Loan Creditors and without
recourse to Revolving Agent, except for the following representations and
warranties by the Term Loan Creditors:  (i) 
the amount of the Term Loan Obligations being purchased (including the
principal of and accrued and unpaid interest on and fees, including other
charges in connection with, such Term Loan Obligations), and the extent of any
existing loan commitment thereunder, (ii) that the Term Loan Creditors own
the Term Loan Obligations being purchased free and clear of any liens granted
by the Term Loan Creditors or Term Loan Agent, and (iii) each of the Term
Loan Creditors has the full right and power to assign the Term Loan Obligations
being purchased and such assignment has been duly authorized by all necessary
action by the Term Loan Creditors.


 


(f)                                    Early Termination Fee.  If any early termination fee, prepayment
premium, yield maintenance or similar fee is provided for under the Term Loan
Credit Documents at the time of the purchase and sale under this Section 5.2
but is not yet due and payable under the Term Loan Credit Documents and
otherwise due as part of the purchase price under Section 5.2(c),
the Revolving Creditors agree not to modify or reduce such fee and, if such fee
becomes due and payable within 90 days after such purchase and sale, Revolving
Creditors shall remit such fee to the Term Loan Agent as and when such fee is
paid by Company or such other Obligors.


 


5.3                                 Existing Notes Purchase Option.  Existing
Notes Creditors shall not have any option to purchase from the Term Loan
Creditors or the Revolving Creditors any of the Term Loan Obligations or the
Revolving Credit Obligations, respectively, at any time.


 


41

















 


Section 6.                                            Bankruptcy
Matters.


 


6.1                                 Post Petition Financing; Cash Collateral.


 


(a)                                  If any Obligor or Obligors shall become subject to Insolvency
Proceedings and such Obligor or Obligors as debtor(s)-in-possession (or a
trustee appointed on behalf of such Obligor or Obligors) shall move for
approval of financing (“DIP Financing”)
to be provided by one or more of the Revolving Creditors (or to be provided by
another person or group with the consent of the Revolving Agent) under the
Bankruptcy Code (“Revolving Creditor DIP Financing”) or the use of cash
collateral that is Revolving Credit Priority Collateral (“Revolver
Cash Collateral”) with the consent (or non-objection) of the
Revolving Creditors under the Bankruptcy Code, and the Revolving Agent on
behalf of the Revolving Creditors consents (or does not object) to such use of
Revolver Cash Collateral or Revolving Creditor DIP Financing, then subject to Section 6.2,
the Term Loan Creditors and the Existing Notes Creditors
agree as follows:


 


(i)                                     adequate notice to Term Loan Creditors and the Existing Notes
Creditors for such Revolving Creditor DIP Financing or use of Revolver
Cash Collateral shall be deemed to have been given to the Term Loan Creditors
and the Existing Notes Creditors if the Term Loan Agent and
the Existing Notes Agent, as applicable, receives at least 5 Business Days
notice in advance of the hearing to approve such Revolving Creditor DIP
Financing or Revolver Cash Collateral on an interim basis and at least 15 days
in advance of the hearing to approve such Revolving Creditor DIP Financing or
use of Revolver Cash Collateral on a final basis,


 


(ii)                                  subject to the satisfaction of the conditions in clause
(iii)(A), (B) and (C) below, such Revolving Creditor DIP Financing
(and any Revolving Credit Obligations which arose prior to the Insolvency
Proceeding) may be secured by Liens on all or a part of the Revolving Credit
Priority Collateral which shall be superior in priority to the Liens on the
Revolving Credit Priority Collateral held by any other Person (or pari passu in priority with the Liens of the Revolving
Creditors in the Revolving Credit Priority Collateral securing the Revolving
Credit Obligations and senior to the Liens on the Revolving Credit Priority
Collateral of any other Person), and


 


(iii)                               so long as (A) the aggregate principal amount of loans
and letter of credit obligations outstanding under any such Revolving Creditor
DIP Financing, together with the outstanding principal amount of the
pre-petition Revolving Credit Obligations, does not exceed the Maximum
Revolving Credit Principal Amount plus $3,000,000, (B) the
Term Loan Creditors and the Existing Notes Creditors
retain a Lien on the Revolving Credit Priority Collateral (including proceeds
thereof arising after the commencement of such proceeding) with the same
priority as existed prior to the commencement of the case under the Bankruptcy
Code or similar Bankruptcy Law (junior in priority as to Revolving Credit
Priority Collateral securing such Revolving Creditor DIP Financing and junior
in priority as to Revolving Credit Priority Collateral securing the Revolving
Credit Obligations, including Senior Adequate Protection Liens and junior to
any “carve-out” agreed to by the Revolving Agent or other Revolving Creditors
(and in the case of the Existing Notes Creditors junior in priority as to


 


42

















 


Revolving Credit Priority
Collateral to the Liens thereon securing the Term Loan Obligations)) and (C) the
Term Loan Creditors and the Existing Notes Creditors
receive a replacement Lien on post-petition assets, with the same priority as
existed prior to the commencement of the case under the Bankruptcy Code or
similar Bankruptcy Law (junior in priority to the Liens securing such Revolving
Creditor DIP Financing, to any such “carve-out” and to the existing Liens in
favor of the Revolving Agent on the Revolving Credit Priority Collateral, and
in the case of the Existing Notes Creditors junior in priority to the Liens on
the Revolving Credit Priority Collateral securing the Term Loan Obligations),


 


(1)                                  the Term Loan Creditors and the Existing Notes Creditors will not request or accept adequate protection or any other
relief in connection with the use of such Revolver Cash Collateral or the Liens
on Revolving Credit Priority Collateral securing such Revolving Creditor DIP
Financing except as set forth in Section 6.2 below,


 


(2)                                  the Term Loan Creditors and the Existing Notes Creditors will subordinate (and will be deemed hereunder to have
subordinated) their Liens in their Non-Priority Collateral (X) to the
Liens securing such Revolving Creditor DIP Financing on the same terms (but on
a basis junior to the Liens in Priority Collateral of the Revolving Creditors
and, in the case of the Existing Loan Creditors, to the Liens of the Term Loan
Creditors in such Revolving Credit Priority Collateral) as the Liens of the
Revolving Creditors in their Priority Collateral are subordinated thereto (and,
in the case of the Existing Loan Creditors, to the Liens of the Term Loan
Creditors in such Revolving Credit Priority Collateral) (except that if the
Liens securing such Revolving Creditor DIP Financing are to be pari passu in priority with the Liens of the Revolving
Creditors in the Revolving Credit Priority Collateral securing the Revolving
Credit Obligations, the Term Loan Creditors and the Existing Notes Creditors shall nonetheless subordinate their Liens in such
Non-Priority Collateral to such Liens (and, in the case of the Existing Loan
Creditors, to the Liens of the Term Loan Creditors in such Revolving Credit
Priority Collateral) and such subordination will not alter in any manner the
terms of this Agreement), (Y) to any Senior Adequate Protection Liens or “replacement
Liens” granted to the Revolving Creditors (and, in the case of the Existing
Loan Creditors, to any Senior Adequate Protection Liens or “replacement Liens” granted
to the Term Loan Creditors) as adequate protection of their interests in their
Priority Collateral (or, in the case of the Term Loan Creditors in relation to
the Existing Notes Creditors, as adequate protection of the Term Loan Creditors’
interests in any Collateral), and (Z) to any “carve-out” in an aggregate
amount agreed to by the Revolving Agent or the other Revolving Creditors , provided
that such “carve-out” shall be applied to the Revolving Credit Priority
Collateral, whether such Collateral existed before or after the petition date,
and


 


(3)                                  the Term Loan Creditors and the Existing Notes Creditors (X) shall
not contest or oppose in any manner, any Revolving Creditor DIP Financing, or
any Revolver Cash Collateral use or any adequate protection


 


43
















 


provided to the Revolving Creditors
as adequate protection of their interests in their Priority Collateral, (Y) shall
be deemed to have waived any objections to such adequate protection, Revolving
Creditor DIP Financing or Revolver Cash Collateral use, including, without limitation, any objection alleging Obligors’ failure
to provide “adequate protection” of the interests of the Term Loan Creditors or
the Existing Notes Creditors and (Z) shall be deemed to have consented to
the carve-out and to the subordination of the Liens of the Term Loan Agent and
the Existing Notes Agent in the Revolving Credit Priority Collateral that
secures the Revolving Credit DIP Financing, in each case pursuant to clause (2) above.


 


(b)                                 If any Obligor or Obligors shall become subject to Insolvency
Proceedings and such Obligor or Obligors as debtor(s)-in-possession (or a
trustee appointed on behalf of such Obligor or Obligors) shall move for
approval of DIP Financing to be provided by one or more of the Term Loan Creditors or by a third
party under the Bankruptcy Code (“Term Loan Creditor DIP Financing”) or the
use of cash collateral that is Term
Loan Priority Collateral (“Term Loan Cash Collateral”)
with the consent (or non-objection) of the Term Loan Creditors under the Bankruptcy Code, and the Term Loan
Agent on behalf of the Term Loan Creditors consents (or does not object) to
such use of the Term Loan Cash Collateral or Term Loan Creditor DIP Financing,
then subject to Section 6.2,
the Revolving Creditors and the Existing Notes Creditors agree as follows:


 


(i)                                     adequate notice to Revolving Creditors and the Existing Notes
Creditors for such Term Loan Creditor DIP Financing or use of Term Loan Cash Collateral shall be
deemed to have been given to the Revolving Creditors and the Existing Notes
Creditors if the Revolving Agent and the and the Existing Notes Agent receives
notice at least 5 Business Days in advance of the hearing to approve such Term Loan Creditor DIP Financing or Term Loan Cash Collateral on an
interim basis and at least 15 days in advance of the hearing to approve such Term Loan Creditor DIP Financing or
use of Term Loan Cash Collateral
on a final basis,


 


(ii)                                  subject to the satisfaction of the conditions in clause
(iii)(A), (B) and (C) below, such Term Loan Creditor DIP Financing (and any Term Loan Obligations which arose prior to the Insolvency
Proceeding) may be secured by Liens on all or a part of the Term Loan Priority Collateral which
shall be superior in priority to the Liens on the Term Loan Priority Collateral held by any other Person (or pari passu in priority with the Liens of the Term Loan
Priority Collateral securing the Term Loan Liens and senior to the Liens of any
other Person), and


 


(iii)                               so long as (A) the aggregate principal amount of loans
and letter of credit accommodations outstanding under any such Term Loan Creditor DIP Financing,
together with the outstanding principal amount of the pre-petition Term Loan Obligations, does not exceed
the Maximum Term Loan Principal
Amount plus $20,000,000, (B) the
Revolving Creditors and the Existing Notes Creditors retain a Lien on the Term Loan Priority Collateral
(including proceeds thereof arising after the commencement of such proceeding)
with the same priority as existed prior to the commencement of the case under
the Bankruptcy Code or similar Bankruptcy Law 


 


44

















 


(junior in priority as to Term Loan Priority Collateral securing
such Term Loan Creditor DIP
Financing or Term Loan Obligations,
including Senior Adequate Protection Liens and junior to any “carve-out” agreed
to by the Term Loan Agent or
other Term Loan Creditors (and
in the case of the Existing Notes Creditors junior in priority as to Term Loan
Priority Collateral to the Liens thereon securing the Revolving Credit
Obligations)) and (C) the Revolving Creditors and the Existing Notes Creditors receive a replacement Lien on post-petition assets, with the
same priority as existed prior to the commencement of the case under the
Bankruptcy Code or similar Bankruptcy Law (junior in priority to the Liens
securing such Term Loan Creditor
DIP Financing, to any such “carve-out” and to the existing Liens in favor of
the Term Loan Agent on the Term Loan Priority Collateral (and in
the case of the Existing Notes Creditors junior in priority to the Liens on the
Term Loan Priority Collateral securing the Revolving Credit Obligations)),


 


(1)                                  the Revolving Creditors and the Existing Notes Creditors will not request or accept adequate protection or any other
relief in connection with the use of such Term Loan Cash Collateral or the Liens on Term Loan Priority Collateral securing such Term Loan Creditor DIP Financing
except as set forth in Section 6.2 below,


 


(2)                                  the Revolving Creditors and the Existing Notes Creditors will subordinate (and will be deemed hereunder to have
subordinated) their Liens in their Non-Priority Collateral (X) to the
Liens securing such Term Loan Creditor
DIP Financing on the same terms (but on a basis junior to the Liens in Priority
Collateral of the Term Loan Creditors
and, in the case of the Existing Loan Creditors, to the Liens of the Revolving
Creditors in such Term Loan Priority Collateral) as the Liens of the Term Loan Creditors in their Priority
Collateral are subordinated thereto (and, in the case of the Existing Loan
Creditors, to the Liens of the Revolving Creditors in such Term Loan Priority
Collateral)(except that if the Liens securing such Term Loan Creditor DIP
Financing are to be pari passu in
priority with the Liens of the Term Loan Creditors in the Term Loan Priority
Collateral securing the Term Loan Obligations, the Revolving Creditors and the
Existing Notes Creditors shall nonetheless subordinate their Liens in such
Non-Priority Collateral to such Liens (and, in the case of the Existing Loan
Creditors, to the Liens of the Revolving Creditors in such Term Loan Priority
Collateral) and such subordination will not alter in any manner the terms of
this Agreement), (Y) to any Senior Adequate Protection Liens or “replacement
Liens” granted to the Term Loan Creditors
as adequate protection of their interests in their Priority Collateral (or, in
the case of the Revolving Creditors in relation to the Existing Notes
Creditors, as adequate protection of the Revolving Creditors’ interests in any
Collateral), and (Z) to any “carve-out” agreed to by the Term Loan Agent or the other Term Loan Creditors, provided
that such “carve-out” shall be applied to the Term Loan Priority Collateral,
whether such Collateral existed before or after the petition date, and


 


(3)                                  the Revolving Creditors (X) shall not contest or oppose
in any manner any Term Loan Creditor
DIP Financing, or any Term Loan Cash
Collateral use or any adequate protection provided to the Term Loan Creditors as 


 


45

















 


adequate protection of their
interests in their Priority Collateral, (Y) shall be deemed to have waived
any objections to such adequate protection, Term Loan Creditor DIP Financing or Term Loan Cash Collateral use, including, without limitation, any objection alleging Obligors’ failure
to provide “adequate protection” of the interests of the Revolving Creditors or
the Existing Notes Creditors and (Z) shall
be deemed to have consented to the carve-out and to the subordination of the Liens
of the Revolving Agent and the Existing Notes Agent in the Term Loan Priority Collateral that
secures the Term Loan Creditor DIP Financing, in each case pursuant to clause (2) above.


 


(c)                                  The Term Loan Creditors shall not, directly or indirectly,
offer to provide, support any other Person in providing, provide or seek to
provide DIP Financing secured by Liens equal or senior to the Liens on the
Revolving Credit Priority Collateral securing the Revolving Credit Obligations,
without the prior written consent of the Revolving Agent.  In no event will any of the Term Loan
Creditors seek to obtain a priming Lien on any of the Revolving Credit Priority
Collateral and nothing contained herein shall be deemed to be a consent by
Revolving Creditors to any adequate protection payments using Revolving Credit
Priority Collateral. The Revolving Creditors shall not, directly or indirectly,
offer to provide, support any other Person in providing, provide or seek to
provide DIP Financing secured by Liens equal to or senior to the Liens on the
Term Loan Priority Collateral securing the Term Loan Obligations, without the
written consent of the Term Loan Agent. 
In no event will any of the Revolving Creditors seek to obtain a priming
Lien on any of the Term Loan Priority Collateral and nothing contained herein
shall be deemed to be a consent by Term Loan Creditors to any adequate
protection payments using Term Loan Priority Collateral.  The Existing Notes Creditors shall not,
directly or indirectly, offer to provide, support any other Person in
providing, provide or seek to provide DIP Financing secured by Liens equal or
senior to the Liens on any Collateral securing the Revolving Credit Obligations
or the Term Loan Obligations, In no event will any of the Existing Notes Creditors
seek to obtain a priming Lien on any of the Collateral and nothing contained
herein shall be deemed to be a consent by Term Loan Creditors or the Revolving
Creditors to any adequate protection payments in favor of the Existing Notes
Creditors, or in respect of their Liens on any Collateral, using any of the
Collateral.


 


6.2                                 Adequate Protection.  Notwithstanding the foregoing provisions in
this Section 6, in any Insolvency Proceeding, if any Priority
Secured Creditor (or any subset thereof) is granted adequate protection in
respect of its interests in its Priority Collateral (a “Senior
Adequate Protection Lien”) in the form of a replacement Lien, the
Junior Secured Creditors (other than any Existing Notes Creditors) may seek
(and the Priority Secured Creditors may not oppose) adequate protection of the
interests of the Junior Secured Creditors in such Priority Collateral in the
form of (i) a replacement Lien on the additional collateral subject to the
Senior Adequate Protection Liens (the “Junior Adequate Protection
Liens”), which Junior Adequate Protection Liens, if granted, will be
subordinate to all Liens (other than Liens (including Senior Adequate
Protection Liens) on Collateral that, as to such Junior Secured Creditor, is
its Priority Collateral, in which the Liens of the Junior Secured Creditor
shall remain senior, and, for clarity, other than any Liens securing the
Existing Notes Obligations) securing the Priority Obligations (including,
without limitation, the Senior Adequate Protection Liens and any “carve-out”
agreed to by the Priority Secured Creditors and any Liens securing
debtor-in-possession financing (whether or not constituting DIP Financing)) on
the same basis as the other Liens of the Junior 


 


46

















 


Secured
Creditor on the Priority Secured Creditor’s Priority Collateral securing the
Junior Obligations are so subordinated under this Agreement (provided
that any failure of the Term Loan Creditors or Revolving Creditors to obtain
such Junior Adequate Protection Liens shall not impair or otherwise affect the
agreements, undertakings and consents of the Term Loan Creditors or Revolving
Creditors pursuant to Section 6.1) and (ii) superpriority
claims under Section 507(b) of the Bankruptcy Code junior in all
respects to the superpriority claims granted under Section 507(b) of
the Bankruptcy Code to the Priority Secured Creditors on account of any of the
Priority Obligations or granted under Section 364(c)(1) of the
Bankruptcy Code with respect to any debtor-in-possession financing (whether or
not constituting DIP Financing) or use of its cash collateral (e.g. Revolver
Cash Collateral or Term Loan Cash Collateral, as applicable); provided
that the inability of the Junior Secured Creditors to receive a Lien on actions
under Chapter 5 of the Bankruptcy Code or proceeds thereof shall not affect the
agreements and waivers set forth in this Section 6.2.  No Existing Notes Creditors shall seek any
Junior Adequate Protection Liens or other adequate protection or replacement
liens, or any superpriority claims under Section 507(b) of the
Bankruptcy Code, in respect of the interests of the Existing Notes Creditors in
any Collateral


 


6.3                                 Sale of Collateral; Waivers.


 


(a)                                  In any Insolvency Proceeding, the Junior Secured Creditors
agree that they will not object to or oppose a Disposition of any Collateral
that, as to such Junior Secured Creditor, is Non-Priority Collateral, free and
clear of Liens or other claims under Section 363 of the Bankruptcy Code or
any other provision of the Bankruptcy Code, if the Priority Secured Creditors
with respect to such Collateral have consented to such Disposition.  No Junior Secured
Creditor shall  initiate or prosecute or join
with any other Person to initiate or prosecute any claim, action or other
proceeding, take any position at any hearing or proceeding of any nature, or
otherwise take any action whatsoever including, without limitation, (i) challenging
the enforceability, validity, priority (on terms inconsistent with this Agreement)
or perfected status of any Liens on any Collateral securing the Priority
Obligations of the Priority Secured Creditors under the applicable Obligation
Documents, (ii) asserting any claims which the Company or any other
Obligor may hold with respect to the Priority Secured Creditors, or (iii) determination of any other
Secured Creditor in respect of any Priority Collateral or the value of any
claims of such parties under Section 506(a) of the Bankruptcy Code or
otherwise.  No Secured Creditor will
assert a claim that challenges the perfection or validity of a Lien or
Obligations of another Secured Creditor that is based on allegations (x) of
fraudulent conveyance, unlawful payment of distributions to equity holders or
other like allegations, or (y) that could be asserted with comparable
merit against Liens, interests or rights of the Person asserting the claim.


 


(b)                                 Notwithstanding any other provision in this Agreement, any
Secured Creditor (other than any Existing Notes Creditor) may credit bid for
any assets that are subject to any Disposition in any Insolvency Proceeding in
accordance with Section 363(k) of the Bankruptcy Code; provided,
that (i) unless, prior to or in connection with a successful credit bid,
the Revolving Credit Obligations are Paid In Full, no Term Loan Creditor may
credit bid on any Revolving Credit Priority Collateral and (ii) unless,
prior to or in connection with a successful credit bid, the Term Loan
Obligations are Paid In Full, no Revolving Creditor may credit bid on any Term
Loan Priority Collateral .  No Existing
Notes Creditor may credit bid for any assets 


 


47

















 


that are
subject to any Disposition in any Insolvency Proceeding in accordance with Section 363(k) of
the Bankruptcy Code or otherwise.


 


6.4                                 Invalidated Payments.  To the extent that any Secured Creditor
receives payments on its Priority Obligations or Proceeds of Priority
Collateral for application to its Priority Obligations which are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
Bankruptcy Law, common law, equitable cause or otherwise (and whether as a
result of any demand, settlement, litigation or otherwise) (each a “Priority Claim Avoidance”), then to the extent of such
payment or Proceeds received, such Priority Obligations, or part thereof,
intended to be satisfied by such payment or Proceeds shall be revived and
continue in full force and effect as if such payments or Proceeds had not been
received by such Priority Secured Creditors, and this Agreement, if theretofore
terminated, shall be reinstated in full force and effect as of the date of such
Priority Claim Avoidance, and such prior termination shall not diminish,
release, discharge, impair or otherwise affect the Lien priorities and the
relative rights and obligations of the Priority Secured Creditors and the
Junior Secured Creditors provided for herein with respect to any event
occurring on or after the date of such Priority Claim Avoidance.  The Junior Secured Creditors further agree
that none of them shall be entitled to benefit from any avoidance action
affecting or otherwise relating to any distribution or allocation made in
accordance with this Agreement, whether by preference or otherwise, it being
understood and agreed that the benefit of such avoidance action otherwise
allocable to them shall instead be allocated and turned over for application in
accordance with the priorities set forth in this Agreement.


 


6.5                                 Payments.  Nothing in this Agreement prohibits or limits
the right of a Junior Secured Creditor (other than any Existing Notes Creditor)
to receive and retain any debt or equity securities that are issued by a
reorganized debtor in respect of its Lien in its Non-Priority Collateral
pursuant to a plan of reorganization or similar dispositive restructuring plan
in connection with an Insolvency Proceeding, provided that any debt
securities received by a Junior Secured Creditor to the extent on account of
its Junior Obligations in respect of its Non-Priority Collateral that
constitutes a “secured claim” within the meaning of Section 506(b) of
the Bankruptcy Code will be paid over or otherwise transferred to the Priority
Secured Creditor for application in accordance with Section 2.5, unless
such distribution is (x) made under a plan that is consented to by the
affirmative vote of all classes composed of the secured claims of Priority
Secured Creditors or (y) is of debt securities that (A) are secured
by a Lien on assets of the reorganized debtor which assets are, as to such
Junior Secured Creditor in its capacity as Priority Secured Creditor hereunder,
of the same character as its Priority Collateral hereunder, and (B) if
secured by assets that are of the same character as its Non-Priority Collateral
hereunder, such assets referred to in this clause (B) also secure debt
securities distributed to the Priority Secured Creditor in respect of its Lien
on such Collateral that is its Priority Collateral, and such Lien of the Junior
Secured Creditor referred to in this clause (B) is junior in priority to
the Lien of the Priority Secured Creditor in such assets to the same extent as
the Lien on its Non-Priority Collateral is junior to the Lien thereon of the
Priority Secured Creditor as provided herein, and in such case the provisions
of the next sentence shall govern.  If,
in an Insolvency Proceeding, debt securities of the reorganized debtor secured
by Liens upon any property of the reorganized debtor are distributed pursuant
to a plan of reorganization or similar dispositive restructuring plan, both on
account of the Priority Secured Creditors’ Liens in their Priority Collateral
and on account of Junior Secured Creditors’ Liens in such Collateral, then, to
the extent the debt 


 


48

















 


securities
distributed on account of the Priority Secured Creditors’ Liens in their
Priority Collateral and on account of the Junior Secured Creditors’ Liens in
such Collateral are secured by Liens upon the same property, the provisions of
this Agreement will survive the distribution of such debt securities pursuant
to such plan and will apply with like effect to the Liens securing such debt
securities.  Notwithstanding the
foregoing, if any Existing Notes Creditor shall receive in respect of their
Lien on any Collateral any debt or equity securities that are issued by a
reorganized debtor pursuant to a plan of reorganization or similar dispositive
restructuring plan in connection with an Insolvency Proceeding, then unless
such distribution is made under a plan that is consented to by the affirmative
vote of all classes composed of the secured claims of Priority Secured
Creditors, all such debt or equity securities so received shall be paid or
delivered directly to Priority Secured Creditors (to be held and/or applied by
the Priority Secured Creditors in accordance with the terms of Section 3.8
hereof)


 


In the
event of any Insolvency Proceeding, except as otherwise provided above, all Proceeds
of Priority Collateral (including, without limitation, any Distribution which
would otherwise, but for the terms hereof, be payable or deliverable in respect
of the Junior Obligations as to such Priority Collateral) shall be paid or
delivered directly to Priority Secured Creditor (to be held and/or applied by
the Priority Secured Creditor in accordance with the terms of the applicable
Obligation Documents) until all Priority Obligations are Paid In Full before
any of the same shall be made to one or more of the Junior Secured Creditors on
account of any Junior Obligations, and each Junior Secured Creditor irrevocably
authorizes, empowers and directs any debtor, debtor in possession, receiver,
trustee, liquidator, custodian, conservator or other Person having authority,
to pay or otherwise deliver all such Distributions in respect of its Junior
Obligations to the Priority Secured Creditor. 
Each Junior Secured Creditor also irrevocably authorizes and empowers
the Priority Secured Creditors, in the name of each Junior Secured Creditor, to
demand, sue for, collect and receive any and all such Distributions in respect
of any Junior Obligations to which the Priority Secured Creditors are entitled
hereunder.


 


6.6                                 Separate Grants of Security and Separate Classification.  Each Secured
Creditor acknowledges and agrees that (a) the grants of Liens pursuant to
the Term Loan Credit Documents and the Revolving Credit Documents and the
Existing Notes Documents constitute three separate and distinct grants of Liens
and (b) because of their differing rights in the Collateral, the Revolving
Credit Secured Claims, the Term Loan Secured Claims and the Existing Notes
Secured Claims are fundamentally different and must be separately classified in
any plan of reorganization proposed or adopted in an Insolvency
Proceeding.  No Term Loan Creditor shall
seek in any Insolvency Proceeding to be treated as part of the same class of
creditors as the Revolving Creditors or the Existing Notes Creditors or shall
oppose any pleading or motion for the Revolving Creditors, the Existing Notes
Creditors and the Term Loan Creditors to be treated as separate classes of
creditors.  No Revolving Creditor shall
seek in any Insolvency Proceeding to be treated as part of the same class of
creditors as the Term Loan Creditors or the Existing Notes Creditors or shall
oppose any pleading or motion for the Revolving Creditors, the Existing Notes
Creditors and the Term Loan Creditors to be treated as separate classes of
creditors.  No Existing Notes Creditor
shall seek in any Insolvency Proceeding to be treated as part of the same class
of creditors as the Revolving Creditors or the Term Loan Creditors or shall
oppose any pleading or motion for the Revolving Creditors, the Existing Notes
Creditors and the Term Loan Creditors to be treated as separate classes of
creditors.  Notwithstanding the
foregoing, if it is held that the Revolving Credit Secured Claims and/or the
Existing Notes 


 


49

















 


Secured
Claims and/or the Term Loan Secured Claims in respect of the Collateral
constitute only one secured claim (rather than separate classes of secured
claims), then the Secured Creditors hereby acknowledge and agree that all
distributions shall be made as if there were separate classes of secured claims
against the Company and the other Obligors in respect of the Collateral, with
the effect being that, to the extent that the aggregate value of the Priority
Collateral exceeds the amount of the Priority Obligations, the Priority Secured
Creditors as to such Priority Collateral shall be entitled to receive to the
extent of such excess, in addition to amounts distributed to them in respect of
principal, pre-petition interest and other claims, all amounts owing in respect
of post-petition interest, and fees, costs and charges incurred subsequent to
the commencement of the applicable Insolvency Proceeding to the extent
constituting Revolving Credit Obligations or Term Loan Obligations, as
applicable, in accordance with the other provisions hereof before any
distribution from such Priority Collateral is made in respect of any of the
claims held by the Junior Secured Creditors as to such Collateral.


 


6.7                                 Rights as Unsecured Lenders; Release of Lien in Non-Priority
Collateral.  In any Insolvency Proceeding, to the extent
not prohibited by this Agreement, each Secured Creditor may take any action,
file any pleading, appear in any proceeding and exercise rights and remedies
that could be taken by any unsecured creditor, in its capacity as such.


 


6.8                                 Relief From the Automatic Stay.  Until the Priority Obligations have been Paid
in Full, the Junior Secured Creditor agrees that it shall not, without the
prior written consent of the Priority Secured Creditor, seek or request relief
from or modification of the automatic stay or any other stay in any Insolvency
Proceeding in respect of any part of the Priority Collateral or any Proceeds
thereof; provided, that, in the event the Priority Secured Creditor
seeks or requests relief from or modification of the automatic stay or any
other stay in any Insolvency Proceeding in respect of its Priority Collateral,
the Priority Secured Creditor agrees that the Junior Secured Creditor may seek
or request similar relief to that sought by the Priority Secured Creditor, so
that the Junior Secured Creditor may seek to exercise its rights and remedies
under the Junior Documents and against such Collateral and Proceeds thereof
subject to the provisions of this Agreement.


 


6.9                                 Effect of Agreement in Bankruptcy.  This Agreement shall
be applicable both before and after the filing of any petition by or against
any Obligor under the Bankruptcy Code or any other Insolvency Proceeding and
all converted or succeeding cases in respect thereof, and all references herein
to any Obligor shall be deemed to apply to any trustee for such Obligor and
such Obligor as a debtor-in-possession. 
The relative rights of the Term Loan Creditors and the Revolving
Creditors and the Existing Notes Creditors in respect of any Collateral or Proceeds
thereof shall continue after the filing of such petition on the same basis as
prior to the date of such filing.  This
Agreement shall constitute a “subordination agreement” for the purposes of Section 510(a) of
the Bankruptcy Code and shall be enforceable in any Insolvency Proceeding in
accordance with its terms.


 


Section 7.                                            Representations
and Warranties.


 


The
Revolving Agent and the Term Loan Agent and the Existing Notes Agent each
represent and warrant to the other parties hereto that it is authorized under
the Revolving 


 


50

















 


Credit Agreement and the Term Loan Credit Agreement and the
Existing Notes Indenture, as the case may be, to enter into this Agreement.


 


Section 8.                                            Miscellaneous.


 


8.1                                 Termination.  Subject to Section 6.4 and
subject to Section 3.8, (i) this Agreement shall terminate as
to the Revolving Creditors (except for their obligations and agreements under Section 2,
Section 3.5, Section 3.8, and Section 8,
which shall continue in full force and effect) and be of no further force and
effect with respect to or for the benefit of the Revolving Creditors (except as
aforesaid) upon Payment in Full of the Revolving Credit Obligations, and (ii) this
Agreement shall terminate as to the Term Loan Creditors (except for their
obligations and agreements under Section 2,  Section 3.5,
Section 3.8, Section 8, which shall continue in full
force and effect) and be of no further force and effect with respect to or for
the benefit of the Term Loan Creditors (except as aforesaid) upon Payment in
Full of the Term Loan Obligations.


 


8.2                                 Successors and Assigns; No Third Party Beneficiaries.


 


(a)                                  This Agreement shall be binding upon each Secured Creditor
and its respective successors and assigns and shall inure to the benefit of
each Secured Creditor and its respective successors, participants and
assigns.  Except solely to the extent of
the Obligors’ rights to consent pursuant to and subject to the conditions in Section 8.7(b),
no other Person shall have or be entitled to assert rights or benefits
hereunder.


 


(b)                                 Each Secured Creditor reserves the right to grant
participations in, or otherwise sell, assign, transfer or negotiate all or any
part of, or any interest in, their respective Obligations; provided that
no Secured Creditor shall be obligated to give any notices to or otherwise in
any manner deal directly with any participant in the Obligations and no
participant shall be entitled to any rights or benefits under this Agreement,
except through the Secured Creditor with which it is a participant.


 


(c)                                  In connection with any participation or other transfer or
assignment, a Secured Creditor (i) may, subject to its respective
Obligation Documents, disclose to such assignee, participant or other
transferee or assignee all documents and information which such Secured
Creditor now or hereafter may have relating to any Obligor or the Collateral
and (ii) shall disclose to such participant or other transferee or
assignee the existence and terms and conditions of this Agreement.


 


8.3                                 Notices.  All notices and other communications provided
for hereunder shall be in writing and shall be sent by registered mail, return
receipt requested, sent by overnight courier, telecopied or sent by PDF or
other readable electronic means, delivered, as follows:


 


51

















 


(a)                                  if to the Term Loan Agent, to it at the following address:


 




Attention:  





Re:  FiberTower

Fax:  (     ) 

Email: 


 


with a copy to:


 


Gibson, Dunn &
Crutcher LLP

200 Park Avenue, 48th Floor

New York, New York 10066-0193

Attn: Robert L. Cunningham

Re:  FiberTower

Fax: (212) 351-25208

Email: Rcunningham@GibsonDunn.com


 


(b)                                 if to the Revolving Agent, to it at the following address:


 


                                             ,



                                             


RE: FiberTower

Attention:  

Fax:  (     ) 

Email: 


 


With a copy to:


 








RE: FiberTower

Attention:  

Fax:  (     )

Email: 


 


52

















 


(c)                                  if to the Existing Notes Agent, to it at the following
address:


 


                                             ,


  

RE: FiberTower

Attention:  

Fax:  (     ) 

Email: 


 


With a copy to:


 








RE: FiberTower

Attention:  

Fax:  (     ) 

Email: 


 


(d)                                 If to any Obligor, to it at the following address:


 


c/o FiberTower Corporation







Attention: 

Fax: 


 


with a copy to:


 








RE: 

Attention:  

Fax:  (     )

Email: 


 


or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties complying as to delivery with the terms of
this Section 8.3.  All such
notices and other communications shall be effective (i) if sent by
registered mail, return receipt requested, when received or 3 Business Days
after mailing, whichever first occurs, (ii) if telecopied or sent by other
electronic means, when transmitted and a confirmation is received, provided
the same is on a Business Day and, if not, on the next Business Day or (iii) if
delivered by messenger or overnight courier, upon delivery, provided the same is on a Business Day and, if
not, on the next Business Day.


 


53
















 


8.4                                 Counterparts.  This Agreement may be executed by the parties
hereto in several counterparts, and each such counterpart shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.  A signed counterpart (or
signature page) of this Agreement delivered by facsimile, PDF or other
electronic means shall be effective for all purposes as a manually signed
original thereof whether or not an original executed counterpart thereof is
delivered, and each party hereto shall promptly on request by any other party
hereto deliver a manually signed original executed counterpart to each such
requesting party.


 


8.5                                 GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.  THIS AGREEMENT AND
THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.  EACH OF THE
PARTIES HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS
LOCATED IN NEW YORK, NEW YORK SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES AMONG THE PARTIES HERETO PERTAINING TO THIS AGREEMENT OR TO
ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED THAT
THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK.  EACH OF THE PARTIES HERETO EXPRESSLY SUBMITS
AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN
ANY SUCH COURT, AND EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION
WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE
OR FORUM NON CONVENIENS.


 


8.6                                 MUTUAL WAIVER OF JURY TRIAL.  THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE PARTIES ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS
RELATED THERETO.


 


8.7                                 Amendments.


 


(a)                                  No amendment or waiver of any provision of this Agreement,
and no consent to any departure by any Person from the terms hereof, shall in
any event be effective unless it is in writing and (i) insofar as it
relates to any rights or obligations of the Term Loan Agent and Revolving Agent
as between themselves, signed by the Term Loan Agent and the Revolving Agent,
and (ii) insofar as it relates to any rights or obligations of the
Existing Notes Creditors, signed by the Existing Notes Agent, the Term Loan
Agent and the Revolving Agent.


 


(b)                                 No Obligor shall have any right to consent to or approve any
amendment, modification or waiver of any provision of this Agreement.


 


54

















 


8.8                                 No Waiver.  No failure or delay on the part of any
Secured Creditor in exercising any power or right under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right.


 


8.9                                 Severability.  Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provisions in any other jurisdiction.


 


8.10                           Further Assurances.  Each party hereto agrees to cooperate fully
with each other party hereto to effectuate the intent and provisions of this
Agreement and, from time to time, to execute and deliver any and all other
agreements, documents or instruments, and to take such other actions, as may be
reasonably necessary or desirable to effectuate the intent and provisions of
this Agreement.


 


8.11                           Headings.  The section headings contained in this
Agreement are and shall be without meaning or content whatsoever and are not
part of this Agreement.


 


8.12                           Credit Analysis.  The Secured Creditors (other than any Person
acting as a trustee or collateral agent) shall each be responsible for keeping
themselves informed of (a) the financial condition of the Obligors and all
other all endorsers, obligors and/or guarantors of the Obligations and (b) all
other circumstances bearing upon the risk of nonpayment of the
Obligations.  No Secured Creditor shall
have any duty to advise any other Secured Creditor of information known to it
regarding such condition or any such other circumstances.  No Secured Creditor assumes any liability to
any other Secured Creditor or to any other Person with respect to:  (i) the financial or other condition of
Obligors under any instruments of guarantee with respect to the Obligations, (ii) the
enforceability, validity, value or collectibility of the Obligations, any
Collateral therefor or any guarantee or security which may have been granted in
connection with any of the Obligations or (iii) any Obligor’s title or
right to transfer any Collateral or security.


 


8.13                           Waiver of Claims.  To the maximum extent permitted by law, each
party hereto waives any claim it might have against any Secured Creditor with
respect to, or arising out of, any action or failure to act or any error of
judgment or negligence, mistake or oversight whatsoever on the part of any
other party hereto or their respective directors, officers, employees or agents
with respect to any exercise of rights or remedies under the Obligation Documents
or any transaction relating to the Collateral in accordance with this
Agreement.  None of the Secured
Creditors, nor any of their respective directors, officers, employees or agents
shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or, except as specifically provided
herein, shall be under any obligation to Dispose of any Collateral upon the
request of any Obligor or any Secured Creditor or any other Person or to take
any other action whatsoever with regard to any Collateral or any part thereof.


 


8.14                           Conflicts.  In the event of any conflict between the
provisions of this Agreement and the provisions of the Obligation Documents,
the provisions of this Agreement shall govern.


 


55

















 


8.15                           Specific Performance.  Each of the Term Loan Agent and the Revolving
Agent and the Existing Notes Agent may demand specific performance of this
Agreement and, on behalf of itself and the respective other Secured Creditors,
hereby irrevocably waives any defense based on the adequacy of a remedy at law
and any other defense that might be asserted to bar the remedy of specific
performance in any action which may be brought by the respective Secured
Creditors.


 


8.16                           Provisions Solely to Define Relative Rights.  The provisions of
this Agreement are and are intended solely for the purpose of defining the
relative rights of the Secured Creditors. 
None of the Obligors or any other creditor thereof shall have any rights
hereunder, and none of the Obligors may rely on the terms hereof.  Nothing in this Agreement is intended to or
shall impair the obligations of Obligors under the Obligations Documents.


 


8.17                           Lien Priority Provisions; Subrogation.  This Agreement and
the rights and benefits hereunder shall inure solely to the benefit of the Term
Loan Agent, the Term Loan Creditors and the Revolving Agent and the Revolving
Creditors and the Existing Notes Agent and the Existing Notes Creditors and
their respective successors and permitted assigns and no other Person
(including the Obligors or any trustee, receiver, debtor in possession or
bankruptcy estate in a bankruptcy or like proceeding) shall have or be entitled
to assert rights or benefits hereunder. 
Each Junior Secured Creditor hereby agrees that until the Term Loan
Termination Date, if the Junior Secured Creditor is the Revolving Agent, or the
Revolving Credit Termination Date, if the Junior Secured Creditor is the Term
Loan Agent, it will not assert any rights of subrogation it or they may acquire
as a result of any payment hereunder. 
Each Existing Notes Creditor hereby agrees that until the later of the
Term Loan Termination Date and Revolving Credit Termination Date, it will not
assert any rights of subrogation it or they may acquire as a result of any
payment hereunder.  Nothing contained in
this Agreement is intended to or shall impair the obligation of any Obligor to
pay the Obligations as and when the same shall become due and payable in
accordance with their respective terms.


 


8.18                           Entire Agreement.  This Agreement and the Obligation Documents
embody the entire agreement of the Obligors, the Term Loan Agent, the Term Loan
Creditors, the Revolving Agent, the Revolving Creditors and the Existing Notes
Agent and the Existing Notes Creditors with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings
relating to the subject matter hereof and thereof and any draft agreements,
negotiations and/or discussions involving any Obligor and any of the Term Loan
Agent, the Term Loan Creditors, the Revolving Agent, the Revolving Creditors
and the Existing Notes Agent and the Existing Notes Creditors relating to the
subject matter hereof.


 


8.19                           Indemnification.  The Existing Notes Agent, the New Notes
Agent, the Term Loan Agent and each other Secured Creditor shall be entitled to
reimbursement of their respective expenses incurred hereunder and indemnity in
connection with the actions taken by any of them hereunder.  The Obligors, jointly and severally, hereby
agree to indemnify and hold harmless the Existing Notes Agent, the New Notes
Agent, the Term Loan Agent, and each other Secured Creditor and their
respective directors, officers, employees, agents, successors and assigns,
against and from any and all claims, actions, liabilities, costs and expenses
of any kind or nature whatsoever (including reasonable fees and disbursements
of counsel) that may be imposed on, incurred by, or asserted against any of
them, in any way relating to or arising out of 


 


56

















 


this
Agreement, any exercise of remedies hereunder or any other action taken or
omitted by them hereunder, except to the extent a court holds in a final and
nonappealable judgment that such claims, actions, liabilities, costs, and
expenses directly resulted from the gross negligence or willful misconduct of
such indemnified Person.  The provisions
of this Section shall survive Payment in Full of the Existing Notes
Obligations, the New Notes Obligations, and the Term Loan Obligations, the
discharge or satisfaction of the Existing Notes Indenture and the New Notes
Indenture, and the termination of this Agreement.


 


8.20                           Obligations Unconditional.  All rights, interests, agreements and
obligations hereunder of the Priority Secured Creditors in respect of any
Collateral and the Junior Secured Creditors in respect of such Collateral shall
remain in full force and effect regardless of:


 


(a)                                  any lack of validity or enforceability of any Priority
Document or any Junior Document and regardless of whether the Liens of the
Priority Secured Creditor are not perfected or are voidable for any reason;


 


(b)                                 any change in the time, manner or place of payment of, or in
any other terms of, all or any of the Senior Obligations or Junior Obligations,
or any amendment or waiver or other modification (including any increase in the
amount thereof), whether by course or conduct or otherwise, of the terms of any
Priority Document or any Junior Document to the extent not inconsistent with
the provisions hereof;


 


(c)                                  any lack of perfection of any Lien on any Collateral or
except as expressly provided herein, any exchange or release of Collateral, or
any amendment, waiver or other modification, whether in writing or by course of
conduct or otherwise, of all or any of the Senor Obligations or Junior
Obligations or any guarantee thereof; or


 


(d)                                 the commencement of any Insolvency Proceeding in respect of
any Obligor.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]


 


57

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first
above written.


 


	
   

  	
   

  	
  ,

  
	
   

  	
  as
  Term Loan Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  .,

  
	
   

  	
  as
  Revolving Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  .,

  
	
   

  	
  as
  Existing Notes Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


Signature
Page to Amended and Restated Intercreditor Agreement


 

















 


Each of the
undersigned hereby acknowledges and agrees to the foregoing terms and
provisions.


 


	
   

  	
  COMPANY
  AND OTHER OBLIGORS:

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER
  NETWORK SERVICES CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ART
  LEASING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TELIGENT
  SERVICES ACQUISITION, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ART
  LICENSING CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Signature
Page to Amended and Restated Intercreditor Agreement


 

















 


	
   

  	
  FIBERTOWER
  SOLUTIONS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Signature
Page to Amended and Restated Intercreditor Agreement


 
















 


Exhibit H


 


FORM OF INDENTURE GOVERNING NEW NOTES


 

















 


THIS INDENTURE, AND THE RIGHTS OF THE PARTIES HEREUNDER, ARE SUBJECT TO
THE  PROVISIONS OF THE OMNIBUS
INTERCREDITOR AGREEMENT, DATED AS OF
                                    ,
20    , BETWEEN THE TRUSTEE AND THE OTHER CREDITORS PARTY
THERETO FROM TIME TO TIME, AND THE COMPANY AND THE GUARANTORS, AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.




 





 


FIBERTOWER CORPORATION


 


9.00% SENIOR SECURED NOTES DUE
20[    ]


 






 


INDENTURE


 


Dated as of
[                ]
[    ], 20[    ]


 






 






 


Well Fargo Bank, National Association, 


 


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)

  	
   

  	
  11.04

  
	
  (b)(2)

  	
   

  	
  8.07;11.04

  
	
  (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)

  	
   

  	
  11.04;11.05;11.06

  
	
  (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

  	
  28

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  28

  
	
  Section 1.04.

  	
  Rules of Construction

  	
  29

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 2.

  	
   

  
	
   

  	
  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and Dating

  	
  29

  
	
  Section 2.02.

  	
  Execution and Authentication

  	
  30

  
	
  Section 2.03.

  	
  Registrar, Paying Agent and Depositary

  	
  30

  
	
  Section 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
  31

  
	
  Section 2.05.

  	
  Holder Lists

  	
  31

  
	
  Section 2.06.

  	
  Transfer and Exchange

  	
  31

  
	
  Section 2.07.

  	
  Replacement Notes

  	
  44

  
	
  Section 2.08.

  	
  Outstanding Notes

  	
  44

  
	
  Section 2.09.

  	
  Treasury Notes

  	
  45

  
	
  Section 2.10.

  	
  Temporary Notes

  	
  45

  
	
  Section 2.11.

  	
  Cancellation

  	
  45

  
	
  Section 2.12.

  	
  Defaulted Interest

  	
  45

  
	
  Section 2.13.

  	
  CUSIP Numbers

  	
  46

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 3.

  	
   

  
	
   

  	
  REDEMPTION AND PREPAYMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Notices to Trustee

  	
  46

  
	
  Section 3.02.

  	
  Selection of Notes to Be Redeemed or Purchased

  	
  46

  
	
  Section 3.03.

  	
  Notice of Redemption

  	
  47

  
	
  Section 3.04.

  	
  Effect of Notice of Redemption

  	
  48

  
	
  Section 3.05.

  	
  Deposit of Redemption or Purchase Price

  	
  48

  
	
  Section 3.06.

  	
  Notes Redeemed or Purchased in Part

  	
  48

  
	
  Section 3.07.

  	
  Optional Redemption

  	
  48

  
	
  Section 3.08.

  	
  Repurchase at Option of Holder Upon a Fundamental Change

  	
  49

  
	
  Section 3.09.

  	
  Offer to Purchase by Application of Excess Proceeds

  	
  53

  



 


i

















 


	
   

  	
  ARTICLE 4.

  	
   

  
	
   

  	
  [RESERVED]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 5.

  	
   

  
	
   

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Payment of Notes

  	
  55

  
	
  Section 5.02.

  	
  Maintenance of Office or Agency

  	
  55

  
	
  Section 5.03.

  	
  Reports

  	
  56

  
	
  Section 5.04.

  	
  Compliance Certificate

  	
  56

  
	
  Section 5.05.

  	
  Taxes

  	
  57

  
	
  Section 5.06.

  	
  Stay, Extension and Usury Laws

  	
  57

  
	
  Section 5.07.

  	
  Limitation on Restricted Payments

  	
  57

  
	
  Section 5.08.

  	
  Limitation on Dividend and Other Payment Restrictions
  Affecting Subsidiaries

  	
  60

  
	
  Section 5.09.

  	
  Limitation on Incurrence of Additional Indebtedness and Issuance
  of Preferred Stock

  	
  61

  
	
  Section 5.10.

  	
  Limitation on Asset Sales

  	
  64

  
	
  Section 5.11.

  	
  Limitation on Transactions with Affiliates

  	
  65

  
	
  Section 5.12.

  	
  Limitation on Liens

  	
  67

  
	
  Section 5.13.

  	
  Conduct of Business

  	
  67

  
	
  Section 5.14.

  	
  Designation of Restricted and Unrestricted Subsidiaries

  	
  67

  
	
  Section 5.15.

  	
  Issuance and Sale of Capital Stock of Restricted
  Subsidiaries

  	
  68

  
	
  Section 5.16.

  	
  Maintenance of Insurance

  	
  68

  
	
  Section 5.17.

  	
  Payments for Consent

  	
  69

  
	
  Section 5.18.

  	
  Additional Guarantees

  	
  69

  
	
  Section 5.19.

  	
  Anti-Layering

  	
  70

  
	
  Section 5.20.

  	
  Further Assurances Relating to Collateral

  	
  70

  
	
  Section 5.21.

  	
  Real Estate Mortgages and Filings

  	
  70

  
	
  Section 5.22.

  	
  Corporate Existence

  	
  71

  
	
  Section 5.23.

  	
  Formation of New License Subsidiary; Transfer of FCC
  Licenses

  	
  72

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 6.

  	
   

  
	
   

  	
  SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Merger, Consolidation, or Sale of Assets

  	
  72

  
	
  Section 6.02.

  	
  Successor Corporation Substituted

  	
  73

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 7.

  	
   

  
	
   

  	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Events of Defaul

  	
  74

  
	
  Section 7.02.

  	
  Acceleration

  	
  76

  
	
  Section 7.03.

  	
  Other Remedies

  	
  77

  
	
  Section 7.04.

  	
  Waiver of Past Defaults

  	
  77

  
	
  Section 7.05.

  	
  Control by Majority

  	
  77

  
	
  Section 7.06.

  	
  Limitation on Suits

  	
  77

  



 


ii

















 


	
  Section 7.07.

  	
  Rights of Holders of Notes to Receive Payment

  	
  78

  
	
  Section 7.08.

  	
  Collection Suit by Trustee

  	
  78

  
	
  Section 7.09.

  	
  Trustee May File Proofs of Claim

  	
  78

  
	
  Section 7.10.

  	
  Priorities

  	
  79

  
	
  Section 7.11.

  	
  Undertaking for Costs

  	
  79

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 8.

  	
   

  
	
   

  	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Duties of Trustee

  	
  80

  
	
  Section 8.02.

  	
  Rights of Trustee

  	
  81

  
	
  Section 8.03.

  	
  Individual Rights of Trustee

  	
  82

  
	
  Section 8.04.

  	
  Trustee’s Disclaimer

  	
  82

  
	
  Section 8.05.

  	
  Notice of Defaults

  	
  82

  
	
  Section 8.06.

  	
  Reports by Trustee to Holders of the Notes

  	
  82

  
	
  Section 8.07.

  	
  Compensation and Indemnity

  	
  83

  
	
  Section 8.08.

  	
  Replacement of Trustee

  	
  84

  
	
  Section 8.09.

  	
  Successor Trustee by Merger, etc.

  	
  85

  
	
  Section 8.10.

  	
  Eligibility; Disqualification

  	
  85

  
	
  Section 8.11.

  	
  Preferential Collection of Claims Against Company

  	
  85

  
	
  Section 8.12.

  	
  Powers of Trustee Subject to Communications Act

  	
  85

  
	
  Section 8.13.

  	
  Trustee as Paying Agent, Registrar and Collateral Agent

  	
  85

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 9.

  	
   

  
	
   

  	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
  85

  
	
  Section 9.02.

  	
  Legal Defeasance and Discharge

  	
  86

  
	
  Section 9.03.

  	
  Covenant Defeasance

  	
  86

  
	
  Section 9.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
  87

  
	
  Section 9.05.

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

  	
  88

  
	
  Section 9.06.

  	
  Repayment to Company

  	
  88

  
	
  Section 9.07.

  	
  Reinstatement

  	
  89

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 10.

  	
   

  
	
   

  	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Without Consent of Holders of Notes

  	
  89

  
	
  Section 10.02.

  	
  With Consent of Holders of Notes

  	
  90

  
	
  Section 10.03.

  	
  Compliance with Trust Indenture Act

  	
  92

  
	
  Section 10.04.

  	
  Revocation and Effect of Consents

  	
  92

  
	
  Section 10.05.

  	
  Notation on or Exchange of Notes

  	
  92

  
	
  Section 10.06.

  	
  Trustee to Sign Amendments, etc.

  	
  92

  



 


iii

















 


	
   

  	
  ARTICLE 11.

  	
   

  
	
   

  	
  COLLATERAL AND SECURITY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Collateral Agreements

  	
  93

  
	
  Section 11.02.

  	
  Recording and Opinions

  	
  94

  
	
  Section 11.03.

  	
  Agreements Requiring Application of Proceeds of Collateral

  	
  94

  
	
  Section 11.04.

  	
  Release of Collateral

  	
  95

  
	
  Section 11.05.

  	
  Certificates of the Company

  	
  96

  
	
  Section 11.06.

  	
  Certificates of the Trustee

  	
  96

  
	
  Section 11.07.

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

  	
  96

  
	
  Section 11.08.

  	
  Authorization of Receipt of Funds by the Trustee Under the
  Collateral Agreements

  	
  97

  
	
  Section 11.09.

  	
  Relative Rights

  	
  97

  
	
  Section 11.10.

  	
  Limitation on Duty of Trustee and Collateral Agent as to
  Collateral; Indemnification

  	
  98

  
	
  Section 11.11.

  	
  Authorization of Intercreditor Agreement

  	
  98

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 12.

  	
   

  
	
   

  	
  NOTE GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Guarantee

  	
  99

  
	
  Section 12.02.

  	
  Limitation on Guarantor Liability

  	
  100

  
	
  Section 12.03.

  	
  Execution and Delivery of Note Guarantee

  	
  100

  
	
  Section 12.04.

  	
  Releases Following Sale of Assets

  	
  101

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 13.

  	
   

  
	
   

  	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Satisfaction and Discharge

  	
  101

  
	
  Section 13.02.

  	
  Application of Trust Money

  	
  102

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 14.

  	
   

  
	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
  Trust Indenture Act Controls

  	
  103

  
	
  Section 14.02.

  	
  Notices

  	
  103

  
	
  Section 14.03.

  	
  Communication by Holders of Notes with Other Holders of
  Notes

  	
  104

  
	
  Section 14.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  104

  
	
  Section 14.05.

  	
  Statements Required in Certificate or Opinion

  	
  105

  
	
  Section 14.06.

  	
  Rules by Trustee and Agents

  	
  105

  
	
  Section 14.07.

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
  105

  
	
  Section 14.08.

  	
  Governing Law

  	
  105

  
	
  Section 14.09.

  	
  No Adverse Interpretation of Other Agreements

  	
  106

  
	
  Section 14.10.

  	
  Successors

  	
  106

  
	
  Section 14.11.

  	
  Severability

  	
  106

  



 


iv

















 


	
  Section 14.12.

  	
  Counterpart Originals

  	
  106

  
	
  Section 14.13.

  	
  Benefit of Indenture

  	
  106

  
	
  Section 14.14.

  	
  Table of Contents, Headings, etc.

  	
  106

  
	
   

  	
   

  	
   

  
	
   

  	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  FORM OF
  NOTE

  	
   

  
	
  Exhibit B

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  	
   

  
	
  Exhibit C

  	
  FORM OF
  CERTIFICATE OF EXCHANGE

  	
   

  
	
  Exhibit D

  	
  FORM OF
  NOTATION OF GUARANTEE

  	
   

  
	
  Exhibit E

  	
  FORM OF
  CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  	
   

  
	
  Exhibit F

  	
  FORM OF
  INTERCREDITOR AGREEMENT

  	
   

  
	
  Exhibit G

  	
  FORM OF
  SUBORDINATION PROVISIONS

  	
   

  
	
  Exhibit H

  	
  FORM OF
  COLLATERAL AGREEMENT

  	
   

  
	
  Exhibit I

  	
  FORM OF
  COLLATERAL ASSIGNMENT (COPYRIGHTS)

  	
   

  
	
  Exhibit J

  	
  FORM OF
  COLLATERAL ASSIGNMENT (PATENTS)

  	
   

  
	
  Exhibit K

  	
  FORM OF COLLATERAL
  ASSIGNMENT (TRADEMARKS)

  	
   

  
				



 


v

















 


INDENTURE, dated as of
[                ]
[    ], 20[    ], among FiberTower
Corporation, a Delaware corporation (the “Company”), the
Guarantors (as defined below) and Wells Fargo Bank, National Association, 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 (as defined below) of the 9.00% Senior
Secured Notes due 20[    ]
(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.


 


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


 


“Acquired
Indebtedness” means, with respect to any specified Person:


 


(1)                                 Indebtedness of
any other Person existing at the time such other Person is merged with or into
or became a Restricted Subsidiary of such specified Person, or Indebtedness
incurred by such specified Person in connection with the acquisition of assets,
including Indebtedness incurred in connection with, or in contemplation of,
such other Person merging with or into, or becoming a Restricted Subsidiary of,
such specified Person or the acquisition of such assets, as the case may be;
and


 


(2)                                 Indebtedness secured
by a Lien encumbering any asset acquired by such specified Person.


 


“Additional
Notes” means the aggregate principal amount of Notes (other than the
Initial Notes) issued under this Indenture (i) 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 attached as Exhibit A hereto or (ii) subject
to the satisfaction of all of the covenants in this Indenture, including,
without limitation, Sections 5.09 and 5.12 of this Indenture, in each case in
the form of Exhibit A hereto, 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 definition, “control,” 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 beneficial ownership of
10% or more of the Voting Stock of a Person will be deemed to be control.  For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.


 

















 


“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 or co-registrar.


 


“Applicable
Procedures” means, with respect to any transfer or exchange of or
for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.


 


“Asset
Acquisition” means (1) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person will
become a Restricted Subsidiary of the Company or will be merged or consolidated
with or into the Company or any of its Restricted Subsidiaries or (2) the
acquisition by the Company or any Restricted Subsidiary of the assets of any
Person which constitute substantially all of the assets of such Person or any
division or line of business of such Person.


 


“Asset Sale”
means in a single transaction or a series of related transactions:


 


(1)                                 the sale,
lease, conveyance or other disposition of any assets or rights (including by
way of a sale and leaseback transaction), other than the sale, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company and its Restricted Subsidiaries taken as a whole; and


 


(2)                                 the issuance or
sale of Equity Interests of any of the Company’s Restricted Subsidiaries or the
sale of Equity Interests in any of the Company’s Subsidiaries.


 


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


 


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


 


(2)                                 a transfer of
assets between or among the Company and the Guarantors;


 


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


 


(4)                                 the sale or
lease of products, services or accounts receivable in the ordinary course of
business or equipment or other assets pursuant to a program for the maintenance
or upgrading of such equipment or assets including, without limitation, the
disposition of equipment that is worn out or obsolete; or


 


(5)                                 the sale or
other disposition of cash or Cash Equivalents.


 


Notwithstanding anything to
the contrary contained above, a Restricted Payment (other than a Restricted
Investment in the form of Indebtedness) that does not violate the covenant


 


2
















 


described
under Section 5.07 hereof shall not constitute an Asset Sale, except for
purposes of determination of the Consolidated Coverage Ratio.


 


“Average Life”
means, as of the date of determination, with respect to any Indebtedness, the
quotient obtained by dividing:


 


(1)                                 the sum of the
products of the number of years from the date of determination to the dates of
each successive scheduled principal payment of or redemption or similar payment
with respect to such Indebtedness multiplied by the amount of such payment by


 


(2)                                 the sum of all
such payments.


 


“Bankruptcy
Code” means Title 11 of the United States Code (11 U.S.C. 101 et
seq.), as amended from time to time, and any successor statute, or if the
context so requires, any similar federal or state law.


 


“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. 
The terms “beneficially owns” and “beneficially owned” have a
corresponding meaning.


 


“Board of
Directors” means:


 


(1)                                 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;


 


(2)                                 with respect to
a partnership, the board of directors of the general partner of the
partnership;


 


(3)                                 with respect to
a limited liability company, the managing member or members or any controlling
committee of managing members thereof; and


 


(4)                                 with respect to
any other Person, the board or committee of such Person serving a similar
function.


 


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


 


“Business Day”
means any day other than a Saturday, a Sunday or a day on which banking
institutions in The City of New York, New York or San Francisco, California or
at a place of payment are authorized or required by law, regulation or
executive order to remain closed.


 


3

















 


“Capital
Lease Obligation” means, at the time any determination is to be made,
the amount of the liability in respect of a capital lease that would at that
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, excluding any liability in respect of any lease for antenna placements
or fiber optic services including, but not limited to, lit services, dark
fiber, rights of way that would be considered capital leases under GAAP.


 


“Capital
Stock” means:


 


(1)                                 in the case of
a corporation, corporate stock;


 


(2)                                 in the case of
an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;


 


(3)                                 in the case of
a partnership or limited liability company, partnership interests (whether
general or limited) or membership interests, respectively; and


 


(4)                                 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 in profits, losses or distribution of assets with Capital Stock.


 


“Cash
Equivalents” means:


 


(1)                                 U.S. dollars;


 


(2)                                 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 pledged in
support of those securities) having maturities of not more than twelve months
from the date of acquisition;


 


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


 


(4)                                 repurchase
obligations with a term of not more than seven (7) days for underlying
securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications
specified in clause (3) above;


 


4

















 


(5)                                 commercial
paper having one of the two highest ratings obtainable from Moody’s or Standard &
Poor’s and, in each case, maturing within twelve months after the date of
acquisition; and


 


(6)                                 money market
funds at least 95% of the assets of which constitute Cash Equivalents of the
kinds described in clauses (1) through (5) of this definition.


 


“Clearstream”
means Clearstream Banking, S.A.


 


“Collateral”
means all collateral of whatsoever nature purported to be subject to the Lien
of the Collateral Agreements.


 


“Collateral
Agent” means Wells Fargo Bank, National Association, in its capacity
as Collateral Agent under the Collateral Agreements, together with its
successors in such capacity.


 


“Collateral
Agreements” means the Intercreditor Agreement, the Security
Agreement, the Collateral Assignment (Copyrights), the Collateral Assignment
(Patents), the Collateral Assignment (Trademarks) and all other security
agreements, pledge agreements, collateral assignments, mortgages, deeds of
trust, collateral agency agreements, control agreements or other grants or
transfers for security executed and delivered by the Company or any Guarantor
creating (or purporting to create) a Note Lien upon Collateral in favor of the
Collateral Agent, in each case, as amended, modified, renewed, restated or
replaced, in whole or in part, from time to time, in accordance with its terms.


 


“Collateral
Assignment (Copyrights)” means the collateral assignment
(copyrights), substantially in the form of Exhibit I hereto, as amended,
modified, superseded, reinstated, succeeded or replaced from time to time in
accordance with its terms and the terms of this Indenture, made and given by
the assignor(s) party thereto to the Collateral Agent.


 


“Collateral
Assignment (Patents)” means the collateral assignment (patents),
substantially in the form of Exhibit J hereto, as amended, modified,
superseded, reinstated, succeeded or replaced from time to time in accordance
with its terms and the terms of this Indenture, made and given by the assignor(s) party
thereto to the Collateral Agent.


 


“Collateral
Assignment (Trademarks)” means the collateral assignment
(trademarks), substantially in the form of Exhibit K hereto, as amended,
modified, superseded, reinstated, succeeded or replaced from time to time in
accordance with its terms and the terms of this Indenture, made and given by
the assignor(s) party thereto to the Collateral Agent.


 


“Common Stock”
means the common stock of the Company, par value $0.001 per share, as it exists
on the date of this Indenture or any other shares of Capital Stock of the
Company into which such common stock shall be reclassified or changed.


 


“Communications
Act” means the Communications Act of 1934, as amended, the rules,
regulations, orders, decisions and written polices of the FCC, and binding
interpretations of U.S. federal courts of any of the foregoing.


 


5

















 


“Consolidated
Coverage Ratio” means with respect to any Person as of any date of
determination, the ratio of (A) the aggregate amount of EBITDA of such
Person and its Restricted Subsidiaries for the period of the most recent four
consecutive fiscal quarters ending prior to the date of such determination and
as to which financial statements are available to (B) Consolidated
Interest Expense of such Person and its Restricted Subsidiaries for such four
fiscal quarters; provided, however,
that:


 


(1)                                 if such Person
or any of its Restricted Subsidiaries has incurred any Indebtedness since the
beginning of such period through the determination date that remains
outstanding or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an incurrence of Indebtedness, or both, EBITDA
and Consolidated Interest Expense for such Person for such period shall be
calculated after giving effect on a pro forma basis
to (A) such Indebtedness as if such Indebtedness had been incurred on the
first day of such period, and (B) the discharge of any other Indebtedness
repaid, repurchased, defeased or otherwise discharged with the proceeds of such
new Indebtedness as if such discharge had occurred on the first day of such
period;


 


(2)                                 if since the
beginning of such period any Indebtedness of such Person or any of its
Restricted Subsidiaries has been repaid, repurchased, defeased or otherwise
discharged (other than Indebtedness under a revolving credit or similar
arrangement unless such revolving credit Indebtedness has been permanently
repaid and has not been replaced), Consolidated Interest Expense for such
Person for such period shall be calculated after giving pro forma
effect thereto as if such Indebtedness had been repaid, repurchased, defeased
or otherwise discharged on the first day of such period;


 


(3)                                 if since the
beginning of such period such Person or any of its Restricted Subsidiaries
shall have made any Asset Sale or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio is an Asset Sale, EBITDA for such
Person for such period shall be reduced by an amount equal to the EBITDA (if
positive) attributable to the assets which are the subject of such Asset Sale
for such period or increased by an amount equal to the EBITDA (if negative)
attributable thereto for such period, and Consolidated Interest Expense for
such Person for such period shall be (A) reduced by an amount equal to the
Consolidated Interest Expense attributable to any Indebtedness of such Person
or any of its Restricted Subsidiaries repaid, repurchased, defeased or
otherwise discharged with respect to such Person and its continuing Restricted
Subsidiaries in connection with such Asset Sale for such period (or, if the
Capital Stock of any Restricted Subsidiary of such Person is sold, transferred
or otherwise disposed of, the Consolidated Interest Expense for such Person for
such period directly attributable to the Indebtedness of such Restricted
Subsidiary to the extent such Person and its continuing Restricted Subsidiaries
are no longer liable for such Indebtedness after such sale, transfer or other
disposition) and (B) increased by interest income attributable to the
assets which are the subject of such Asset Sale for such period;


 


6

















 


(4)                                 if since the
beginning of such period such Person or any of its Restricted Subsidiaries (by
merger or otherwise) shall have made an Asset Acquisition, EBITDA and
Consolidated Interest Expense for such Person for such period shall be
calculated after giving pro forma
effect thereto (including the incurrence of any Indebtedness) as if such Asset
Acquisition occurred on the first day of such period; and


 


(5)                                 if since the
beginning of such period any Person that subsequently became a Restricted
Subsidiary of such Person or was merged with or into such Person or any of its
Restricted Subsidiaries since the beginning of such period shall have made any
Asset Sale or Asset Acquisition that would have required an adjustment pursuant
to clause (3) or (4) above if made by such Person or a Restricted
Subsidiary of such Person during such period, EBITDA and Consolidated Interest
Expense for such period for such Person shall be calculated after giving pro forma effect thereto as if such Asset Sale or Asset
Acquisition occurred on the first day of such period.


 


For purposes of this
definition, whenever pro forma effect
is to be given to an Asset Acquisition, the amount of income or earnings
relating thereto and the amount of Consolidated Interest Expense associated
with any Indebtedness incurred in connection therewith, the pro forma calculations shall be determined in accordance
with GAAP and Regulation S-X under the Securities Act, to the extent
applicable, and may take into account such reasonable additional expense
synergies and other adjustments determined, in each case, in good faith by a
responsible financial or accounting officer of the Company to the extent
permitted by GAAP and Regulation S-X. Any Person that is a Restricted
Subsidiary on the determination date will be deemed to have been a Restricted
Subsidiary at all times during such four-quarter period and any Person that is
not a Restricted Subsidiary on the determination date will be deemed not to
have been a Restricted Subsidiary at any time during such four-quarter period.
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness
shall be calculated as if the rate in effect on the date of determination had
been the applicable rate for the entire period (taking into account any
Interest Rate Agreement applicable to such Indebtedness if such Interest Rate
Agreement has a remaining term that extends at least until the end of such
period).


 


“Consolidated
Interest Expense” means, with respect to any Person for any period,
the total interest expense of such Person and its Restricted Subsidiaries for
such period as determined on a consolidated basis in accordance with GAAP
(including commitment fees, letter of credit fees and the interest component of
Capital Lease Obligations), including the net amounts paid or received under
all Interest Rate Agreements, plus, to the extent not included in such interest
expense and without duplication, (1) amortization of debt discount, (2) capitalized
interest, (3) non-cash interest expense, (4) any interest expense on
Indebtedness of another Person that is guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries, whether or not such Guarantee or Lien is called
upon, (5) the interest portion of any deferred payment obligation, and (6) the
product of (x) all cash and Disqualified Stock dividends in respect of all
Disqualified Stock of such Person held by Persons other than such Person or a
wholly-owned Subsidiary of such Person times (y) a fraction, the numerator
of which is one and the denominator of which is 


 


7

















 


one
minus the then current effective consolidated federal, state and local tax rate
of such Person, expressed as a decimal, and less, to the extent included in
such total interest expense, the amortization of capitalized debt issuance
costs.


 


“Consolidated
Net Income” means, with respect to any Person for any period, the
net income (loss) of such Person and its consolidated Restricted Subsidiaries
for such period determined in accordance with GAAP; provided, however, that there
shall not be included in such Consolidated Net Income (1) the net income
(but not loss) of any Restricted Subsidiary of such Person to the extent that
the declaration or payment of dividends or similar distributions by such
Restricted Subsidiary was not permitted (without giving effect to any
non-permanent waiver), directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary, (2) any
gains or losses realized upon the sale or other disposition of any assets of
such Person or its consolidated Restricted Subsidiaries not sold or disposed of
in the ordinary course of business (including Capital Stock or pursuant to any sale
and leaseback transaction), (3) any non-recurring or extraordinary gain or
loss (including expenses related to the issuance of the Notes), (4) the
net income of any Person accrued prior to the date it became a Restricted
Subsidiary of the referent Person or is merged or consolidated with the
referent Person or a Restricted Subsidiary of the referent Person, (5) the
cumulative effect of a change in accounting principles, (6) subject to
clause (7) below, the net income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting, except to the extent of the amount of dividends or similar
distributions paid in cash to the specified Person or a Restricted Subsidiary
of the Person, (7) the net income (or loss) of any Unrestricted
Subsidiary, whether or not distributed to the specified Person or one of its
Restricted Subsidiaries, (8) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Original Issue Date,
and (9) income or loss attributable to discontinued operations (including,
without limitation, operations disposed of during such period whether or not
such operations were classified as discontinued).


 


“Consolidated
Net Worth” means, with respect to any Person as of any date, the sum
of:


 


(1)                                 the
consolidated equity of the common stockholders of such Person as of such date;
plus


 


(2)                                 the respective
amounts reported on such Person’s balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any such cash received by
such Person upon issuance of such preferred stock less (x) all write-ups (other
than write-ups resulting from foreign currency translations and write-ups of
tangible assets of a going concern business made 12 months after the
acquisition of such business) subsequent to the date of this Indenture in the
book value of any asset owned by such Person or a consolidated Subsidiary of
such Person, and (y) all unamortized debt discount and expense and
unamortized deferred charges as of such date, all of the foregoing determined
in accordance with GAAP.


 


8

















 


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


 


“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.


 


“Definitive
Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06 hereof, substantially
in the form of Exhibit A hereto except that such Note shall not bear the
Global Note Legend and shall not have the “Schedule of Exchanges of Interests
in the Global Note” attached thereto.


 


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


 


“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
of the Capital Stock, in whole or in part, on or prior to the date that is
ninety-one (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 the covenant described under Section 5.07
hereof.  The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this Indenture will be the
maximum amount that the Company and its Restricted 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.


 


“Distribution
Compliance Period” means the forty (40)-day distribution compliance
period as defined in Rule 903(b)(2) of Regulation S.


 


“Domestic
Restricted Subsidiary” means any Restricted Subsidiary of the
Company that was formed under the laws of the United States or any state of the
United Sates or the District of Columbia or that guarantees or otherwise
provides direct credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries.


 


“DTC”
means The Depository Trust Company.


 


“EBITDA”
with respect to any Person for any period means the sum (without duplication)
of Consolidated Net Income, plus the following to the extent deducted in
calculating such Consolidated Net Income:


 


9

















 


(1)                                 all income tax
expense of such Person and its consolidated Restricted Subsidiaries;


 


(2)                                 Consolidated
Interest Expense;


 


(3)                                 depreciation
and amortization expense of such Person and its Restricted Subsidiaries
(excluding amortization expense attributable to a prepaid cash item that was
paid in a prior period); and


 


(4)                                 all other
non-cash charges of such Person and its consolidated Restricted Subsidiaries
(excluding any such non-cash charge to the extent that it represents an accrual
of or reserve for cash expenditures in any future period),


 


in each case for such
period. Notwithstanding the foregoing, the provisions for taxes based on the
income or profits of, and the depreciation and amortization and non-cash
charges of, a Restricted Subsidiary shall be added to Consolidated Net Income
to compute EBITDA only to the extent (and in the same proportion) that the net
income of such Restricted Subsidiary was included in calculating Consolidated
Net Income and only if a corresponding amount would be permitted at the date of
determination to be dividended to the Person in question by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.


 


“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
Account” shall mean the account into which the Company will have
deposited on the date of this Indenture, pursuant to the Escrow Agreement, cash
or Government Securities that, upon maturity, will be equal to the amount  sufficient for the Company to fully pay the
initial six cash interest payments when due on the Notes, to be held by the
Escrow Agent for the benefit of the Holders.


 


“Escrow Agent”
means Wells Fargo Bank, National Association, in its capacity as Escrow Agent
under the Escrow Agreement, together with its successors in such capacity.


 


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


 


“Euroclear”
means Euroclear Bank, S.A./N.V.


 


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


 


“Exchange
Offer” means that certain exchange offer and consent solicitation by
the Company to exchange any and all tendered and accepted Existing Notes for a
like principal amount of Interim Notes and to obtain the related consents to
modify the indenture, intercreditor 


 


10

















 


agreement
and security agreements governing and relating to the Existing Notes, initiated
by the Company on or about October [    ],
2009, as the same may be amended or extended from time to time.


 


“Exchange
Offer Completion Date” means the date on which the Exchange Offer is
consummated and the Interim Notes are first issued.


 


“Excluded
Assets” means: (1) any lease, license, permit, franchise,
power, authority or right if, to the extent that and for long as (A) the
grant of a security interest therein validly constitutes or would result in the
abandonment, invalidation or unenforceability of such lease, license, permit,
franchise, power, authority or right or the termination or default under the
instrument or agreement by which such lease, license, permit, franchise, power,
authority or right is governed and (B) such abandonment, invalidation,
unenforceability, breach, termination or default is not rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor
provision) of any relevant jurisdiction or other applicable law (including the
Bankruptcy Code) or principles of equity; provided, however, that (x) such lease, license, permit,
franchise, power, authority or right will be an Excluded Asset only to the
extent and for as long as the conditions set forth in clauses (A) and (B) of
this paragraph are and remain satisfied, and to the extent such assets
otherwise constitute Collateral, such assets will cease to be Excluded Assets
and will become subject to the first priority security interest of the
Collateral Agent for the benefit of the Holders and of the Pari Passu
Collateral Agent for the benefit of the holders of any Pari Passu Obligations,
immediately and automatically at such time as such conditions cease to exist,
including by reason of any waiver or consent under the applicable instrument or
agreement, and (y) the proceeds of any sale, lease or other disposition of
any such lease, license, permit, franchise, power, authority or right that is
or becomes an Excluded Asset shall not be an Excluded Asset and shall at all
times be and remain subject to the first priority security interest of the Collateral
Agent for the benefit of the Holders and of the Pari Passu Collateral Agent for
the benefit of the holders of any Pari Passu Obligations, (2) non-material
real property, (3) leased real property, and (4) any instrument
evidencing Indebtedness owed to the Company or any of the Guarantors to the
extent that (A) the existence and amount of such instrument was disclosed
in the Company’s Offering Memorandum dated October [    ],
2009 relating to its offer to exchange Existing Notes for Interim Notes, as
amended up to the Exchange Offer Completion Date or (B) such instrument is
created following the Exchange Offer Completion Date in a transaction that
complies with the Interim Indenture or following the Mandatory Redemption Date
in a transaction that complies with this Indenture, in each case only if the
aggregate principal amount of such instrument, along with all other instruments
evidencing Indebtedness owed to the Company or any of the Guarantors pursuant
to the same transaction, or any other of a series of related transactions, as
the transaction giving rise to such first instrument, is less than $100,000.


 


“Existing
Collateral Agreements” means all security agreements, pledge
agreements, collateral assignments, mortgages, deeds of trust, collateral agency
agreements, control agreements or other grants or transfers for security
executed and delivered by the Company or any Guarantor creating (or purporting
to create) a Lien upon Collateral in favor of the Existing Notes Collateral
Agent pursuant to the Existing Notes Indenture, in each case, as amended,
modified, renewed, restated or replaced, in whole or in part, from time to
time, in accordance with its terms.


 


11

















 


“Existing
Indebtedness” means all Indebtedness of the Company and its
Restricted Subsidiaries in existence on the Mandatory Redemption Date, until
such amounts are repaid.


 


“Existing
Note Indebtedness” means: (i) the Existing Notes and the
guarantees of the Existing Notes and (ii) any additional Existing Notes
and guarantees issued pursuant to the Existing Notes Indenture.


 


“Existing
Note Lien” means a Lien granted by the Existing Collateral
Agreements to the Existing Notes Collateral Agent (or any other holder, or
representative of holders, of Existing Note Obligations), at any time, upon any
assets of the Company or any guarantor of the Existing Notes to secure Existing
Note Obligations.


 


“Existing
Note Obligations” means Existing Note Indebtedness and all other
Obligations in respect thereof.


 


“Existing
Notes” means the Company’s 9.00% Convertible Senior Secured Notes
due 2012, issued under the Existing Notes Indenture.


 


“Existing
Notes Collateral Agent” means Wells Fargo Bank, National
Association, in its capacity as Collateral Agent under the Existing Collateral
Agreements pursuant to the Existing Notes Indenture, together with its
successors in such capacity.


 


“Existing
Notes Documents” means the Existing Notes Indenture, the Existing
Notes, the guarantees securing the Existing Notes, the Existing Collateral
Agreements, and any other agreements governing, securing or relating to any
Existing Note Obligations, each as amended from time to time.


 


“Existing
Notes Indenture” means the indenture among the Company, the
guarantors thereunder and Wells Fargo Bank, National Association, as trustee,
dated November 9, 2006, as amended from time to time.


 


“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), evidenced by a Board
Resolution delivered to the Trustee.


 


“FCC”
means the U.S. Federal Communications Commission and any successor agency that
is responsible for regulating the U.S. telecommunications industry.


 


“FCC License”
means any authorization, license or permit issued by the FCC, together with any
extensions or renewals thereof.


 


“Fundamental
Change” will be deemed to have occurred at such time as:


 


(1)                                 any “person” or
“group” (as these terms are used for purposes of Section 13(d) and 14(d) of
the Exchange Act), other than a Permitted Holder or a “group” the majority of
the voting power of the shares of the Company’s Capital Stock beneficially
owned by which is beneficially owned by Permitted Holders, is or


 


12
















 


becomes the “beneficial owner” (as that term
is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of
50% or more of the total voting power of all classes of the Company’s Capital
Stock entitled to vote generally in the election of directors;


 


(2)                                 the following
Persons cease for any reason to constitute a majority of the Company’s Board of
Directors:


 


(A)                             individuals who
on the Original Issue Date constituted the Company’s Board of Directors; and


 


(B)                               any new
directors whose election to the Company’s Board of Directors or whose
nomination for election by the Company’s stockholders was approved by at least
a majority of the Company’s Board of Directors, or if applicable, a majority of
the Company’s directors on the Board of Directors’ nominating committee then
still in office who were either directors on the Original Issue Date or whose
election or nomination for election was previously so approved;


 


(3)                                 the Company
consolidates with, or merges with or into, another Person or any Person consolidates
with, or merges with or into, the Company, in any such event other than
pursuant to a transaction in which the Persons that “beneficially owned,”
directly or indirectly, the shares of the Company’s Voting Stock immediately
prior to such transaction, “beneficially own,” directly or indirectly,
immediately after such transaction, shares of the continuing or surviving
Person’s Voting Stock representing at least a majority of the total voting
power of all outstanding classes of Voting Stock of the continuing or surviving
Person;


 


(4)                                 the sale,
transfer, lease, conveyance or other disposition of all or substantially all of
the Company’s assets or properties to any “person” or “group” (as those terms
are used in Sections 13(d) and 14(d) of the Exchange Act), including
any group acting for the purpose of acquiring, holding, voting or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange
Act; or


 


(5)                                 the Company is
liquidated or dissolved or holders of the Company’s Capital Stock approve any
plan or proposal for its liquidation or dissolution.


 


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


 


“Global Note
Legend” means the legend set forth in Section 2.06(f)(ii) hereof,
which is required to be placed on all Global Notes issued under this Indenture.


 


“Global Notes”
means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in
the name of 


 


13

















 


the
Depositary or its nominee, substantially in the form of Exhibit A hereto
and that bears the Global Note Legend and that has the “Schedule of Exchanges
of Interests in the Global Note” attached thereto.


 


“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 Domestic Restricted Subsidiary on the date of this Indenture, and
each other Domestic Restricted Subsidiary 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 incurred in the ordinary course of business to
protect against interest rate and foreign currency exchange rate fluctuations,
under:


 


(1)                                 interest rate
swap agreements, interest rate cap agreements and interest rate collar
agreements;


 


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


 


(3)                                 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.


 


“IAI Global
Note” means a Global Note substantially in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary
or its nominee, that shall be initially issued in a denomination equal to $0,
but shall thereafter be revised to represent the outstanding principal amount
of the Notes transferred to Institutional Accredited Investors.


 


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


 


(1)                                 in respect of
borrowed money;


 


14

















 


(2)                                 evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);


 


(3)                                 in respect of
banker’s acceptances;


 


(4)                                 representing
Capital Lease Obligations;


 


(5)                                 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


 


(6)                                 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
prepared in accordance with GAAP and also includes, to the extent not otherwise
included, the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or, with
respect to any Subsidiary of such Person, the liquidation preference with
respect to any preferred Equity Interests. 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.


 


“Indirect
Participant” means a Person who holds a beneficial interest in a Global
Note through a Participant.


 


“Initial
Notes” means $[125.0] million
aggregate principal amount of Notes issued under this Indenture on the date of
this Indenture.


 


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


 


“Intercreditor
Agreement” means the omnibus intercreditor agreement, substantially
in the form of Exhibit F hereto, as amended, modified, superseded,
reinstated, succeeded or replaced from time to time in accordance with its
terms and the terms of this Indenture, entered into concurrently with the
closing of the Working Capital Facility or upon the incurrence of any Pari
Passu Indebtedness incurred after the date of this Indenture, among the
Company, the Guarantors, any Working Capital Facility Collateral Agent, the
Collateral Agent, on behalf of the Holders, and any Pari Passu Collateral
Agent, on behalf of holders of Pari Passu Indebtedness (or if none, the holders
of Pari Passu Indebtedness).


 


“Interest
Rate Agreement” means with respect to any Person any interest rate
protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedge 


 


15

















 


agreement
or other similar agreement or arrangement designed to provide protection
against fluctuations in interest rates as to which such Person is party or a
beneficiary.


 


“Interim
Indenture” means the indenture among the Company, the guarantors
thereunder and Wells Fargo Bank, National Association, as trustee, dated [                ]
[    ], 2009, as amended from time to time.


 


“Interim
Notes” means the 9.00% Mandatorily Redeemable Convertible Senior
Secured Notes due 2012 issued by the Company pursuant to the Interim 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 Restricted Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to
any such sale or disposition, such Person is no longer a Restricted Subsidiary
of the Company, the Company or such Restricted Subsidiary will be deemed to
have made an Investment on the date of any such sale or disposition in such
Restricted Subsidiary. The acquisition by the Company or any Restricted
Subsidiary of the Company of a Person that holds an Investment in a third
Person will be deemed to be an Investment by the Company or such Restricted
Subsidiary in such third Person.


 


“Issue Date”
means the date of the original issue of the Notes.


 


“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 UCC
(or equivalent statutes) of any jurisdiction.


 


“Mandatory
Redemption” means the mandatory redemption of the Interim Notes in
accordance with the provisions of the Interim Indenture, pursuant to which the
Company redeemed the Interim Notes, upon the satisfaction or waiver of certain
specified conditions, for specified amounts of cash, shares of Common Stock,
and Notes.


 


“Mandatory
Redemption Date” means the date on which the Mandatory Redemption
was consummated and Notes were originally issued.


 


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


 


“Net Proceeds”
means the aggregate cash proceeds received by the Company or any of its
Restricted 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), net of (1) the direct
costs relating to such Asset Sale, including, without limitation, legal, 


 


16

















 


accounting
and investment banking fees, sales commissions, relocation expenses incurred as
a result of the Asset Sale, and taxes paid or payable as a result of the Asset
Sale after taking into account any available tax credits or deductions and any
tax sharing arrangements, (2) amounts required to be applied to the
repayment of Indebtedness, other than Indebtedness under a Working Capital
Facility, secured by a Lien on the asset or assets that were the subject of
such Asset Sale, and (3) any reserve for adjustment in respect of the sale
price of such asset or assets established in accordance with GAAP.


 


“New License
Subsidiary” means a new Subsidiary formed by the Company after the
consummation of the Exchange Offer, which shall be a Restricted Subsidiary
hereunder, to which the Company is obligated to transfer its FCC Licenses,
subject to certain conditions, as set forth in Section 5.23.


 


“Non-Recourse
Indebtedness” means Indebtedness:


 


(1)                                 as to which
neither the Company nor any of its Restricted Subsidiaries (A) provides
credit support of any kind (including any undertaking, agreement or instrument
that would constitute Indebtedness) or (B) is directly or indirectly
liable as a guarantor or otherwise; and


 


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


 


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


 


“Note
Documents” means this Indenture, the Notes, the Note Guarantees, the
Collateral Agreements and any other agreements governing, securing or relating
to any Note Obligations.


 


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


 


“Note
Indebtedness” means: (i) the Notes and the Note Guarantees
issued upon consummation of the Mandatory Redemption and (ii) any Additional
Notes and Note Guarantees issued pursuant to this Indenture.


 


“Note Lien”
means a Lien granted by a Collateral Agreement to the Collateral Agent (or any
other holder, or representative of holders, of Note Obligations), at any time,
upon any assets of the Company or any Guarantor to secure Note Obligations.


 


“Note
Obligations” means Note Indebtedness and all other Obligations in
respect thereof.


 


“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.


 


17

















 


“Obligations”
means:


 


(1)                                 with respect to
Note Indebtedness, any principal, premium, if any, accrued and unpaid interest,
or monetary penalty, or damages, due by the Company or any Guarantor under the
terms of the Notes or this Indenture;


 


(2)                                 with respect to
Working Capital Facility Indebtedness, any principal (including reimbursement
obligations with respect to letters of credit whether or not drawn), interest
(including, to the extent legally permitted, all interest accrued thereon after
the commencement of any insolvency or liquidation proceeding at the rate,
including any applicable post-default rate, specified in the Working Capital
Facility Documents, even if such interest is not enforceable, allowable or
allowed as a claim in such proceeding), premium (if any), fees,
indemnifications, reimbursements, expenses and other liabilities payable by the
Company or any guarantor of the Working Capital Facility Indebtedness.


 


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


 


“Officer’s
Certificate” means a certificate signed on behalf of the Company by
an Officer of the Company, who must be the Chief Executive Officer, the Chief
Financial Officer, the Treasurer or the Chief 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.


 


“Ordinary
Course Affiliate Transaction” means any Affiliate Transaction
entered into in the ordinary course of business that is comprised of (1) a
lease or leases or other similar arrangements for the installation and
existence of the Company’s or any of its Restricted Subsidiaries’ equipment on
or about radio towers or other structures, (2) the acquisition or
provision of communication transport services via fiber optic or other
communications infrastructure, or (3) other contractual arrangements
relating to (1) or (2).


 


“Original
Issue Date” means November 9, 2006, the date of the original
issue of the Existing Notes.


 


“Pari Passu
Collateral Agent” means, at any time, the Person serving at such
time as the “Collateral Agent” under the agreement governing any Pari Passu
Indebtedness or any other representative then most recently designated in
accordance with the applicable provisions of any such agreement, together with
its successors in such capacity.


 


“Pari Passu
Indebtedness” has the meaning ascribed to it in the Intercreditor Agreement.


 


18

















 


“Pari Passu
Obligations” means the Pari Passu Indebtedness and all other
Obligations in respect of Pari Passu Indebtedness.


 


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


 


“Permitted
Business” means the business of the Company and its Restricted
Subsidiaries as described in the Company’s annual report on Form 10-K for
the year ended December 31, 2008 and any business or activity reasonably
related or ancillary thereto.


 


“Permitted
Holders” means Crown Castle Investment Corp., Solus Alternative
Asset Management LP, BlackRock, Inc., Och-Ziff Capital Management Group
LLC, Zazove Associates, LLC and their respective Affiliates.


 


“Permitted
Investments” means:


 


(1)                                 any Investment
in the Company or in a Guarantor;


 


(2)                                 any investment
in Cash Equivalents;


 


(3)                                 any Investment
by the Company or a wholly-owned Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:


 


(A)                             such Person
becomes a Guarantor; 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
Guarantor;


 


(4)                                 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;


 


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


 


(6)                                 any Investments
received in compromise or resolution of litigation, arbitration or other
disputes, including but not limited to any Investments received in compromise
or resolution of obligations of trade creditors or customers that were incurred
in the ordinary course of business of the Company or any of its Restricted
Subsidiaries, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or
customer;


 


(7)                                 Investments
represented by Hedging Obligations;


 


(8)                                 loans or
advances to employees made in the ordinary course of business of the Company or
any Restricted Subsidiary of the Company for bona fide business 


 


19

















 


purposes in an aggregate principal amount not
to exceed $1.0 million at any one time outstanding;


 


(9)                                 the making of
any other Investment not otherwise permitted under the immediately preceding
clauses (1) to (8) having a Fair Market Value (measured on the date such
Investment was made and without giving effect to subsequent changes in value),
when taken together with all other Permitted Investments made since the date of
this Indenture pursuant to this clause (9) that are at the time
outstanding, in an aggregate amount not to exceed $5.0 million;


 


(10)                           repurchases of
or other Investments in the Existing Notes or the Notes;


 


(11)                           deposits, down
payments and prepayments for asset purchases in the ordinary course of business
in a Permitted Business of the Company or any of its Restricted Subsidiaries;


 


(12)                           receivables
owing to the Company or any Restricted Subsidiary created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted Subsidiary
deems reasonable under the circumstances;


 


(13)                           surety and
performance bonds and workers’ compensation, utility, lease, tax, performance
and similar deposits and prepaid expenses in the ordinary course of business;
and


 


(14)                           any Investment,
not otherwise permitted under clauses (1) or (3), by the Company or a
wholly-owned Restricted Subsidiary of the Company in a Person that is, or as a
result of such Investment becomes, a wholly-owned Restricted Subsidiary of the
Company that is not a Domestic Restricted Subsidiary, in an aggregate principal
amount not to exceed $5.0 million at any one time outstanding;


 


provided, that no
Investment in a Restricted Subsidiary that is not a Domestic Restricted
Subsidiary shall be a Permitted Investment unless made pursuant to, and to the
extent permitted by, clause (14) above.


 


“Permitted
Liens” means:


 


(1)                                 subject to the
terms of the Intercreditor Agreement, Liens on assets of the Company or any of
the Guarantors securing Indebtedness and other Obligations under the Working
Capital Facility that was permitted by the terms of this Indenture to be
incurred and/or securing Hedging Obligations related thereto, which Liens (i) on
any assets that are classified as current assets under GAAP may be prior to the
Liens securing the Notes, and (ii) on any other assets shall be pari passu with, and have equal priority with, the Liens
securing the Notes;


 


(2)                                 [Reserved];


 


20

















 


(3)                                 subject to the
terms of the lntercreditor Agreement, Liens to secure Indebtedness (including
Capital Lease Obligations) permitted by clause (10) of the second
paragraph of Section 5.09 hereof covering only the assets acquired with or
financed by such Indebtedness;


 


(4)                                 Liens securing
Indebtedness and other Obligations represented by the Initial Notes issued on
the Issue Date and any Additional Notes issued as interest on the Notes, and
the Note Guarantees with respect thereto;


 


(5)                                 Liens in favor
of the Company or any Restricted Subsidiary of the Company;


 


(6)                                 Liens to secure
the performance of statutory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course of
business;


 


(7)                                 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;


 


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


 


(9)                                 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;


 


(10)                           Liens on
property of a Person existing at the time such Person is merged with or into or
consolidated with the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to, and not
incurred in contemplation of, such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Company or the Subsidiary;


 


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


 


(12)                           Liens to secure
any Permitted Refinancing Indebtedness permitted to be incurred under this
Indenture; provided, however,
that:


 


(A)                             the new Lien
shall be limited to all or part of the same property and assets that secured
or, under the written agreements pursuant to which the 


 


21

















 


original Lien arose, could secure the
original Lien (plus improvements and accessions to such property or proceeds or
distributions thereof); and


 


(B)                               the
Indebtedness secured by the new Lien is not increased to any amount greater
than the sum of (x) the outstanding principal amount, or, if greater,
committed amount, of the Permitted Refinancing Indebtedness and (y) an
amount necessary to pay any fees and expenses, including premiums, related to
such Permitted Refinancing Indebtedness;


 


(13)                           to the extent,
in each case, not otherwise resulting in an Event of Default, Liens arising by
reason of a judgment, decree or court order and any Liens that are required to
protect or enforce any rights in any administrative, arbitration or other court
proceedings in the ordinary course of business;


 


(14)                           Liens contained
in purchase and sale agreements limiting the transfer of assets pending the
closing of the transactions contemplated thereby;


 


(15)                           Liens that may
be deemed to exist by virtue of contractual provisions that restrict the
ability of the Company or any of its Subsidiaries from granting or permitting
to exist Liens on their respective assets; and


 


(16)                           Liens securing
the Existing Note Obligations under the Existing Notes Documents.


 


“Permitted
Refinancing Indebtedness” means any Indebtedness of the Company or
any of its Restricted 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 Restricted Subsidiaries (other
than intercompany Indebtedness); provided that:


 


(1)                                 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 and unpaid interest on the Indebtedness and the amount of all
fees and expenses, including premiums, incurred in connection therewith);


 


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


 


(3)                                 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


 


22
















 


(4)                                 such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary
of the Company who is the obligor on the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged.


 


“Permitted
Senior Liens” means Permitted Liens of the types described in
clauses (1), (3), (6) through (11), and (12) (solely to the extent of
Permitted Liens securing Permitted Refinancing Indebtedness in respect of
Indebtedness previously secured by a Permitted Senior Lien) of the definition
of “Permitted Liens.”


 


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


 


“Private
Placement Legend” means the legend set forth in Section 2.06(f)(i) hereof
to be placed on all Notes issued under this Indenture except where otherwise
permitted by the provisions of this Indenture.


 


“Pro Rata
Amount” means, with respect to any Holder’s Notes that are to be
redeemed or repurchased pursuant to the terms of this Indenture, a fraction,
the numerator of which is the aggregate principal amount of such Holder’s Notes
that are to be so redeemed or repurchased, and the denominator of which is the
aggregate principal amount of Notes outstanding.


 


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


 


“Registration
Rights Agreement” means the registration rights agreement, dated as
of the date of this Indenture, among the Company, the Guarantors and certain
Holders, as such agreement may be amended, modified or supplemented from time
to time in accordance with its terms.


 


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


 


“Regulation S
Global Note” means a Global Note substantially in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary
or its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 903.


 


“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
Definitive Note” means a Definitive Note bearing the Private
Placement Legend.


 


23

















 


“Restricted
Global Note” means the 144A Global Note, the IAI Global Note and the
Regulation S Global Note, each of which shall bear the Private Placement
Legend.


 


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


 


“Restricted
Subsidiary” of any Person means any Subsidiary of such Person which
at the time of determination is not an Unrestricted Subsidiary.


 


“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).


 


“Rule 903”
means Rule 903 promulgated under the Securities Act (or any successor
provision promulgated by the SEC).


 


“Rule 904”
means Rule 904 promulgated under the Securities Act (or any successor
provision promulgated by the SEC).


 


“SEC”
means the U.S. Securities and Exchange Commission.


 


“Secured
Indebtedness Documents” means the Note Documents, the Existing Notes
Documents and the Working Capital Facility Documents.


 


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


 


“Security
Agreement” means the collateral agreement, substantially in the form
of Exhibit H hereto, as amended, modified, superseded, reinstated,
succeeded or replaced from time to time in accordance with its terms and the
terms of this Indenture, among FiberTower Corporation, the subsidiaries of
FiberTower Corporation from time to time party thereto, and the Collateral
Agent.


 


“Senior
Lenders” means the Persons holding Working Capital Facility
Indebtedness.


 


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


 


“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 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:


 


24

















 


(1)                                 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


 


(2)                                 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).


 


“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.


 


“Treasury
Rate” means the yield to maturity at the time of computation of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519)
which has become publicly available at least two Business Days prior to the
date fixed for redemption or, in the case of defeasance, prior to the date of
deposit (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the then
remaining average life to [                ]
[    ], 2013; provided,
however, that if the average life to
such date of the Notes is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest
one-twelfth of a year) from the weekly average yields of United States Treasury
securities for which such yields are given, except that if the average life to
such date of the Notes is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.


 


“Trustee”
means Wells Fargo Bank, National Association, 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.


 


“Unrestricted
Definitive Note” means a Definitive Note that does not bear and is
not required to bear the Private Placement Legend.


 


“Unrestricted
Global Note” means a Global Note that does not bear and is not
required to bear the Private Placement Legend.


 


“Unrestricted
Subsidiary” means any Subsidiary of the Company that is designated
by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant
to a Board Resolution, but only to the extent such Subsidiary:


 


25

















 


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


 


(2)                                 except as
permitted by Section 5.11 hereof, is not a party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary other than those that might be obtained at the time from
Persons who are not Affiliates of the Company or any Restricted Subsidiary of
the Company;


 


(3)                                 is a Person
with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (A) to subscribe for
additional Equity Interests or (B) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels of
operating results; and


 


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


 


Any designation of a
Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to
the Trustee by filing with the Trustee a certified copy of the Board Resolution
giving effect to such designation and an Officer’s Certificate certifying that
such designation complied with the preceding conditions and was permitted by Section 5.07
hereof.  If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 5.09 hereof, the Company will be in
default of such covenant. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
will only be permitted if (A) such Indebtedness is permitted under Section 5.09
hereof, calculated on a pro forma basis
as if such designation had occurred at the beginning of the four-quarter
reference period, and (B) no Default or Event of Default would be in
existence following such designation.


 


“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.


 


“Working
Capital Facility” means, one or more debt facilities, up to an
aggregate principal amount of $20.0 million, 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.


 


26

















 


“Working
Capital Facility Collateral Agent” means, at any time, the Person
serving at such time as the “Collateral Agent” under the Working Capital
Facility or any other representative then most recently designated in
accordance with the applicable provisions of the Working Capital Facility,
together with its successors in such capacity.


 


“Working Capital
Facility Documents” means the Working Capital Facility, the Working
Capital Facility Security Documents, and all agreements governing or relating
to any Working Capital Facility Obligations.


 


“Working
Capital Facility Indebtedness” means:


 


(1)                                 Indebtedness of
the Company, the Guarantors and the guarantors under the Working Capital
Facility that was permitted to be incurred and secured under each applicable
Secured Indebtedness Document (or as to which the lenders under the Working
Capital Facility obtained an Officer’s Certificate at the time of incurrence to
the effect that such Indebtedness was permitted to be incurred and secured by
all applicable Secured Indebtedness Documents); and


 


(2)                                 Hedging
Obligations incurred to hedge or manage interest rate risk with respect to
Working Capital Facility Indebtedness; provided, that:


 


(A)                             such Hedging
Obligations are secured by a Working Capital Facility Lien on all of the assets
that secure Indebtedness under the Working Capital Facility; and


 


(B)                               such Working
Capital Facility Lien is senior to or on a parity with the Working Capital
Facility Liens securing Indebtedness under the Working Capital Facility.


 


“Working
Capital Facility Lien” means a Lien granted by a Working Capital
Facility Security Document to the Working Capital Facility Collateral Agent (or
any Senior Lender or other representative of the Senior Lenders), at any time,
upon any assets of the Company, any Guarantor or any guarantor under the
Working Capital Facility to secure Working Capital Facility Obligations.


 


“Working
Capital Facility Obligations” means the Working Capital Facility
Indebtedness and all other Obligations in respect of Working Capital Facility
Indebtedness.


 


“Working
Capital Facility Security Documents” means the Intercreditor Agreement
and all security agreements, pledge agreements, collateral assignments,
mortgages, deeds of trust, collateral agency agreements, control agreements or
other grants or transfers for security executed and delivered by the Company or
any Guarantor creating (or purporting to create) a Working Capital Facility
Lien upon collateral in favor of the Working Capital Facility Collateral Agent,
in each case, as amended, modified, renewed, restated or replaced, in whole or
in part, from time to time, in accordance with its terms.


 


27

















 


Section 1.02.                         Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  5.11

  
	
  “Applicable Premium”

  	
   

  	
  3.07(b)

  
	
  “Asset Sale Offer”

  	
   

  	
  3.09

  
	
  “Authentication Order”

  	
   

  	
  2.02

  
	
  “Covenant Defeasance”

  	
   

  	
  9.03

  
	
  “Event of Default”

  	
   

  	
  7.01

  
	
  “Excess Proceeds”

  	
   

  	
  5.10

  
	
  “Fundamental Change Expiration Time”

  	
   

  	
  3.08(b)

  
	
  “Fundamental Change Notice”

  	
   

  	
  3.08(b)

  
	
  “Fundamental Change Repurchase Date”

  	
   

  	
  3.08(a)

  
	
  “incur”

  	
   

  	
  5.09

  
	
  “Legal Defeasance”

  	
   

  	
  9.02

  
	
  “Offer Amount”

  	
   

  	
  3.09

  
	
  “Offer Period”

  	
   

  	
  3.09

  
	
  “Option of Holder to Elect Repurchase”

  	
   

  	
  3.08(c)(i)

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Default”

  	
   

  	
  7.01

  
	
  “Premises”

  	
   

  	
  5.21

  
	
  “Purchase Date”

  	
   

  	
  3.09

  
	
  “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.


 


28

















 


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.


 


Notwithstanding anything in
this Indenture to the contrary, all determinations of Consolidated Coverage
Ratio, Consolidated Interest Expense, Consolidated Net Income, Consolidated Net
Worth and EBITDA, and all calculations made to determine compliance with, or
required under, the covenants contained herein (including without limitation Section 5.07
and 5.09), shall be made without giving effect to the election under SFAS 159
(or any similar accounting standard) permitting a Person to value its
liabilities at their fair value.


 


ARTICLE 2.

THE NOTES


 


Section 2.01.                         Form and
Dating.


 


(a)           General.  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.


 


(b)           Global Notes.  Notes issued in global form will be
substantially in the form of Exhibit A hereto (including the Global Note
Legend thereon and the “Schedule of Exchanges of Interests in the Global Note”
attached thereto).  Notes issued in
definitive form will be substantially in the form of Exhibit A hereto (but
without the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto).  Each Global Note 


 


29

















 


will represent such of the outstanding Notes
as will be specified therein and each will provide that it represents the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the Custodian,
at the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.


 


(c)           Euroclear and Clearstream
Procedures Applicable.  The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable
to transfers of beneficial interests in Global Notes that are held by
Participants through Euroclear and Clearstream.


 


Section 2.02.                         Execution and
Authentication.


 


An Officer shall sign the
Notes for the Company by manual or facsimile signature.  The Company’s seal may be reproduced on the
Notes and may be in facsimile form.


 


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 an Officer (an “Authentication
Order”) accompanied by an Officer’s Certificate, authenticate Notes
for original issue that may be validly issued under this Indenture, including
any Additional Notes issued 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 attached as Exhibit A hereto or, subject to the satisfaction of
all of the covenants in this Indenture, including, without limitation, Sections
5.09 and 5.12 of this Indenture, in each case in the form of Exhibit A
hereto, as part of the same series as the Initial Notes.  The aggregate principal amount of Notes
outstanding at any time may not exceed the aggregate principal amount of Notes
permitted to be incurred under this Indenture and authorized for issuance by
the Company pursuant to one or more Authentication Orders, 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 Depositary.


 


The Company shall maintain
an office or agency where Notes may be presented for registration of transfer
or for exchange (“Registrar”) and an office or
agency where Notes may 


 


30

















 


be
presented for payment (“Paying 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.  The term “Registrar”
includes any co-registrar, and the term “Paying Agent” includes any additional
paying agent.  The Company may change any
Paying Agent or Registrar without notice to the Holders.  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 and Paying Agent and to act as the
Custodian with respect to the Global Notes and as agent for service of notices
and demands.  The Company initially
appoints DTC to act as Depositary with respect to the Global Notes.


 


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 (7) 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 and the
Company shall otherwise comply with TIA § 312(a).


 


Section 2.06.                         Transfer and
Exchange.


 


(a)           Transfer and Exchange of Global
Notes.  A Global Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. 
All Global Notes will be exchanged by the Company for Definitive Notes
if:


 


(i)            the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing 


 


31

















 


agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary;


 


(ii)           the Company in its sole discretion determines that
the Global Notes (in whole but not in part) should be exchanged for Definitive
Notes and delivers a written notice to such effect to the Trustee; or


 


(iii)          there has occurred and is continuing a Default or
Event of Default with respect to the Notes.


 


Upon the occurrence of
either of the preceding events in (i) or (ii) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the
Trustee.  Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof.  Every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note.  A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b), (c) or (d) hereof.


 


(b)           Transfer and Exchange of
Beneficial Interests in the Global Notes.  The transfer and exchange of beneficial
interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures.  Beneficial interests in the Restricted Global
Notes will be subject to restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act.  Transfers of beneficial interests in the
Global Notes also will require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs, as
applicable:


 


(i)            Transfer of Beneficial Interests in the Same
Global Note.  Beneficial
interests in any Restricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the same Restricted
Global Note in accordance with the transfer restrictions set forth in the
Private Placement Legend; provided, however, that prior to the expiration of the Distribution Compliance
Period, transfers of beneficial interests in the Regulation S Global Note may
not be made to a U.S. Person or for the account or benefit of a U.S. Person
(other than the Initial Purchasers). 
Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note.  No written
orders or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(i).


 


(ii)           All Other Transfers and Exchanges of Beneficial
Interests in Global Notes.  In
connection with all transfers and exchanges of beneficial interests that are
not subject to Section 2.06(b)(i) above, the transferor of such
beneficial interest must deliver to the Registrar either:


 


(1)                                  both:


 


32
















 


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


 


(B)                               instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase; or


 


(2)                                  both:


 


(A)                             a written order
from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause to
be issued a Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged; and


 


(B)                               instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (2)(A) above.


 


Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.


 


(iii)                               Transfer of Beneficial
Interests to Another Restricted Global Note.  A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:


 


(1)                                 if the
transferee shall take delivery in the form of a beneficial interest in the 144A
Global Note, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;


 


(2)                                 if the
transferee shall take delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (2) thereof;
or


 


(3)                                 if the
transferee shall take delivery in the form of a beneficial interest in the IAI
Global Note, then the transferor must deliver a 


 


33

















 


certificate in the form of Exhibit B hereto, including the
certifications in item (3) thereof;


 


(iv)                              Transfer and Exchange of
Beneficial Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note.  A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.06(b)(ii) above and:


 


(1)                                 such transfer
is effected pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement; or


 


(2)                                 the Registrar
receives the following:


 


(A)                             if the holder
of such beneficial interest in a Restricted Global Note proposes to exchange
such beneficial interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C hereto,
including the certification in item (1)(a) thereof; or


 


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


 


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


 


 If any such transfer is effected pursuant to
subparagraph (ii) or (iv) above at a time when an Unrestricted Global
Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate one or more Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount of beneficial interests
transferred pursuant to subparagraph (ii) or (iv) above.


 


Beneficial interests in an
Unrestricted Global Note cannot be exchanged for, or transferred to Persons who
take delivery thereof in the form of, a beneficial interest in a Restricted
Global Note.


 


34

















 


(c)                                  Transfer
or Exchange of Beneficial Interests for Definitive Notes.


 


(i)                                     Beneficial Interests in
Restricted Global Notes to Restricted Definitive Notes.  If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:


 


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


 


(2)                                 if such
beneficial interest is being transferred to a QIB in accordance with Rule 144A,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;


 


(3)                                 if such
beneficial interest is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in
item (2) thereof;


 


(4)                                 if such
beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;


 


(5)                                 if such
beneficial interest is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the Securities
Act other than those listed in clauses (2) through (4) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;


 


(6)                                 if such beneficial
interest is being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or


 


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


 


the Trustee shall cause the
aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person designated
in the instructions a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this 


 


35

















 


Section 2.06(c) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant.  The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered.  Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.


 


(ii)                                  Beneficial Interests in
Restricted Global Notes to Unrestricted Definitive Notes.   A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note only if:


 


(1)                                 such transfer
is effected pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement; or


 


(2)                                 the Registrar
receives the following:


 


(A)                             if the holder
of such beneficial interest in a Restricted Global Note proposes to exchange
such beneficial interest for an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or


 


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


 


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


 


(iii)                               Beneficial Interests in
Unrestricted Global Notes to Unrestricted Definitive Notes.  If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee
will cause the aggregate principal amount of the applicable Global Note to be
reduced 


 


36

















 


accordingly pursuant to Section 2.06(h) hereof, and the
Company will execute and the Trustee will authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount.  Any Definitive Note
issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) will
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests through
instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant.  The
Trustee will deliver such Definitive Notes to the Persons in whose names such
Notes are so registered.  Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) will
not bear the Private Placement Legend.


 


(d)                                 Transfer
and Exchange of Definitive Notes for Beneficial Interests.


 


(i)                                     Restricted Definitive Notes
to Beneficial Interests in Restricted Global Notes.  If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following documentation:


 


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


 


(2)                                 if such
Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;


 


(3)                                 if such
Restricted Definitive Note is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;


 


(4)                                 if such
Restricted Definitive Note is being transferred pursuant to an exemption from
the registration requirements of the Securities Act in accordance with Rule 144,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;


 


(5)                                 if such
Restricted Definitive Note is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (2) through (4) above,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;


 


37

















 


(6)                                 if such
Restricted Definitive Note is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or


 


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


 


the Trustee will cancel the
Restricted Definitive Note, increase or cause to be increased the aggregate
principal amount of, in the case of clause (1) above, the appropriate
Restricted Global Note, in the case of clause (2) above, the 144A Global
Note, in the case of clause (3) above, the Regulation S Global Note, and
in all other cases, the IAI Global Note.


 


(ii)                                  Restricted Definitive Notes
to Beneficial Interests in Unrestricted Global Notes.  A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note only if:


 


(1)                                 such transfer
is effected pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement; or


 


(2)                                 the Registrar
receives the following:


 


(A)                             if the Holder
of such Definitive Note proposes to exchange such Note for a beneficial
interest in an Unrestricted Global Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item (1)(c) thereof;
or


 


(B)                               if the Holder
of such Definitive Note proposes to transfer such Note to a Person who shall
take delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;


 


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


 


38

















 


Upon
satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii),
the Trustee will cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global Note.


 


(iii)                               Unrestricted Definitive
Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Note to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time.  Upon receipt of a request for such an exchange
or transfer, the Trustee will cancel the applicable Unrestricted Definitive
Note and increase or cause to be increased the aggregate principal amount of
one of the Unrestricted Global Notes.


 


If any such exchange or
transfer from a Definitive Note to a beneficial interest is effected pursuant
to subparagraphs (ii) or (iii) of this subsection (d) at a time
when an Unrestricted Global Note has not yet been issued, the Company will
issue and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee will authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of Definitive Notes
so transferred.


 


(e)                                  Transfer
and Exchange of Definitive Notes for Definitive Notes.  Upon request by a Holder of Definitive Notes
and such Holder’s compliance with the provisions of this Section 2.06(e),
the Registrar will register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. 
In addition, the requesting Holder must provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).


 


(i)                                     Restricted Definitive Notes
to Restricted Definitive Notes.  Any Restricted Definitive Note may be transferred
to and registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the following:


 


(1)                                 if the transfer
will be made pursuant to Rule 144A, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in item (1) thereof;


 


(2)                                 if the transfer
will be made pursuant to Rule 903 or Rule 904, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the certifications
in item (2) thereof; or


 


(3)                                 if the transfer
will be made pursuant to any other exemption from the registration requirements
of the Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.


 


39

















 


(ii)                                  Restricted Definitive Notes
to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be
exchanged by the Holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:


 


(1)                                 such transfer
is effected pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement; or


 


(2)                                 the Registrar
receives the following:


 


(A)                             if the Holder
of such Restricted Definitive Note proposes to exchange such Note for an
Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or


 


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


 


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


 


(iii)                               Unrestricted Definitive
Notes to Unrestricted Definitive Notes.  A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Notes.  Upon
receipt of a request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.


 


Concurrently with the
issuance of such Notes, the Trustee will cause the aggregate principal amount
of the applicable Restricted Global Notes to be reduced accordingly, and the
Company will execute and the Trustee will authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Unrestricted
Definitive Notes in the appropriate principal amount.


 


(f)                                    Legends.  The following legends will appear on the face
of all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.


 


(i)                                     Private Placement Legend.


 


(1)                                 Except as
permitted by subparagraph (2) below, each Global Note and each Definitive
Note (and all Notes issued in exchange 


 


40

















 


therefore or substitution thereof) shall bear the legend in
substantially the following form:


 


“THE SECURITY (OR ITS
PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON AN EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT.  THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (a) IN THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (c) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)) THAT IS PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO FIBERTOWER CORPORATION THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER OF THE 


 


41

















 


SECURITY SO REQUESTS), (2) TO
THE ISSUER OF THE SECURITY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH
IN (A) ABOVE.”


 


(2)                                 Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to
subsections (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of
this Section 2.06 (and all Notes issued in exchange therefore or
substitution thereof) will not bear the Private Placement Legend.


 


(ii)                                  Global Note Legend.  Each Global Note will bear a legend in
substantially the following form:


 


“THIS GLOBAL NOTE IS HELD BY
THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE
IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY.


 


UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.  UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED


 


42
















 


REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.”


 


(g)                                 Cancellation
and/or Adjustment of Global Notes.  At such time as all beneficial interests in a
particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole and not in
part, each such Global Note will be returned to or retained and canceled by the
Trustee in accordance with Section 2.11 hereof.  At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes
represented by such Global Note will be reduced accordingly and an endorsement
will be made on such Global Note by the Trustee or by the Depositary at the
direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note,
such other Global Note will be increased accordingly and an endorsement will be
made on such Global Note by the Trustee or by the Depositary at the direction
of the Trustee to reflect such increase.


 


(h)                                 General
Provisions Relating to Transfers and Exchanges.


 


(i)                                     To permit registrations of
transfers and exchanges, the Company will execute and the Trustee will
authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the
Registrar’s request.


 


(ii)                                  No service charge will be
made to a holder of a beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or transfer
pursuant to Sections 2.10, 3.06, 3.08, 3.09, 5.10 and 10.05 hereof).


 


(iii)                               The Registrar will not be
required to register the transfer of or exchange of any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.


 


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


 


(v)                                 Neither the Registrar nor
the Company will be required:


 


(1)                                 to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business fifteen (15) days 


 


43

















 


before the day of any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of selection;


 


(2)                                 to register the
transfer of or to exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part; or


 


(3)                                 to register the
transfer of or to exchange a Note between a record date and the next succeeding
interest payment date.


 


(vi)                              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, premium, if any, 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.


 


(vii)                           The Trustee will
authenticate Global Notes and Definitive Notes in accordance with the
provisions of Section 2.02 hereof.


 


(viii)                        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.


 


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
Trustee or 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 delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions
hereof, and those described in this Section 2.08 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.


 


44

















 


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
protected 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
redemption 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.


 


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 any Guarantor, or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any Guarantor, 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 and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall dispose of canceled Notes (subject to the record
retention requirement of the Exchange Act) according to its standard
procedures.  The Company may not issue
new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.


 


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 Agreements, if applicable, interest payable on the defaulted
interest, to the Persons 


 


45

















 


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 ten (10) days prior to the related payment
date for such defaulted interest.  At
least fifteen (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.


 


Section 2.13.                         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 or
exchange 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 or exchange 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.                         Notices to
Trustee.


 


If the Company elects to
redeem Notes pursuant to the redemption provisions of Section 3.07(a) or
3.07(b) hereof, it must furnish to the Trustee, at least forty-five (45)
days but not more than sixty (60) days before a redemption date, an Officer’s
Certificate setting forth:


 


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


 


(2)                                  the redemption
date;


 


(3)                                  the principal
amount of Notes to be redeemed; and


 


(4)                                  the redemption
price.


 


Section 3.02.                         Selection of
Notes to Be Redeemed or Purchased.


 


If the Company chooses to
redeem less than all of the Notes, selection of the Notes for redemption will
be made by the Trustee either (a) in compliance with the requirements of
the principal national securities exchange, if any, on which the Notes are
listed, or (b) if the Notes are not then listed on a national securities
exchange, on a pro rata basis or by such method as the Trustee may reasonably
determine is fair and appropriate.


 


In the event of partial
redemption or purchase by lot, the particular Notes to be redeemed or purchased
will be selected, unless otherwise provided herein, not less than thirty (30)
nor 


 


46

















 


more
than sixty (60) days prior to the redemption or purchase date by the Trustee
from the outstanding Notes not previously called for redemption or purchase.


 


The Trustee will promptly
notify the Company in writing of the Notes selected for redemption or purchase
and, in the case of any Note selected for partial redemption or purchase, the
principal amount thereof to be redeemed or purchased.  Notes and portions of Notes selected will be
in amounts of $l,000 or whole multiples of $l,000; except that if all of the
Notes of a Holder are to be redeemed or purchased, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed or purchased.  Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption or purchase also apply to portions of Notes called
for redemption or purchase.


 


Section 3.03.                         Notice of
Redemption.


 


At least thirty (30) days
but not more than sixty (60) days before a redemption date, the Company will
mail or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than sixty (60) days prior to a
redemption date if the notice is issued in connection with a defeasance of the
Notes or a satisfaction and discharge of this Indenture pursuant to Articles 9
or 13 hereof.


 


The notice will identify the
Notes to be redeemed and will state:


 


(1)                                 the redemption
date;


 


(2)                                 the redemption
price;


 


(3)                                 if any Note is
being redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion will be
issued upon cancellation of the original Note (or appropriate adjustments to
the amount and beneficial interests in the Global Note will be made);


 


(4)                                 the name and
address of the Paying Agent;


 


(5)                                 that Notes
called for redemption must be surrendered to the Paying Agent to collect the
redemption price;


 


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


 


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


 


(8)                                 that no
representation is made as to the correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Notes.


 


47

















 


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


 


Section 3.04.                         Effect of
Notice of Redemption.


 


Once notice of redemption is
mailed in accordance with Section 3.03 hereof, Notes called for redemption
become irrevocably due and payable on the redemption date at the redemption
price.  A notice of redemption may not be
conditional.


 


Section 3.05.                         Deposit of
Redemption or Purchase Price.


 


One Business Day prior to
the redemption or purchase date, the Company will deposit with the Trustee or
with the Paying Agent money sufficient to pay the redemption or purchase price
of and accrued interest on all Notes to be redeemed or purchased on that
date.  The Trustee or the Paying Agent
will promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued interest on, all Notes to be
redeemed or purchased.


 


If the Company complies with
the provisions of the preceding paragraph, on and after the redemption or
purchase date, interest will cease to accrue on the Notes or the portions of
Notes called for redemption or purchase. 
If a Note is redeemed or purchased on or after an interest record date
but on or prior to the related interest payment date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Note was
registered at the close of business on such record date.  If any Note called for redemption or purchase
is not so paid upon surrender for redemption or purchase because of the failure
of the Company to comply with the preceding paragraph, interest shall be paid
on the unpaid principal, from the redemption or purchase date until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes and in Section 5.01
hereof.


 


Section 3.06.                         Notes Redeemed
or Purchased in Part.


 


Upon surrender of a Note
that is redeemed or purchased in part, the Company will issue and, upon receipt
of an Authentication Order, the Trustee will authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to the unredeemed
or unpurchased portion of the Note surrendered (or appropriate adjustment to
the amount and beneficial interest in the Global Note will be made).


 


Section 3.07.                         Optional
Redemption.


 


(a)                                  Except as set
forth in clause (b) of this Section 3.07, the Company shall not have
the option to redeem the Notes prior to [                ]
[    ], [        ](1).  On or after such date, the Company may redeem
all or a portion of the Notes at the redemption prices (expressed as 


 






(1) Insert second year after
the calendar year during which the Mandatory Redemption Date occurs.


 


48

















 


percentages of principal amount) set forth
below plus accrued and unpaid interest to the applicable redemption date, if
redeemed during the twelve month period beginning on [                ]
[    ] of the years indicated below, subject to
the rights of Holders on the relevant record date to receive interest on the
relevant interest payment date:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [         ](2)

  	
   

  	
  104.500

  	
  %

  
	
  [         ](3)

  	
   

  	
  104.500

  	
  %

  
	
  [         ](4)

  	
   

  	
  102.250

  	
  %

  
	
  [         ](5) and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)                                 At any time
prior to [                ]
[    ], [        ](6),
the Company may redeem the Notes in whole or in part, at a redemption price
equal to the sum of: (1) the principal amount thereof, plus (2) accrued
and unpaid interest, if any, to the redemption date, plus (3) the
Applicable Premium at the redemption date. 
“Applicable Premium” means, with respect
to a Note at any time, the excess, if any, of (A) the present value at
such time of (i) the redemption price of such Note on [                ]
[    ], [        ](7) (such
redemption price being set forth in the table appearing in Section 3.07(a) above)
plus (ii) any required interest payments (excluding accrued and unpaid
interest to such redemption date) due on such Note through[                ]
[    ], [        ](8),
computed using a discount rate equal to the Treasury Rate plus 50 basis points,
over (B) the principal amount of such Note.


 


(c)                                  Any redemption
pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.  Funds
payable in respect of the redemption price to be paid upon the redemption of
any Notes held by a Holder shall include such Holder’s Pro Rata Amount of the
amounts in the Escrow Account, with respect to such Holder’s Notes that are to
be redeemed.


 


Section 3.08.                         Repurchase at
Option of Holder Upon a Fundamental Change.


 


(a)                                  If there shall
occur a Fundamental Change at any time prior to the maturity of the Notes, then
each Holder shall have the right, at such Holder’s option, to require the
Company to repurchase all of such Holder’s Notes, or any portion thereof that
is a multiple of $1,000 principal amount, for cash on a date designated by the
Company (the “Fundamental Change Repurchase Date”)
that is not less than twenty (20) nor more than thirty (30) days after the date



 






(2) Insert second year after
the calendar year during which the Mandatory Redemption Date occurs.


 


(3) Insert third year after
the calendar year during which the Mandatory Redemption Date occurs.


 


(4) Insert fourth year after
the calendar year during which the Mandatory Redemption Date occurs.


 


(5) Insert sixth year after
the calendar year during which the Mandatory Redemption Date occurs.


 


(6) Insert second year after
the calendar year during which the Mandatory Redemption Date occurs.


 


(7) Insert second year after
the calendar year during which the Mandatory Redemption Date occurs.


 


(8) Insert second year after
the calendar year during which the Mandatory Redemption Date occurs.


 


49

















 


of the Fundamental Change Notice (as defined
in Section 3.08(b)) for such Fundamental Change at a repurchase price
equal to 101% of the aggregate principal amount of the Notes to be repurchased,
plus accrued and unpaid interest up to, but excluding, the Fundamental Change
Repurchase Date.  Notwithstanding the
foregoing, if a Fundamental Change Repurchase Date falls after an interest
payment record date but on or prior to the corresponding interest payment date,
the Company will pay the full amount of accrued and unpaid interest on such
interest payment date to the Holder of record at the close of business on the
corresponding record date. 
Notwithstanding the foregoing, no Notes may be surrendered for
repurchase pursuant to this Section 3.08 in connection with a merger,
consolidation or other transaction effected solely for the purpose of changing
the Company’s jurisdiction of incorporation to any other state within the
United States.


 


(b)                                 Within fifteen
(15) Business Days after the occurrence of a Fundamental Change, the Company,
or at its written request (which must be received by the Trustee at least five (5) Business
Days prior to the date the Trustee is requested to give notice as described
below, unless the Trustee shall agree in writing to a shorter period), the
Trustee, in the name of and at the expense of the Company, shall mail or cause
to be mailed to all Holders of record on the date of the Fundamental Change a
notice (the “Fundamental Change Notice”) of
the occurrence of such Fundamental Change and of the repurchase right at the
option of the Holders arising as a result thereof.  If the Company shall give such notice, the
Company shall also deliver a copy of the Fundamental Change Notice to the
Trustee at such time as it is mailed to Holders.


 


Each Fundamental Change
Notice shall specify the circumstances constituting the Fundamental Change, the
Fundamental Change Repurchase Date, the price at which the Company shall be
obligated to repurchase Notes, that the Holder must exercise the repurchase
right on or prior to the close of business on the Fundamental Change Repurchase
Date (the “Fundamental Change Expiration Time”),
that the Holder shall have the right to withdraw any Notes surrendered prior to
the Fundamental Change Expiration Time, a description of the procedure that a
Holder must follow to exercise such repurchase right and to withdraw any
surrendered Notes, the place or places where the Holder is to surrender such
Holder’s Notes, the amount of interest accrued and unpaid on each Note to the
Fundamental Change Repurchase Date and the CUSIP number or numbers of the Notes
(if then generally in use).


 


No failure of the Company to
give the foregoing notices and no defect therein shall limit the Holders’
repurchase rights or affect the validity of the proceedings for the repurchase
of the Notes pursuant to this Section 3.08.


 


(c)                                 Repurchases of
Notes under this Section 3.08 shall be made, at the option of the Holder
thereof, upon:


 


(i)                                     delivery to the Trustee at
the Corporate Trust Office of the Trustee (or other Paying Agent appointed by
the Company) by a Holder of a duly completed and executed notice (the “Option of Holder to Elect Repurchase”) in the form set forth
on the reverse of the Note prior to the Fundamental Change Expiration Time; and


 


(ii)                                  book-entry transfer or
delivery of the Notes, together with necessary endorsements, to the Trustee (or
other Paying Agent appointed by the Company) at any 


 


50

















 


time simultaneous to or after delivery of the Option of Holder to Elect
Repurchase (together with all necessary endorsements) at the Corporate Trust
Office of the Trustee (or other Paying Agent appointed by the Company) in The
City of New York, Borough of Manhattan, such delivery being a condition to
receipt by the Holder of the repurchase price therefore; provided that such
repurchase price shall be so paid pursuant to this Section 3.08 only if
the Note so delivered to the Trustee (or other Paying Agent appointed by the
Company) shall conform in all respects to the description thereof in the
related Option of Holder to Elect Repurchase.


 


The Company shall purchase
from the Holder thereof, pursuant to this Section 3.08, a portion of a
Note, if the principal amount of such portion is $1,000 or a whole multiple of
$1,000.  Provisions of this Indenture
that apply to the purchase of all of a Note also apply to the purchase of such
portion of such Note.


 


Upon presentation of any
Note repurchased in part only, the Company shall execute and, upon the Company’s
written direction to the Trustee, the Trustee shall authenticate and make
available for delivery to the Holder thereof, at the expense of the Company, a
new Note or Notes, of authorized denominations, in aggregate principal amount
equal to the portion of the Notes presented that was not repurchased.


 


Notwithstanding anything
herein to the contrary, any Holder delivering to the Trustee (or other Paying
Agent appointed by the Company) the Option of Holder to Elect Repurchase
contemplated by this Section 3.08 shall have the right to withdraw such
Option of Holder to Elect Repurchase at any time prior to the Fundamental
Change Expiration Time by delivery of a written notice of withdrawal to the
Trustee (or other Paying Agent appointed by the Company) in accordance with Section 3.08(d) below.


 


The Trustee (or other Paying
Agent appointed by the Company) shall promptly notify the Company of the
receipt by it of any Option of Holder to Elect Repurchase or written notice of
withdrawal thereof.


 


For a Note, other than a
Global Note, to be so repurchased at the option of the Holder, the Company must
receive at the office or agency of the Company maintained for that purpose or,
at the option of such Holder, the Corporate Trust Office in The City of New
York, Borough of Manhattan, such Note with the form entitled “Option of Holder
to Elect Repurchase” on the reverse thereof duly completed, together with such
Notes duly endorsed for transfer, on or before the Fundamental Change
Expiration Time.  All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Note
for repurchase shall be determined by the Company, whose determination shall be
final and binding absent manifest error.


 


(d)                                 An Option of
Holder to Elect Repurchase may be withdrawn by means of a written notice of
withdrawal delivered to the Corporate Trust Office of the Trustee (or other
Paying Agent appointed by the Company) in accordance with the Option of Holder
to Elect Repurchase at any time prior to the Fundamental Change Expiration
Time, specifying:


 


(i)                                     the principal amount of the
Note with respect to which such notice of withdrawal is being submitted;


 


51

















 


(ii)                                  the certificate number, if
any of the Note in respect of which such notice of withdrawal is being
submitted, or the appropriate Depositary information if the Note in respect of
which notice of withdrawal is being submitted is represented by a Global Note;
and


 


(iii)                               the principal amount, if
any, of such Note that remains subject to the original Option of Holder to
Elect Repurchase.


 


(e)                                  The Company
shall deposit, or cause to be deposited, with the Trustee or with one or more
Paying Agents (or, if the Company is acting as its own Paying Agent, set aside,
segregate and hold in trust as provided in Section 2.04 hereof) an amount
of money sufficient to repurchase on the Business Day immediately preceding the
Fundamental Change Repurchase Date all the Notes to be repurchased on such date
at the appropriate repurchase price, together with accrued and unpaid interest
up to, but excluding, the Fundamental Change Repurchase Date; provided that if such payment is made on the Fundamental
Change Repurchase Date it must be received by the Trustee or Paying Agent, as
the case may be, by 10:00 a.m. New York City time, on such date.  Payment for Notes surrendered for repurchase
(and not withdrawn) prior to the Fundamental Change Expiration Time will be
made promptly (but in no event more than five (5) Business Days) following
the later of (x) the Business Day immediately following the Fundamental
Change Repurchase Date, and (y) the time of book-entry transfer or
delivery of the Note surrendered for repurchase, by (i) mailing checks for
the amount payable to the Holders of such Notes entitled thereto as they shall
appear in the register of Holders or (ii) on any Global Note by wire
transfer of immediately available funds to the account of the Depositary or its
nominee.  Funds payable in respect of the
purchase price to be paid upon any such purchase of any Notes held by a Holder
shall include such Holder’s Pro Rata Amount of the amounts in the Escrow
Account, with respect to such Holder’s Notes that are to be so purchased.


 


If on the Business Day
immediately following the Fundamental Change Repurchase Date the Trustee or
other Paying Agent appointed by the Company, or the Company if the Company is
acting as the Paying Agent, holds money sufficient to repurchase all of the
Notes or portions thereof that are to be purchased as of the Fundamental Change
Repurchase Date, then, on and after such date, (i) the Notes will cease to
be outstanding, (ii) interest on the Notes will cease to accrue, and (iii) all
other rights of the Holders of such Notes will terminate, other than the right
to receive the repurchase price upon delivery of the Notes, in each instance
whether or not book-entry transfer of the Notes has been made or the Notes have
been delivered to the Trustee or Paying Agent.


 


(f)                                    The Company
will comply with the requirements of Rule 13e-4, Rule 14e-1 and any
other tender offer rules under the Exchange Act to the extent
applicable.  To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of this Indenture governing an offer to purchase upon a Fundamental Change, the
Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under the provisions of
this Indenture by virtue of such compliance.


 


(g)                                 Notwithstanding
this Section 3.08, no Notes may be repurchased by the Company at the
option of the Holders upon a Fundamental Change if the principal amount of the
Notes has been accelerated, and such acceleration has not been rescinded, on or
prior to such date.


 


52
















 


Section 3.09.                         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 and to all holders of other senior secured Indebtedness that is pari passu 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 amount of Notes
and such other pari passu Indebtedness that may
be purchased out of the Excess Proceeds (an “Asset Sale
Offer”), it shall follow the procedures specified below.


 


The Asset Sale Offer shall
remain open for a period of twenty (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 (3) Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall purchase the aggregate
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 Asset
Sale Offer.  Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.  Funds payable in respect of the purchase
price to be paid upon any such purchase of any Notes held by a Holder shall
include such Holder’s Pro Rata Amount of the amounts in the Escrow Account,
with respect to such Holder’s Notes that are to be so purchased.


 


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 Asset Sale Offer.


 


Upon the commencement of an
Asset Sale 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
Asset Sale Offer.  The Asset Sale Offer
shall be made to all Holders.  The
notice, which shall govern the terms of the Asset Sale Offer, shall state:


 


(1)                                 that the Asset
Sale Offer is being made pursuant to this Section 3.09 and Section 5.10
hereof and the length of time the Asset Sale Offer shall remain open;


 


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


 


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


 


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


 


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


 


53

















 


(6)                                 that Holders
electing to have a Note purchased pursuant to any Asset Sale Offer shall be
required to surrender the Note, with the form entitled “Option of Holder to
Elect Repurchase” 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;


 


(7)                                 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;


 


(8)                                 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


 


(9)                                 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 Asset Sale Offer, or if less
than the Offer Amount has been tendered, all Notes tendered, and shall deliver
to the Trustee an Officer’s Certificate stating that such Notes or portions
thereof were accepted for payment by the Company in accordance with the terms
of this Section 3.09.  If the
aggregate amount of Notes and other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such other pari passu 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 (3) 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, at the expense of the Company, 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 Asset Sale Offer on the
Purchase Date.


 


The Company will comply with
the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent those laws and
regulations are applicable in connection with each repurchase of Notes pursuant
to an Asset Sale Offer.  To the extent
that the provisions of any securities laws or regulations conflict with the
Asset Sale Offer provisions of this Indenture, the Company will comply with the
applicable securities laws


 


54

















 


and
regulations and will not be deemed to have breached its obligations under the
Asset Sale Offer provisions of this Indenture by virtue of such compliance.


 


ARTICLE 4.

[RESERVED]


 


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 and the Paying Agent is not prohibited from paying such money
to the Holders on such date pursuant to the terms of this Indenture.


 


The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Code) 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 Code) 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.


 


55

















 


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 or cause the Trustee to furnish to the Holders at the Company’s
expense 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 financial statements and financial information that would
be required to be filed with the SEC on Forms 10-Q and 10-K if the Company were
required to file such reports (when and as if filed).  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) all current reports that would be
required to be filed with the SEC in current reports on Form 8-K if the
Company were required to file such reports; 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, if at any time the Company is not required to
file with the SEC the reports required in this Section 5.03, the Company
will furnish to Holders and to securities analysts and prospective investors of
the Notes, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.


 


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 ninety (90) days after the end of each
fiscal year, an Officer’s Certificate, signed by 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
Officer 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 the Note Documents, and further stating, as to the 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 the Note Documents and is not in default in the
performance or observance of any of the terms, provisions and conditions of the
Note 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, premium, if any, or interest, 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


 


56

















 


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 this 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 Default or Event of Default,
an Officer’s Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.


 


Section 5.05.                         Taxes.


 


The Company and the
Guarantors shall pay, and shall cause each of their 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.


 


Section 5.06.                         Stay, Extension
and Usury Laws.


 


The Company and each of the
Guarantors covenant (to the extent that they may lawfully do so) that they
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 they may lawfully do so) hereby expressly waive
all benefit or advantage of any such law, and covenant that they 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.                         Limitation on
Restricted Payments.


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or
indirectly:  (i) declare or pay any
dividend or make any other payment or distribution on account of the Company’s
or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation
involving the Company or its Restricted Subsidiaries) or to the direct or
indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity
Interests in their capacity as such (other than dividends or distributions
payable in Equity Interests (other than Disqualified Stock) of the Company or
dividends, payments or distributions payable to the Company or a Guarantor, or
payable by a Restricted Subsidiary that is not a Guarantor to any Restricted
Subsidiary); (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 its
Restricted Subsidiaries (other than any such Equity Interests owned by the
Company or any


 


57

















 


Guarantor);
(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 Restricted Subsidiaries that is contractually subordinated to the Notes
or any Note Guarantee (excluding any intercompany Indebtedness between or among
the Company and any of the Guarantors), except a payment of interest or
principal at the Stated Maturity thereof (for purposes of clarity, the Existing
Notes will not be deemed to be contractually subordinated to the Notes); 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”), unless, at the time of and after
giving effect to such Restricted Payment:


 


(i)                                     no Default or
Event of Default has occurred and is continuing or would occur as a consequence
of such Restricted Payment;


 


(ii)                                  the Company
would, at the time of such Restricted Payment and after giving pro forma effect
thereto as if such Restricted Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Consolidated Coverage Ratio set forth in Section 5.09;
and


 


(iii)                               such Restricted
Payment, together with the aggregate amount of all other Restricted Payments
made by the Company and its Restricted Subsidiaries since the Issue Date
(excluding Restricted Payments permitted by clauses (ii) through (viii) of
the following paragraph), is equal to or less than the sum, without
duplication, of: (A) 50% of the Consolidated Net Income of the Company for
the period (taken as one accounting period) from the beginning of the first
fiscal quarter commencing prior to the Issue Date to the end of the Company’s
most recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit); plus (B) 100%
of (1)(a) the aggregate net cash proceeds and (b) the Fair Market Value of
(x) marketable securities (other than marketable securities of the Company
or an Affiliate of the Company), (y) Capital Stock of a Person (other than
the Company or an Affiliate of the Company) engaged primarily in any Permitted
Business and (z) other assets used or useful in any Permitted Business, in
each case received by the Company since the Issue Date as a contribution to its
common equity capital (other than from its Subsidiaries) or from the issue or
sale of Equity Interests of the Company (other than Disqualified Stock) or from
the issue or sale of convertible or exchangeable Disqualified Stock or
convertible or exchangeable debt securities of the Company that have been
converted into or exchanged for such Equity Interests (in each case other than
Equity Interests (or Disqualified Stock or debt securities) sold or issued to a
Subsidiary of the Company), (2) with respect to Indebtedness that is
incurred on or after the Mandatory Redemption Date, the amount by which such
Indebtedness of the Company or any of its Restricted Subsidiaries is reduced on
the Company’s consolidated balance sheet upon the conversion or exchange after
the Issue Date of any such Indebtedness into or for Equity Interests of the
Company (other than Disqualified Stock), and (3) the aggregate net cash
proceeds, if any, received by the Company or any of its Restricted Subsidiaries
upon any conversion or exchange described in clause (1) or (2) above;
plus (C) with respect to Restricted Investments made by the Company and
its Restricted Subsidiaries after the Mandatory Redemption Date pursuant to,
and that when made reduced the aggregate amount of Restricted Payments
available under, this paragraph (iii), an amount equal to the sum, without
duplication, of (1) the net reduction in such Restricted Investments in
any Person resulting from (i) repayments of loans or advances, or other


 


58

















 


transfers
of assets, in each case to the Company or any Restricted Subsidiary, (ii) other
repurchases, repayments or redemptions of such Restricted Investments, (iii) the
sale of any such Restricted Investment to a purchaser other than the Company or
a Subsidiary of the Company or (iv) the release of any Guarantee (except
to the extent any amounts are paid under such Guarantee) that constituted a
Restricted Investment plus (2) with respect to any Unrestricted Subsidiary
designated as such after the Mandatory Redemption Date is redesignated as a
Restricted Subsidiary after the Mandatory Redemption Date, the lesser of (x) the
Fair Market Value of the Company’s Investment in such Subsidiary held by the
Company or any of its Restricted Subsidiaries at the time of such redesignation
and (y) the amount of the Restricted Investments made by the Company and
its Restricted Subsidiaries after the Mandatory Redemption Date pursuant to,
and that when made reduced the aggregate amount of Restricted Payments
available under, this paragraph (iii), that had been made in such redesignated
Subsidiary and were outstanding at the time of its designation as an
Unrestricted Subsidiary; plus (D) 100% of any cash dividends received by
the Company or a Restricted Subsidiary after the Mandatory Redemption Date from
an Unrestricted Subsidiary, to the extent such dividends were not otherwise
included in the Consolidated Net Income of the Company for such period.


 


So long as no Default or
Event of Default shall have occurred and be continuing or would be caused
thereby, the preceding provisions shall not prohibit (i) the making of any
Restricted Payment in exchange for the issuance of, 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 (other than by a Subsidiary of the Company) of common
equity capital to the Company; (ii) the repurchase, redemption, defeasance
or other acquisition or retirement for value of Indebtedness of the Company
that is contractually subordinated to the Notes with the net cash proceeds from
a substantially concurrent incurrence of Permitted Refinancing Indebtedness
(for purposes of clarity, the Existing Notes will not be deemed to be
contractually subordinated to the Notes); (iii) the repurchase of Equity
Interests 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; (iv) the payment of any dividend or other payment or distribution
or distribution by a Restricted Subsidiary of the Company to the holders of its
Equity Interests on a pro rata basis;
(v) the defeasance, repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any Restricted
Subsidiary held by any of the Company’s (or any of its Restricted Subsidiaries’)
current or former directors or employees in connection with the exercise or
vesting of any equity compensation (including, without limitation, stock
options, restricted stock and phantom stock) in order to satisfy the Company’s
or such Restricted Subsidiary’s tax withholding obligation with respect to such
exercise or vesting; (vi) payments to fund the purchase, redemption or
other acquisition for value by the Company of fractional Equity Interests
arising out of stock dividends, splits or combinations, business combinations
or other transactions permitted by this Indenture; (vii) the defeasance,
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary held by any of the
Company’s or any of the Company’s Restricted Subsidiaries’ current or former
directors or employees; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests may not exceed the
sum of (A) $1.0 million, plus (B) the aggregate amount of cash
proceeds received by the Company from the sale of the Company’s Equity
Interests (other than Disqualified Stock) to any such directors or employees
that occurs after the Mandatory Redemption Date; plus (C) the cash
proceeds of key


 


59

















 


man
life insurance policies received by the Company and its Restricted Subsidiaries
after the Mandatory Redemption Date; and (viii) other Restricted Investments in
an aggregate amount at any time outstanding not to exceed $5.0 million.


 


Notwithstanding anything
else in this Section 5.07, (i) no Restricted Investment may be made
in a Restricted Subsidiary that is not a Domestic Restricted Subsidiary, and (ii) no
Investment in an Unrestricted Subsidiary, or in any Restricted Subsidiary that
is not a wholly owned Subsidiary of the Company, may include any FCC License.


 


The amount of all Restricted
Payments (other than cash and Cash Equivalents) 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 Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment.  The Fair Market Value of any Restricted
Payment not in cash or Cash Equivalents shall be determined by the Board of
Directors of the Company whose Board 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 $10.0 million.  Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officer’s
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.                         Limitation on
Dividend and Other Payment Restrictions Affecting Subsidiaries.


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary of the Company to (i) pay
dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness owed to
the Company or any of its Restricted Subsidiaries; (ii) make loans or
advances to the Company or any of its Restricted Subsidiaries; or (iii) sell,
lease or transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries.


 


The preceding restrictions
will not apply to encumbrances or restrictions existing under or by reason of:


 


(1)                                 any encumbrance
or restriction pursuant to an agreement in effect on the date of the issuance
of the Notes;


 


(2)                                 Permitted
Refinancing Indebtedness, provided that the encumbrances and restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness
are no more restrictive than those contained in the agreements governing the
Indebtedness being refinanced;


 


(3)                                 this Indenture,
the Collateral Agreements, the Notes and the Note Guarantees;


 


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


 


60

















 


(5)                                 customary
non-assignment provisions in contracts and licenses entered into in the
ordinary course of business;


 


(6)                                 any agreement
for the sale or other disposition of a Restricted Subsidiary of the Company
that restricts distributions by that Restricted Subsidiary pending the sale or
other disposition;


 


(7)                                 Liens permitted
to be incurred under Section 5.12 hereof that limit the right of the
debtor to dispose of the assets subject to such Liens;


 


(8)                                 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


 


(9)                                 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.                         Limitation on
Incurrence of Additional Indebtedness and Issuance of Preferred Stock.


 


The Company will not, and
will not permit any of its Restricted 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 Indebtedness),
and the Company will not issue any Disqualified Stock and will not permit any
of its Restricted Subsidiaries to issue any shares of preferred stock, except
as expressly provided for below.


 


The provisions of the first
paragraph of this Section 5.09 will not prohibit the incurrence of any of
the following items of Indebtedness:


 


(1)                                 the incurrence
by the Company and 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 (1) (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of the Company thereunder) not to exceed $20.0 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;


 


(2)                                 so long as (A) no
Default has occurred and is continuing and (B) on the date of such
incurrence, and after giving effect thereto on a pro forma basis
(including pro forma application of the net proceeds therefrom), the
Consolidated Coverage Ratio exceeds 2.0 to 1.0, in each case, the incurrence by
the Company of (X) additional unsecured Indebtedness, provided
that such Indebtedness (i) is expressly subordinated, on terms no less
favorable to the Holders as those set forth in Exhibit G hereto, to the
prior payment in full in cash of all Obligations


 


61

















 


with respect to the Notes, and (ii) does
not mature and is not mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, or redeemable at the option of the holder of the Indebtedness, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Notes mature, and (Y) additional unsecured senior Indebtedness
in an aggregate principal amount at any time outstanding not to exceed (i) $250.0
million less (ii) the aggregate at such time of the principal
amount of Indebtedness outstanding under the Notes and the Working Capital
Facility (and of any Permitted Refinancing Indebtedness in respect thereof) and
of any unused commitments available under the Working Capital Facility (or such
Permitted Refinancing Indebtedness, as applicable) (regardless of whether the
Company at such time meets all applicable conditions to use such commitments);
and  provided
further, that prior to the incurrence of any such Indebtedness, the Company
delivers an Officer’s Certificate to the Trustee certifying that the Company
has complied with this clause (2);


 


(3)                                 (i) the
incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes to be issued as part of the redemption price in the Mandatory Redemption
of the Interim Notes, and any Additional Notes issued as interest on the Notes,
and the Guarantees with respect thereto, (ii) the incurrence by the
Company and the Guarantors of Indebtedness represented by the Notes issued
after the Mandatory Redemption Date in exchange for Existing Notes on terms no
less favorable to the Company and the Guarantors than the Exchange Offer and
the Mandatory Redemption, and any Additional Notes issued as interest on the
Notes, and the Guarantees with respect thereto, and (iii) the incurrence
by the Company and the Guarantors of Indebtedness represented by any additional
Existing Notes issued as interest on the Existing Notes in accordance with the
terms of the Existing Notes Indenture, and the guarantees of the Guarantors
with respect thereto;


 


(4)                                 the incurrence
by the Company and its Restricted 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 (4) and clauses (3) and (11) of this
paragraph;


 


(5)                                 the incurrence
of intercompany Indebtedness between or among the Company and any of its
Restricted Subsidiaries; provided, however, that:


 


(A)                             if the Company
or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be
expressly subordinated (with such subordination provided for in a promissory
note evidencing such Indebtedness), to the prior payment in full in cash of all
Obligations with respect to the Notes and the Note Guarantees; and


 


(B)                               any (1) subsequent
issuance or transfer of Equity Interests that results in any such Indebtedness
being held by a Person other than the Company or a Restricted Subsidiary of the
Company, or (2) sale or other transfer of any


 


62
















 


such Indebtedness to a Person that is not
either the Company or a Restricted Subsidiary of the Company, will be deemed,
in each case, to constitute an incurrence of such Indebtedness that was not
permitted by this clause (5);


 


(6)                                 the issuance by
any of the Company’s Restricted Subsidiaries to the Company or to any of its
Restricted 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
Restricted 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 Restricted
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 (6);


 


(7)                                 the incurrence
by the Company of Hedging Obligations in the ordinary course of business;


 


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


 


(9)                                 the incurrence
by the Company or any Restricted Subsidiaries of the Company of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or any
part of the purchase price or cost of design, construction, installation or improvement
of property, plant or equipment used in the business of the Company or any
Restricted Subsidiary of the Company, in an aggregate amount at any time
outstanding not to exceed $10.0 million, provided that the aggregate amount of
Indebtedness outstanding under this clause (9) and clause (13) will not
together exceed $10.0 million at any time;


 


(10)                           the incurrence
by the Company or any of its Restricted 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 (5) Business Days;


 


(11)                           the incurrence
by the Company and its Restricted Subsidiaries of Existing Indebtedness;


 


(12)                           the incurrence
by the Company of Indebtedness to the extent that the net proceeds thereof are
promptly deposited to defease or satisfy and discharge the Notes in accordance
with the provisions of this Indenture; and


 


(13)                           the incurrence
by the Company or any of its Restricted Subsidiaries of any other Indebtedness
not otherwise permitted to be incurred under the terms of this Indenture in an
aggregate amount at any time outstanding not to exceed $5.0


 


63

















 


million, provided that the aggregate amount
of Indebtedness outstanding under this clause (13) and clause (9) will not
together exceed $10.0 million at any time.


 


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


 


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


 


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


 


Section 5.10.                         Limitation on
Asset Sales.


 


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


 


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


 


(2)                                 at least 85% of
the consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash.


 


For purposes of this Section 5.10,
each of the following will be deemed to be cash:


 


(1)                                 any
liabilities, as shown on the Company’s most recent consolidated balance sheet,
of the Company or any Subsidiary (other than contingent liabilities and
Indebtedness that are (x) by their terms subordinated to the Notes or any
Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets
or rights that are the subject of the Asset Sale, which Lien is junior in
priority to the Liens securing 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;


 


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


 


(3)                                 any stock or
assets of the kind referred to in clauses (2) or (4) of the next
paragraph of this covenant.


 


Within 365 days after the
receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable
Restricted 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 permanently reduce commitments with respect thereto;


 


64

















 


(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 (x) a Restricted Subsidiary of
the Company and (y) a Guarantor;


 


(3)                                 to make capital
expenditures in a Permitted Business (other than Equity Interests, Indebtedness
or current assets); or


 


(4)                                 to acquire
other assets (other than Equity Interests or Indebtedness) that are not
classified as current assets under GAAP and that are used or useful in a
Permitted Business.


 


Pending the final
application of any Net Proceeds, the Company may temporarily reduce borrowings
under the Working Capital Facility or otherwise invest the Net Proceeds in any
manner that is not prohibited by this Indenture.


 


Any Net Proceeds from Asset
Sales that are not applied or invested as provided in the second paragraph of
this covenant will constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $5.0 million, the Company will, within five (5) days thereof, make
an Asset Sale Offer to all Holders and all holders of other senior secured
Indebtedness that is pari passu in
right of payment and as to security interests with the Notes with respect to
the assets that are the subject of such Asset Sale 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 amount
of Notes and such other pari passu
Indebtedness that may be purchased out of the Excess Proceeds in accordance
with the procedures set forth in Section 3.09 hereof.  The offer price for the Notes in any Asset
Sale Offer will be equal to 100% of the aggregate principal amount of the
Notes, plus accrued and unpaid interest to the date of purchase, and will be
payable in cash.  If any Excess Proceeds
remain after consummation of an Asset Sale Offer, the Company may use those
Excess Proceeds for any purpose not otherwise prohibited by this
Indenture.  If the aggregate principal
amount of Notes and the amount of other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis.  Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be
reset at zero.


 


Section 5.11.                         Limitation on
Transactions with Affiliates.


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
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 transaction, contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any Affiliate of the
Company or any Restricted Subsidiary of the Company (each, an “Affiliate Transaction”), unless:


 


(1)                                 the Affiliate
Transaction is on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been obtained in a


 


65

















 


comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and


 


(2)                                 the Company
delivers to the Trustee:


 


(A)                             with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $2.5 million (other than an Ordinary
Course Affiliate Transaction), a Board Resolution set forth in an Officer’s
Certificate certifying that such Affiliate Transaction complies with this
covenant and that such Affiliate Transaction has been approved by a majority of
the disinterested members of the Board of Directors of the Company;


 


(B)                               with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $10.0 million (other than an Ordinary
Course Affiliate Transaction), an opinion as to the fairness to the Company or
such Restricted Subsidiary of such Affiliate Transaction from a financial point
of view issued by an accounting, appraisal or investment banking firm of
national standing; and


 


(C)                               with respect to
any Ordinary Course Affiliate Transaction or series of related Ordinary Course
Affiliate Transactions involving aggregate consideration in excess of $10.0
million, a Board Resolution set forth in an Officer’s Certificate certifying
that such Ordinary Course Affiliate Transaction complies with this covenant and
that such Ordinary Course Affiliate Transaction has been approved by a majority
of the disinterested members of the Board of Directors of the Company.


 


The following items will not
be deemed to be Affiliate Transactions and, therefore, will not be subject to
the provisions of the prior paragraph:


 


(1)                                 any employment
agreement, employee benefit plan, officer or director indemnification agreement
or any similar arrangement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and payments pursuant thereto;


 


(2)                                 transactions
exclusively between or among the Company and/or the Guarantors;


 


(3)                                 [reserved];


 


(4)                                 payment of
reasonable directors’ fees to Persons who are not otherwise Affiliates of the
Company or its Restricted Subsidiaries;


 


(5)                                 Restricted
Payments that do not violate the provisions of this Indenture described under Section 5.07
hereof;


 


66

















 


(6)                                 loans or
advances to employees in the ordinary course of business, and in compliance
with applicable law, not to exceed $1.0 million in the aggregate at any one
time outstanding; and


 


(7)                                 any agreement
as in effect on the Original Issue Date or any amendments, renewals or
extensions of any such agreement (so long as such amendments, renewals or
extensions are not less favorable to the Holders).


 


Section 5.12.                         Limitation on
Liens.


 


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


 


Section 5.13.                         Conduct of
Business.


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, engage in any business
other than a Permitted Business.


 


Section 5.14.                         Designation of
Restricted and Unrestricted Subsidiaries.


 


The Board of Directors of
the Company may designate any Restricted Subsidiary of the Company to be an
Unrestricted Subsidiary if (i) that designation would not cause a Default,
(ii) such designation is for a valid business purpose of the Company as
determined by the Board of Directors (such as in connection with the obtaining
of non-recourse financing for implementation of government contracts, or the
leasing of spectrum licenses from the Company and its Restricted Subsidiaries
in joint ventures in particular markets) and (iii) such designated
Subsidiary does not own any FCC License. 
If a Restricted Subsidiary of the Company is designated as an
Unrestricted  Subsidiary, the aggregate
Fair Market Value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Restricted Subsidiary so designated as an
Unrestricted Subsidiary will be deemed to be an Investment made as of the time
of the designation and will reduce the amount available for Restricted Payments
under Section 5.07 hereof or under one or more applicable clauses of the
definition of Permitted Investments, as determined by the Company.  That designation will only be permitted if
the Investment would be permitted at that time and if the Restricted Subsidiary
of the Company otherwise meets the definition of an Unrestricted
Subsidiary.  The Board of Directors of
the Company may redesignate any Unrestricted Subsidiary to be a Restricted
Subsidiary if that redesignation would not cause a Default.  The determination of Fair Market Value for
the foregoing purposes will be made by the Board of Directors of the Company,
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.


 


Any designation of a
Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to
the Trustee by filing with the Trustee a certified copy of a Board Resolution
giving effect to such designation and making the applicable determination of
Fair Market Value, and an Officer’s Certificate certifying that such
designation complies with the preceding conditions and was permitted by Section 5.07
hereof, together with a copy of any fairness opinion or appraisal required by
this Indenture.  If, at any time, any
Unrestricted Subsidiary would fail to meet the


 


67

















 


preceding
requirements as an Unrestricted Subsidiary, it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 5.09 hereof, the Company will be in
default of Section 5.09 hereof.  The
Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary of the Company under this Indenture; provided that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary, and such designation
will only be permitted if (1) such Indebtedness is permitted under Section 5.09
hereof, calculated on a pro forma basis
as if such designation had occurred at the beginning of the four-quarter
reference period, and (2) no Default or Event of Default under this
Indenture would be in existence following such designation.


 


Section 5.15.                         Issuance and
Sale of Capital Stock of Restricted Subsidiaries.


 


The Company will not sell,
and will not permit any of its Restricted Subsidiaries, directly or indirectly,
to issue or sell any Equity Interests of a Restricted Subsidiary of the Company
except:


 


(1)                                 to the Company
or a Guarantor;


 


(2)                                 issuances of
director’s qualifying shares, or sales to foreign nationals of Equity Interests
of Restricted Subsidiaries of the Company (other than Domestic Restricted
Subsidiaries), to the extent required by applicable law;


 


(3)                                 if immediately
after giving effect to such issuance or sale, such Restricted Subsidiary would
no longer constitute a Restricted Subsidiary and any Investment in such Person
remaining after giving effect to such issuance or sale would have been
permitted to be made in accordance with Section 5.07 hereof if made on the
date of such issuance or sale (and any such Investment will be deemed to be an
Investment made on the date of such issuance or sale and will reduce the amount
available for Restricted Payments under Section 5.07 hereof or under one
or more clauses of the definition of Permitted Investments, as determined by
the Company); or


 


(4)                                 issuances or
sales of common stock of a Restricted Subsidiary of the Company, provided that
the Company or such Restricted Subsidiary applies the Net Proceeds, if any, of
any such issuance or sale in accordance with Section 5.10 hereof.


 


Section 5.16.                         Maintenance of
Insurance.


 


The Company will, and will
cause each of its Restricted 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.


 


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The Company and the
Guarantors will maintain adequate insurance policies and will upon written
request provide the Collateral Agent with evidence of such insurance coverage
for public liability, property damage, product liability and business interruption
with respect to their businesses and properties against loss or damage (1) of
the kinds customarily carried or maintained by corporations of established
reputation engaged in similar businesses and (2) as may be required by the
Collateral Agreements.  Upon the request
of the Collateral Agent, the Company and the Guarantors shall furnish to the
Collateral Agent full information as to their property and liability insurance
carriers.  The Collateral Agent, for the
benefit of the Holders, as a class, will be named as an additional insured,
with a waiver of subrogation, on all insurance policies of the Company and the
Guarantors, and the Collateral Agent will be named as loss payee, with thirty
(30) days’ notice of cancellation or material change, on all property and
casualty insurance policies of the Company and the Guarantors.


 


Section 5.17.                         Payments for
Consent.


 


The Company will not, and
will not permit any of its Subsidiaries to, 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 for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of the Note
Documents, unless such consideration is offered to be paid or is paid to all
Holders 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 5.18.                         Additional
Guarantees.


 


If the Company or any of its
Restricted Subsidiaries organize, acquire or otherwise create or invest in
another Person that is or becomes a Domestic Restricted Subsidiary that is not
a Guarantor, then the Company shall cause such Domestic Restricted Subsidiary
that is not a Guarantor to:


 


(1)                                 execute and
deliver to the Trustee a supplemental indenture in form and substance
reasonably satisfactory to the Trustee pursuant to which such Domestic
Restricted Subsidiary shall unconditionally guarantee on a senior secured basis
all of the Company’s obligations under the Notes and this Indenture on the
terms set forth in this Indenture;


 


(2)                                 execute and
deliver to the Collateral Agent, amendments to the Collateral Agreements  and take such other actions as the Collateral
Agent deems reasonably necessary in order to grant to the Collateral Agent, for
the benefit of the Holders, a perfected Lien in the assets, including the
filing of UCC financing statements in such jurisdictions as may be required by
the Collateral Agreements, by law or as may be reasonably requested by the
Collateral Agent;


 


(3)                                 take such
further action and execute and deliver such other documents specified in this
Indenture or otherwise reasonably requested by the Trustee to effectuate the
foregoing; and


 


(4)                                 deliver to the
Trustee an Opinion of Counsel that such supplemental indenture and Note
Guarantee, and amendments to the Collateral Agreements and any other


 


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documents required to be delivered have been
duly authorized, executed and delivered by such Domestic Restricted Subsidiary
and constitute legal, valid, binding and enforceable obligations of such
Domestic Restricted Subsidiary and such other opinions regarding the perfection
of such Liens in the assets of such Domestic Restricted Subsidiary.


 


Thereafter,
such Domestic Restricted Subsidiary shall be a Guarantor for all purposes of
this Indenture.


 


Section 5.19.                         Anti-Layering.


 


The Company will not incur,
and will not permit any Guarantor to incur, any Indebtedness that is
contractually subordinated in right of payment to any other Indebtedness of the
Company or such Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Note Guarantee
on substantially identical terms.


 


Section 5.20.                         Further Assurances
Relating to Collateral.


 


The Company shall, and shall
cause each Guarantor to, at their sole cost and expense, execute and deliver
all such agreements and instruments, in each case reasonably satisfactory in
form and substance to the Trustee, as the Collateral Agent or the Trustee shall
reasonably request to more fully or accurately describe the property included
as Collateral or the obligations intended to be secured by the Collateral
Agreements.  The Company shall, and shall
cause each of its Restricted Subsidiaries to, at their sole cost and expense,
execute, acknowledge and deliver all such security documents, certificates,
notices and other documents, in each case reasonably satisfactory in form and
substance to the Trustee, and (subject to the provisions of the Intercreditor
Agreement) take such other actions as shall be reasonably required, or as the
Collateral Agent or the Trustee shall reasonably request to create, perfect,
protect, continue the perfection of, assure or enforce the Note Liens and
benefits intended to be conferred, in each case as contemplated by the Note
Documents for the benefit of the Holders.


 


Section 5.21.                         Real Estate
Mortgages and Filings.


 


With respect to any fee
interest in any land and the related improvements (including fixtures) thereon
(individually and collectively, the “Premises”) (i) owned
by the Company or a Restricted Subsidiary of the Company on the Exchange Offer
Completion Date and that has a Fair Market Value on such date of greater than
$1.0 million or (ii) acquired by the Company or a Restricted Subsidiary of
the Company after the Exchange Offer Completion Date for a purchase price of
greater than $1.0 million, within ninety (90) days of the Exchange Offer
Completion Date in the case of clause (i) above and within ninety (90)
days of the acquisition thereof in the case of clause (ii) above:


 


(1)                                 the Company
shall deliver to the Collateral Agent, as mortgagee, fully-executed
counterparts of mortgages, each dated as of the Original Issue Date or the date
of acquisition of such property, as the case may be, duly executed by the
Company or the applicable Restricted Subsidiary, together with evidence of the
completion (or satisfactory arrangements for the completion), of all recordings
and filings of


 


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such mortgage as may be necessary to create a
valid, perfected Lien, subject to Permitted Liens, against the properties
purported to be covered thereby;


 


(2)                                 the Company
shall deliver to the Collateral Agent, mortgagee’s title insurance policies in
favor of the Collateral Agent, as mortgagee for the ratable benefit of the
Collateral Agent, the Trustee and the Holders in an amount equal to 100% of the
Fair Market Value of the Premises purported to be covered by the related
mortgage, insuring that title to such property is marketable and that the
interests created by the mortgage constitute valid Liens thereon free and clear
of all Liens, defects and encumbrances other than Permitted Liens;


 


(3)                                 the Company
shall deliver to the Collateral Agent, with respect to each of the covered
Premises, the most recent survey of such Premises, together with either (i) an
updated survey certification in favor of the Trustee and the Collateral Agent
from the applicable surveyor stating that, based on a visual inspection of the
property and the knowledge of the surveyor, there has been no change in the
facts depicted in the survey or (ii) an affidavit and/or indemnity from
the Company or the applicable Restricted Subsidiary, as the case may be,
stating that to its knowledge there has been no change in the facts depicted in
the survey, other than, in each case, changes that do not materially adversely
affect the use by the Company or such Restricted Subsidiary, as applicable, of
such Premises for the Company or such Restricted Subsidiary’s business as so
conducted, or intended to be conducted, at such Premises at the time of
delivery thereof and in each case, in form sufficient for the title insurer
issuing the title policy to remove the standard survey exception from such
policy and issue a survey endorsement to such policy; and


 


(4)                                 the Company
shall cause to be delivered to the Collateral Agent, an Opinion of Counsel that
such mortgage and any other documents required to be delivered have been duly
authorized, executed and delivered by the Company or such Restricted
Subsidiary, as applicable, and constitute legal, valid, binding and enforceable
obligations of the Company or such Restricted Subsidiary, as applicable, and
such other opinions regarding the perfection of such Liens created by such
mortgage in such Premises as the Collateral Agent shall reasonably request.


 


Section 5.22.                         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 (1) 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 (2) 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 Company’s Board of Directors shall determine that the
preservation


 


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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.


 


Section 5.23.                         Formation of
New License Subsidiary; Transfer of FCC Licenses.


 


The Company [Delete the following bracketed text if the New License Subsidiary has
been formed prior to the date of this Indenture.][shall form, or cause to be
formed, the New License Subsidiary and] to designate the New License
Subsidiary as a Restricted Subsidiary under the Interim Indenture (and under
this Indenture from and after the Issue Date). 
The Company shall promptly make application to the FCC for any required
regulatory or other approvals to permit the Company and any other applicable
Subsidiary to transfer to the New License Subsidiary all of the FCC Licenses,
and shall use its commercially reasonable efforts to obtain any such required
approvals as soon as practicable.  The
Company shall, or shall cause, all of the FCC Licenses to be transferred to the
New License Subsidiary promptly upon obtaining any such required
approvals.  The Company and the
Guarantors shall not permit any Existing Note Obligations to be secured,
directly or indirectly, by a Lien on any assets or rights of, or any Equity
Interests in, the New License Subsidiary. The Company and the Guarantors shall
not permit the New License Subsidiary to incur, maintain or in any way be
obligated for any Existing Note Obligations except such Existing Note
Obligations as are subordinated to the Note Obligations as set forth in the
Existing Notes Indenture as modified and amended in the Exchange Offer.


 


ARTICLE 6.

SUCCESSORS


 


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


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly:


 


(1)                                 consolidate or
merge with or into another Person (whether or not the Company or such
Restricted Subsidiary is the surviving corporation); or


 


(2)                                 sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the properties
or assets of the Company and its Restricted Subsidiaries taken as a whole, in
one or more related transactions, to another Person, unless:


 


(A)                             if the Company
or such Restricted Subsidiary is a party to such transaction, either (i) the
Company or such Restricted Subsidiary is the surviving corporation or (ii) the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, conveyance or other
disposition has been made is a corporation organized or existing under the laws
of the United States, any state of the United States or the District of
Columbia;


 


(B)                               if the Company
or such Restricted Subsidiary is a party to such transaction, the Person formed
by or surviving any such consolidation or merger (if other than the Company or
such Restricted Subsidiary) or the


 


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Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the
obligations of the Company or such Restricted Subsidiary under the Notes and
this Indenture pursuant to agreements reasonably satisfactory to the Trustee;


 


(C)                                immediately
after such transaction, no Default or Event of Default exists;


 


(D)                               except to the
extent waived by the FCC or as would not have a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its Restricted Subsidiaries, taken as a whole, the
Company and its Restricted Subsidiaries have obtained all required FCC consents
under the Communications Act in relation to such sale, assignment, transfer,
conveyance, or other disposition; and


 


(E)                                 the Company or
the Person formed by or surviving any such consolidation or merger or to which
such sale, assignment, transfer, conveyance or other disposition is made (if
other than the Company), will have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction.


 


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


 


This Section 6.01 will
not apply to:


 


(1)                                  a merger of the
Company or a Restricted Subsidiary of the Company with an Affiliate solely for
the purpose of reincorporating the Company in another jurisdiction; or


 


(2)                                  any
consolidation or merger, or any sale, assignment, transfer, conveyance, lease
or other disposition of assets between or among the Company and its Restricted
Subsidiaries that are Guarantors.


 


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 Restricted Subsidiaries in accordance with Section 6.01 hereof, the
successor corporation formed by such consolidation or into or with which the
Company or such Restricted 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, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the “Company” or to
a “Restricted Subsidiary” or “Guarantor” shall refer instead to the successor
corporation and not to the Company or such Restricted Subsidiary or Guarantor,
as


 


73

















 


the
case may be), and may exercise every right and power of the Company or such
Restricted Subsidiary or Guarantor under this Indenture with the same effect as
if such successor Person had been named as the Company or a Restricted
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.


 


ARTICLE 7.


DEFAULTS
AND REMEDIES


 


Section 7.01.                         Events of
Default.


 


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


 


(1)                                  default for
thirty (30) days in the payment when due of interest on the Notes;


 


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


 


(3)                                  failure by the
Company or any of its Restricted Subsidiaries to comply with the provisions of
Sections 3.08, 5.07, 5.09, 5.10 or 6.01 hereof;


 


(4)                                  failure by the
Company or any of its Restricted Subsidiaries for sixty (60) days after notice
to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the then outstanding Notes (including Additional Notes, if
any) voting as a single class to comply with any of the other agreements in
this Indenture or any Collateral Agreement; provided, however, that with respect to a failure by the Company to
comply with Section 5.03 hereof, such period shall be ninety (90) days,
rather than sixty (60) days;


 


(5)                                  default 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 Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the date of this
Indenture, if that default:


 


(A)                              is caused by a
failure to pay principal of, or interest or premium, if any, on, such
Indebtedness when due, or if applicable, prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a “Payment Default”); or


 


(B)                                results in the
acceleration of such Indebtedness prior to its express maturity,


 


and, in each case, the
principal amount of any such Indebtedness, together with the principal amount
of any other such Indebtedness under which there has been a Payment


 


74

















 


Default or the maturity of
which has been so accelerated, aggregates $10.0 million or more;


 


(6)                                  failure by the
Company or any of its Restricted Subsidiaries to pay final judgments entered by
a court or courts of competent jurisdiction aggregating in excess of $10.0
million, which judgments are not paid, discharged or stayed for a period of
sixty (60) days;


 


(7)                                  (i) any
revocation, cancellation or relinquishment, which action is not subject to
further appeal, of the Company’s or its Restricted Subsidiaries’ (a) 24
GHz FCC Licenses covering a population equal to or greater than 5.0% of the
population covered by all of the Company’s and its Restricted Subsidiaries’ 24
GHz FCC Licenses or (b) 39 GHz licenses covering a population equal to or
greater than 33 1/3% of the population covered by all of the Company’s and its
Restricted Subsidiaries’ 39 GHz licenses, with the population in each case
determined by the most recent official census conducted by the U.S. government
and (ii) such FCC License revocation, cancellation or relinquishment,
individually or in the aggregate, has a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its Restricted Subsidiaries taken as a whole;


 


(8)                                  the Company or
any of its Restricted Subsidiaries, pursuant to or within the meaning of the
Bankruptcy Code:


 


(A)                              commences a
voluntary case;


 


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


 


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


 


(D)                               makes a general
assignment for the benefit of its creditors; or


 


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


 


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


 


(A)                              is for relief
against the Company or any of its Restricted Subsidiaries in an involuntary
case;


 


(B)                                appoints a
custodian, receiver, trustee, assignee, liquidator or similar official under
any Bankruptcy Code of the Company or any of its Restricted Subsidiaries, or
for all or substantially all of the property of the Company or any of its
Restricted Subsidiaries; or


 


75

















 


(C)                                orders the
liquidation of the Company or any of its Restricted Subsidiaries;


 


(10)                            any Collateral
Agreement at any time for any reason shall cease to be in full force and effect
in all material respects, or any Collateral Agreement ceases to give the
Collateral Agent the Liens (other than Liens securing Collateral, individually
or in the aggregate, having a Fair Market Value of less than $500,000), rights,
powers and privileges purported to be created thereby, superior to and prior to
the rights of all third Persons other than the holders of Permitted Senior
Liens and subject to no other Liens except as expressly permitted by any
Collateral Agreement or this Indenture;


 


(11)                            the Company or
any of its Restricted Subsidiaries contest in any manner the effectiveness,
validity, binding nature or enforceability of any Collateral Agreement; or


 


(12)                            the Note
Guarantee of any Guarantor ceases to be in full force and effect or is declared
to be null and void and unenforceable or is found to be invalid or any
Guarantor denies its liability under its Note Guarantee (other than by reason
of release of a Guarantor in accordance with the terms of this Indenture).


 


Section 7.02.                         Acceleration.


 


In the case of an Event of
Default specified in clause (8) or (9) of Section 7.01 hereof,
with respect to the Company or any Restricted Subsidiary of the Company, all
outstanding Notes will become due and payable immediately without further
action or notice.  If any other Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. 
If the Notes become due and payable at any time prior to maturity, the
amount that shall become due and payable shall be the aggregate principal
amount of such Notes then outstanding.


 


Holders of a majority in
aggregate principal amount of the then outstanding Notes by written notice to
the Trustee may, on behalf of the Holders of all of the Notes, rescind an
acceleration or waive any existing Default or Event of Default and its
consequences under this Indenture 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, if any, that has become due solely because of
the acceleration) have been cured or waived. 
The Trustee may withhold from the Holders of the Notes then outstanding
notice of any continuing Default or Event of Default under this Indenture if it
determines that withholding notice is in their interest, except a Default or
Event of Default under this Indenture relating to the payment of principal,
interest or premium, if any.  Subject to
the provisions of this Indenture relating to the duties of the Trustee,
including, without limitation, Section 8.01 hereof, in case an Event of
Default occurs and is continuing, the Trustee will be under no obligation to
exercise any of the rights or powers under this Indenture at the request or
direction of any Holders unless such Holders have offered to the Trustee
reasonable indemnity or security against any loss, liability or expense.


 


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If an Event of Default
occurs by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company or the Guarantors with the intention of avoiding any
prohibition on redemption, or any premium payable upon redemption of the Notes
pursuant to the terms of Section 3.07, or the requirement to pay 101% of
the principal amount of the Notes upon a Fundamental Change pursuant to the
terms of Section 3.08, then, upon acceleration of the Notes, any excess of
the applicable redemption or repurchase price above the stated principal amount
shall also become due and immediately payable, to the extent permitted by law.


 


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, the Note Guarantees
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.


 


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 Agreements that the Trustee
determines may be unduly prejudicial to the rights of other Holders or that may
involve the Trustee in personal liability or expense.


 


Section 7.06.                         Limitation on
Suits.


 


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


 


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(1)                                  such Holder has
previously given the Trustee written notice that an Event of Default is
continuing;


 


(2)                                  Holders of at
least 25% in aggregate principal amount of the then outstanding Notes
(including Additional Notes, if any) have requested in writing that the Trustee
pursue the remedy;


 


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


 


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


 


(5)                                  during such
sixty (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 this Indenture upon any
property subject to such Lien.


 


Section 7.08.                         Collection Suit
by Trustee.


 


If an Event of Default
specified in Section 7.01(1) or (2) 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 Guarantors 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 allowed in any judicial
proceedings relative to the Company (or


 


78

















 


any
other obligor upon the Notes and the Note Guarantees, including the
Guarantors), their creditors or their 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 (including any predecessor Trustee), the Collateral Agent, the Paying
Agent and the Registrar, their respective 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 (including any
predecessor Trustee) or the Collateral Agent, the Paying Agent or the
Registrar, as the case may be, and the costs and expenses of collection;


 


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


 


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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 7.11 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 Agreements 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 and the Collateral Agreements, and
the Trustee need perform only those duties that are specifically set forth in
this Indenture and the Collateral Agreements, and no others, and no implied
covenants or obligations shall be read into this Indenture and the Collateral Agreements
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 and the Collateral
Agreements.  However, the Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture and the Collateral Agreements.


 


(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;


 


(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.


 


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(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 or
the Collateral Agreements 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 Officer’s 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 Officer’s 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.


 


(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


 


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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 Officer’s Certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officer’s Certificate may be signed
by any Person authorized to sign an Officer’s 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 ninety
(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, the Collateral Agreements 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,
the Collateral Agreements 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 a notice of the Default or Event of Default within ninety
(90) 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.


 


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


 


Within sixty (60) days after
each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail
to the Holders 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).


 


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A copy of each report at the
time of its mailing to the Holders 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, including for any Agent capacity in which it acts.  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, including in any Agent capacity in which it acts,
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 gross 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 8.07, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee,
except that 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(9) or
(10) 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 Code.


 


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


 


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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 8.08.


 


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:


 


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


 


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


 


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


 


(4)                                  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.


 


If a successor Trustee is
appointed and does not take office within thirty (30) days after the retiring
Trustee resigns, the retiring Trustee may appoint a successor Trustee at any
time prior to the date on which a successor Trustee takes office.  If a successor Trustee does not take office
within sixty (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 hereof, such Holder may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.  
Within one year after the successor Trustee appointed by the Company or
a court pursuant to this Section 8.08 takes office, the Holders of a
majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace such 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 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.


 


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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 8.


 


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.


 


Section 8.12.                         Powers of
Trustee Subject to Communications Act.


 


All powers of the Trustee
under this Indenture, in its capacity as trustee of this Indenture, are subject
to applicable provisions of the Communications Act, including, without
limitation, the requirements of prior approval for de facto or de jure transfer
of control or assignment of Title III licenses, to the extent that such
requirements are applicable.


 


Section 8.13.                         Trustee as
Paying Agent, Registrar and Collateral Agent.


 


References to the Trustee in
Sections 8.01, 8.02, 8.03, 8.04, 8.07, 8.08, 8.09 and 8.12 hereof shall include
the Trustee in its role as Paying Agent, as Registrar and as Collateral Agent.


 


ARTICLE 9.


LEGAL
DEFEASANCE AND COVENANT DEFEASANCE


 


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


 


The Company may at any time,
at the option of its Board of Directors evidenced by a Board Resolution, elect
to have either Section 9.02 or 9.03 hereof be applied to all outstanding
Notes and the Note Guarantees upon compliance with the conditions set forth
below in this Article 9.


 


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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 and the Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 9.04 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes
(including the Note Guarantees) on the date the conditions set forth below are
satisfied (hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means that
the Company and the Guarantors shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes and the Note
Guarantees, 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 Agreements 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 payments in respect of the
principal of, and premium and interest, if any, on, such Notes when such
payments are due from the trust described under Section 9.04(1) hereof;
(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; and (d) this
Article 9.  Subject to compliance
with this Article 9, 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 their
respective obligations under the covenants contained in Sections 5.07 through
5.19 hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 9.04 hereof 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 and Note Guarantees, the Company and the Guarantors 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 and Note Guarantees 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(4) through 7.01(6) hereof
shall not constitute Events of Default.


 


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Section 9.04.                         Conditions to
Legal or Covenant Defeasance.


 


The following shall be
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:


 


(1)                                  the Company
must irrevocably deposit with the Trustee, in trust, 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, in the opinion of a
nationally recognized investment bank, appraisal firm or firm of independent
public accountants, to pay the principal of, and interest and premium, if any,
on, the outstanding Notes on the stated date for payment thereof;


 


(2)                                  in the case of
an election under Section 9.02 hereof, the Company will 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 will 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;


 


(3)                                  in the case of
an election under Section 9.03 hereof, the Company will 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;


 


(4)                                  no Default or
Event of Default will have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit) or, insofar as Section 7.01(9) or
7.01(10) hereof is concerned, at any time in the period ending on the
ninety-first (91st) day after the date of deposit and the deposit will not
result in a breach or violation of, or constitute a default under, any other
instrument to which the Company or a Guarantor is a party or by which the
Company or a Guarantor is bound;


 


(5)                                  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 of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound;


 


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(6)                                  the Company
will have delivered to the Trustee an Officer’s Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders
over the other creditors of the Company and its Subsidiaries or with the intent
of defeating, hindering, delaying or defrauding any creditors of the Company
and its Subsidiaries or others; and


 


(7)                                  the Company
will have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to Legal
Defeasance or 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 9
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.


 


The Collateral will be
released from the Lien securing the Notes, as provided under Section 11.04
hereof, upon a Legal Defeasance or Covenant Defeasance in accordance with the
provisions described in this Article 9.


 


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, and interest or premium, if any, on, any Note and
remaining unclaimed for two years after such principal, and interest or
premium, if any, 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


 


88

















 


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 thirty (30) 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 U.S. 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, any Collateral Agreement, the Notes and the Note
Guarantees without the consent of any Holder:


 


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


 


(2)                                  to provide for
uncertificated Notes in addition to or in place of certificated Notes;


 


(3)                                  to provide for
the assumption of the obligations of the Company or any Guarantor to Holders in
the case of a merger or consolidation or sale of all or substantially all of
the Company’s or any Guarantor’s assets in accordance with the provisions of
this Indenture;


 


(4)                                  to effect the
release of a Guarantor from its Note Guarantee and the termination of such Note
Guarantee, all in accordance with the provisions of this Indenture governing
such release and termination;


 


(5)                                  to add any Note
Guarantee or to secure the Notes or any Note Guarantee;


 


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


 


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


 


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


 


(9)                                  to provide for
a successor trustee in accordance with the provisions of this Indenture.


 


Upon the request of the
Company accompanied by a Board Resolution 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, the Guarantors and the Trustee may amend
or supplement this Indenture, any Collateral Agreement, the Notes and the Note
Guarantees with the consent of the Holders of at least a majority in aggregate
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 and Note
Guarantees), and, subject to Sections 7.04 and 7.07 hereof, any existing
Default or Event or 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, any Collateral Agreement or
the Notes and Note Guarantees may be waived with the consent of the Holders of
a majority in aggregate 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 Board Resolution 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 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, the Note Guarantees or any
Collateral Agreement 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.


 


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It shall not be necessary
for the consent of the Holders under this Section 10.02 to approve the
particular form of any proposed amendment, supplement 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 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 or Collateral Agreement or
waiver.


 


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 10.02
shall be deemed to be a change to this Section 10.02.


 


Subject to Sections 7.04 and
7.07 hereof, the Holders of a majority in aggregate principal amount of the
then outstanding Notes (including Additional Notes, if any) voting as a single
class may waive compliance by the Company, the Guarantors or the Trustee in a
particular instance with any provision of this Indenture, any Collateral
Agreement, the Notes or the Note Guarantees. 
However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section 10.02 may not (with respect to any
Notes held by a non-consenting Holder):


 


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


 


(2)                                  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;


 


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


 


(4)                                  waive a Default
or Event of Default in the payment of principal of, or interest on, or premium,
if any, 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);


 


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


 


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


 


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(7)                                  release any
Collateral from the Liens of the pledge and security agreements, except as
contemplated by the pledge and security agreements;


 


(8)                                  waive a
redemption payment or mandatory redemption with respect to any Notes;


 


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


 


(10)                            make any change
in Section 7.04 or 7.07 hereof or in the preceding provisions relating to
amendment, supplement and waiver.


 


Section 10.03.                  Compliance with Trust
Indenture Act.


 


Every amendment or
supplement to this Indenture, the Notes, the Note Guarantees or the Collateral
Agreements 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 amendment,
supplement or waiver 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 or the
Collateral Agent, as applicable, shall sign any amendment or supplement to this
Indenture, any Collateral Agreement, the Notes or the Note Guarantees
authorized pursuant to this Article 10 if the amendment or supplement does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee or the Collateral Agent, as applicable. 
The Company and Guarantors may not sign an amendment or supplement to
this Indenture, any Collateral Agreement, the Notes or the Note Guarantees
until the Board of Directors of the Company or the Guarantor, as applicable,
approves it.  In executing any amendment
or supplement to this Indenture, any Collateral Agreement, the Notes or the
Note Guarantees, the


 


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Trustee
or the Collateral Agent, as applicable, 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
amendment or supplement to this Indenture, any Collateral Agreement, the Notes
or the Note Guarantees is authorized or permitted by this Indenture.


 


ARTICLE 11.


COLLATERAL
AND SECURITY


 


Section 11.01.                  Collateral Agreements.


 


(a)           The due and punctual payment
of the principal of and interest, if any, on the Notes and the Note Guarantees
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 the Note Guarantees and performance of all other
obligations of the Company and the Guarantors to the Holders, the Trustee or
the Collateral Agent under this Indenture, the Notes, the Note Guarantees and
the Collateral Agreements, according to the terms hereunder or thereunder,
shall be secured as provided in the Collateral Agreements.  Each Holder, by its acceptance thereof,
consents and agrees to the terms of the Collateral Agreements and the
Intercreditor Agreement (including, without limitation, the provisions
providing for foreclosure and release of the Collateral) as the same may be in
effect or may be amended from time to time in accordance with their terms and
authorizes and directs each of the Collateral Agent and the Trustee, as the
case may be, to enter into the Collateral Agreements and to perform its
obligations and exercise its rights thereunder in accordance therewith.  The Company and the Guarantors shall deliver
to the Trustee copies of all documents delivered to the Collateral Agent
pursuant to any Collateral Agreements, and shall do or cause to be done all
such acts and things as may be necessary or proper, or that the Collateral
Agent from time to time may request, or as may be required by the provisions of
any Collateral Agreement, to assure and confirm to the Trustee and the
Collateral Agent that the Collateral Agent holds, for the benefit of itself, the
Trustee and the Holders, duly created and perfected Note Liens upon the
Collateral (including any After-Acquired Property), in each case, as
contemplated hereby, by any Collateral Agreements 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 Agreements to
create and maintain, as security for the Obligations of the Company and the
Guarantors hereunder, a valid and enforceable perfected first priority Lien in
and on all the Collateral, in favor of the Collateral Agent and the Trustee, as
the case may be, for the benefit of the Collateral Agent, the Trustee and the
Holders and other Indebtedness subject to the Collateral Agreements superior to
and prior to the rights of all third Persons (other than holders of Permitted
Senior Liens) and subject to no other Liens other than Permitted Liens.  The Company and the Guarantors hereby agree
that the Collateral Agent shall hold the Collateral in trust for the benefit of
itself, the Trustee and the Holders, in each case pursuant to the terms of the
Collateral Agreements and the Intercreditor Agreement.


 


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(b)           The Company and the
Guarantors agree to record and file, at its or their own expense, financing
statements (and continuation statements when applicable) with respect to the
Collateral now existing or hereafter created meeting the requirements of
applicable law in such manner and in such jurisdictions as are necessary to
perfect, and maintain the perfection of, the Note Liens, and deliver a file
stamped copy of each such financing statement or other evidence of filing to
the Trustee and the Collateral Agent, promptly. 
Neither the Trustee nor the Collateral Agent shall be under any
obligation whatsoever to file such financing or continuation statements or to
make any other filing under the UCC in connection therewith.


 


(c)           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.


 


(d)           The Trustee and each Holder,
by accepting the Notes and the Note Guarantees, acknowledges that, as more
fully set forth in the Collateral Agreements and the Intercreditor Agreement,
the Collateral as now or hereafter constituted shall be held for the benefit of
all the Holders, the Collateral Agent and the Trustee, and that the Lien of the
Collateral Agreements in respect of the Trustee, the Collateral Agent and the
Holders is subject to and qualified and limited in all respects by the
Collateral Agreements and the Intercreditor Agreement and actions that may be
taken thereunder.


 


Section 11.02.                  Recording and Opinions.


 


(a)           At the time of execution and
delivery of this Indenture, the Company shall furnish or cause to be furnished
to the Trustee Opinion(s) of Counsel substantially in the form of the
Opinion of Counsel delivered on the Original Issue Date to the Initial
Purchasers of the Notes (or the Trustee shall be permitted to rely on such
Opinion(s) of Counsel).


 


(b)           Promptly but in no event
later than thirty (30) days after the execution and delivery of this Indenture,
the Company shall furnish or cause to be furnished to the Trustee Opinion(s) of
Counsel required by TIA Section 314(b)(1) and thereafter Opinion(s) of
Counsel required by TIA Section 314(b)(2).


 


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


 


Section 11.03.                  Agreements Requiring
Application of Proceeds of Collateral.


 


Neither the Company nor any
of its Restricted Subsidiaries shall enter into any agreement that requires the
proceeds received from any sale of Collateral to be applied to repay, redeem,
defease or otherwise acquire or retire any debt of any Person, other than as
permitted by this Indenture, the Notes, the Note Guarantees, the Collateral
Agreements and the Intercreditor Agreement.


 


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Section 11.04.                  Release of Collateral.


 


(a)           Subject to subsections (b),
(c), (d) and (e) of this Section 11.04, Collateral shall
automatically be released from the Lien and security interest created by the
Collateral Agreements at any time or from time to time in accordance with the
provisions of the Collateral Agreements or as provided hereby.  In addition, upon the request of the Company
pursuant to an Officer’s Certificate and Opinion of Counsel certifying that all
conditions precedent hereunder have been met and stating whether or not such
release is in connection with an Asset Sale (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 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 Officer’s Certificate and Opinion of Counsel, 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 Collateral permitted to be released pursuant to
this Indenture or the Collateral Agreements.


 


(b)           The Note Liens upon the
Collateral will no longer secure the Notes or any other Note Obligations, and
the right of the Holders to the benefits and proceeds of the Note Liens on the
Collateral will terminate and be discharged automatically:


 


(i)            upon satisfaction and discharge of this Indenture as
set forth under Article 13 hereof;


 


(ii)           upon a Legal Defeasance or Covenant Defeasance of
the Notes under this Indenture as set forth under Article 9 hereof;


 


(iii)          upon payment in full and discharge of all Notes
outstanding under this Indenture and all Note Obligations that are outstanding,
due and payable under this Indenture at the time the Notes are paid in full and
discharged;


 


(iv)          in whole or in part, with the consent of the Holders
in accordance with the provisions of this Indenture described under Article 10
hereof; or


 


(v)           to the extent not otherwise terminated and
discharged, with respect to any asset that is or becomes an Excluded Asset.


 


(c)           No Collateral shall be
released from the Liens and security interest created by the Collateral
Agreements pursuant to the provisions of the Collateral Agreements unless (i) there
shall have been delivered to the Collateral Agent the Officer’s Certificate and
Opinion of Counsel required by this Section 11.04 and (ii) the
Collateral Agent and the Trustee have received all documentation, if any, that
may be required by the TIA.  In
connection with any release of Collateral, the Collateral Agent will promptly
execute any release documentation with respect thereto reasonably requested by
the Company.  Upon the payment in full of
all Note 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


 


95

















 


Collateral Agent stating that such Note
Obligations have been paid in full, and instruct the Collateral Agent to
release the Liens pursuant to this Indenture and the Collateral Agreements.


 


(d)           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 Collateral pursuant to the provisions of the Collateral
Agreements shall be effective as against the Holders.


 


(e)           The release of any
Collateral from the terms of this Indenture and the Collateral Agreements shall
not be deemed to impair the security under this Indenture in contravention of
the provisions hereof if and to the extent the 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 Agreements and relating to the substitution
therefor of any property or securities to be subjected to the Lien and security
interest of the Collateral Agreements, 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 11.05.                  Certificates of the Company.


 


The Company shall furnish to
the Trustee and the Collateral Agent, prior to each proposed release of
Collateral pursuant to any Collateral Agreements, (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 11.06.                  Certificates of the Trustee.


 


In the event that the
Company wishes to release Collateral in accordance with the Collateral
Agreements and has delivered the certificates and documents required by the
Collateral Agreements 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 11.05 hereof, shall deliver a
certificate to the Collateral Agent setting forth such determination.


 


Section 11.07.                  Authorization of Actions to
Be Taken by the Trustee Under the Collateral Agreements.


 


Subject to the provisions of
Section 8.01 and 8.02 hereof, and to the Collateral Agreements and the
Intercreditor Agreement, each of the Trustee or the Collateral Agent may, in
its sole discretion and without the consent of the Holders, on behalf of the
Holders, take all actions it deems necessary or appropriate in order to (1) enforce
any of the terms of the Collateral Agreements and the Intercreditor Agreement
and (2) collect and receive any and all


 


96

















 


amounts
payable in respect of the Collateral in respect of the Obligations of the
Company and the Guarantors hereunder and thereunder.  Subject to the provisions of the Collateral
Agreements and the Intercreditor Agreement, 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
Collateral by any acts that may be unlawful or in violation of the Collateral
Agreements, the Intercreditor Agreement or this Indenture, and such suits and
proceedings as the Trustee or the Collateral Agent may deem expedient to
preserve or protect its interests and the interests of the Holders in the
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 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, the Collateral Agent or the Trustee).


 


Section 11.08.                  Authorization of Receipt of
Funds by the Trustee Under the Collateral Agreements.


 


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


 


Section 11.09.                  Relative Rights.


 


Nothing in the Note
Documents will:


 


(1)                                  impair, as
between the Company and the Holders, the Company’s obligations to pay the
principal of, premium, if any, and interest on, the Notes in accordance with
the terms of the Notes or any of the Company’s other obligations or any
Guarantor’s obligations;


 


(2)                                  affect the
relative rights of Holders as against any of the Company’s or the Guarantors’
other creditors (other than holders of Working Capital Facility Liens, Pari
Passu Indebtedness Liens and Existing Note Liens);


 


(3)                                  restrict the
right of any Holder to sue for payments that are then due and owing (but not
enforce any judgment in respect thereof against any Collateral to the extent
specifically prohibited by the Intercreditor Agreement);


 


(4)                                  restrict or
prevent any Holder, the Trustee or the Collateral Agent from exercising any of
its rights or remedies upon a Default or Event of Default not specifically restricted
or prohibited by the Intercreditor Agreement; or


 


(5)                                  restrict or
prevent any Holder, the Trustee or the Collateral Agent from taking any lawful
action in an insolvency or liquidation proceeding not specifically restricted
or prohibited by the Intercreditor Agreement.


 


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Section 11.10.                  Limitation on Duty of
Trustee and Collateral Agent as to Collateral; Indemnification.


 


(a)           Beyond the exercise of
reasonable care in the custody thereof, neither the Trustee nor the Collateral
Agent shall have any duty as to any Collateral in its possession or control or
in the possession or control of any agent or bailee or any income thereon or as
to preservation of rights against prior parties or any other rights pertaining
thereto and neither the Trustee nor the Collateral Agent shall be responsible
for filing any financing or continuation statements or recording any documents
or instruments in any public office at any time or times or otherwise
perfecting or maintaining the perfection of any security interest in the
Collateral.  The Trustee and Collateral
Agent shall be deemed to have exercised reasonable care in the custody of the
Collateral in its or their possession if the Collateral is accorded treatment
substantially equal to that which it or they accord their own property and
shall not be liable or responsible for any loss or diminution in the value of
any of the Collateral, by reason of the act or omission of any carrier,
forwarding agency or other agent or bailee selected by the Trustee or the
Collateral Agent in good faith.


 


(b)           Neither the Trustee nor the
Collateral Agent shall be responsible for the existence, genuineness or value
of any of the Collateral or for the validity, perfection, priority or enforceability
of the Note Liens in any of the Collateral, whether impaired by operation of
law or by reason of any action or omission to act on its or their part
hereunder, except to the extent such action or omission constitutes gross
negligence, bad faith or willful misconduct on the part of the Trustee or the
Collateral Agent, as applicable, for the validity or sufficiency of the
Collateral or any agreement or assignment contained therein, for the validity
of the title of the Company to the Collateral, for insuring the Collateral or
for the payment of taxes, charges, assessments or Note Liens upon the
Collateral or otherwise as to the maintenance of the Collateral.


 


(c)           The Company shall indemnify
the Collateral Agent as set forth in the Collateral Agreements.


 


Section 11.11.                  Authorization of
Intercreditor Agreement.


 


The Holders, by their
acceptance of the Notes, hereby irrevocably authorize and direct the Trustee to
enter into the Intercreditor Agreement on behalf of the Trustee and the
Holders, and agree to be bound by the provisions thereof as if they were direct
signatories thereof, and to take all actions required to be taken by them in
accordance with the provisions thereof, and to otherwise comply therewith, and
irrevocably authorize and direct the Trustee to take all actions on its or the
Holders’ behalf as are necessary to comply with the provisions thereof.  The rights and remedies of the Trustee, on
behalf of the Holders, under this Indenture shall be subject to the
Intercreditor Agreement as in effect from time to time.  In the event of any conflict between the
terms of the Intercreditor Agreement and this Indenture, the terms of the
Intercreditor Agreement shall govern and control.


 


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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, premium 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 premium 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
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.  To the extent permitted by
applicable law, 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 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.


 


To the extent permitted by
applicable law, 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, to the extent permitted by applicable law (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article 7 hereof for the purposes of this


 


99

















 


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 Note
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 the Bankruptcy Code, 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 be limited to the maximum amount as
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.                  Execution and Delivery of
Note Guarantee.


 


To evidence the Note
Guarantee set forth in Section 12.01 hereof, each Guarantor agrees that a
notation of such Note Guarantee substantially in the form of Exhibit D
hereto will be endorsed by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture will be
executed on behalf of such Guarantor by one of its Officers.


 


Each Guarantor hereby agrees
that its Note Guarantee set forth in Section 12.01 hereof 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.


 


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.


 


In the event that the
Company or any of its Restricted Subsidiaries creates or acquires any Domestic
Restricted Subsidiary after the date of this Indenture, if required by Section 5.18
hereof, the Company and the Guarantors will cause such Domestic Restricted
Subsidiary to comply with the provisions of Section 5.18 hereof and this Article 12,
to the extent applicable.


 


100

















 


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 Restricted 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 Section 5.10 and Article 6 hereof.  Upon delivery by the Company to the Trustee
of an Officer’s 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, including Section 5.10 and Article 6
hereof, the Trustee shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under its Note
Guarantee.


 


Upon designation of any
Guarantor as an Unrestricted Subsidiary in accordance with the terms of this
Indenture, such Guarantor will be release and relieved of any 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 12.


 


ARTICLE 13.

SATISFACTION AND DISCHARGE


 


Section 13.01.                  Satisfaction and Discharge.


 


This Indenture will be
discharged and will cease to be of further effect (except as to surviving
rights or registration or exchange of the Notes, as expressly provided for in
this Indenture) 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 have become due and
payable by reason of the delivery of a notice of redemption or otherwise or
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, 


 


101

















 


or a combination therof, 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 cancellation for principal, interest and premium, if any, to the
date of maturity or redemption;


 


(2)                                  no Default or
Event of Default has occurred and is 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 the deposit will not result in a breach or violation of, or constitute a
default under, any material agreement or 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 or the
redemption date, as the case may be.


 


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


 


Nothing in this Section 13.01
will be deemed to discharge those provisions of Section 8.07 hereof, that,
by their terms, survive the satisfaction and discharge of this Indenture.


 


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 hereof
shall survive.  Further, the Collateral
will be released from the Lien securing the Notes, as provided under Section 11.04
hereof, upon a satisfaction and discharge in accordance with the provisions
described in this Section 13.01.


 


Section 13.02.                  Application of Trust Money.


 


Subject to the provisions of
Section 9.06 hereof, all money deposited with the Trustee pursuant to Section 13.01
hereof 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
hereof 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 hereof; provided that if the Company has made any payment of


 


102






 












 


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.


 


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


 


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:


 


FiberTower Corporation


185 Berry Street, Suite 4800


San Francisco, CA 94107


Fax: 415-659-0007


Attention: Chief Financial
Officer


 


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


 


Andrews Kurth LLP


600 Travis Street, Suite 4200


Houston, TX 77002


Fax: 713-238-7111


Attention:  W. Mark Young, Esq.


 


If to the Trustee and/or
Collateral Agent:


 


Wells Fargo Bank, National
Association


Corporate Trust Services


1445 Ross Avenue, 2nd Floor


Dallas, TX 75202-2812


Fax:  214-777-4086


Attention:  Patrick T. Giordano


 


103

















 


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 (5) 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.


 


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 Officer’s 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.


 


104

















 


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:


 


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


 


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


 


(3)           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


 


(4)           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 the
Collateral Agreements 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.  The waiver may not be effective to waive liabilities
under the federal securities laws.


 


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.


 


105

















 


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 Collateral Agreements and the Notes shall
bind its successors.  All agreements of
the Trustee in this Indenture and the Collateral Agreements shall bind its
successors.  All agreements of each
Guarantor in this Indenture and the Collateral Agreements 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.


 


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.      Benefit of Indenture.


 


Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto, any Paying Agent, any Registrar and their successors and
assigns hereunder, and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.


 


Section 14.14.      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]


 


106

















 


SIGNATURES


 


Dated as of
[                ]
[    ], 2008


 


	
   

  	
  FiberTower
  Corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Thomas
  A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FiberTower
  Network Services Corp.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Thomas
  A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FiberTower
  Solutions Corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Thomas
  A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ART
  Licensing Corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Thomas
  A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ART
  Leasing, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Thomas
  A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Teligent
  Services Acquisition, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Thomas A. Scott

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  



 

















 


	
   

  	
  [NAME OF NEW FCC LICENSE SUB]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  [Thomas A. Scott]

  
	
   

  	
  Title:

  	
  [Chief Financial Officer]

  
	
   

  	
   

  	
   

  



 

















 


	
   

  	
  Wells
  Fargo Bank, National Association,

  
	
   

  	
   

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Patrick T. Giordano

  
	
   

  	
  Title:

  	
  Vice President

  



 
















 


Exhibit A


 


[Face of Note]


 


THIS
DEBT INSTRUMENT HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT WITHIN THE MEANING
OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND THE
TREASURY REGULATIONS THEREUNDER. CONTACT THE CHIEF FINANCIAL OFFICER OF THE
ISSUER AT 415-659-3500 FOR THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY OF THIS DEBT INSTRUMENT.


 


CUSIP                       


 


9.00% Senior
Secured Notes due 20[    ]


 


	
  No.        

  	
   

  	
  $                              

  
	
   

  	
   

  	
  (principal amount)

  



 


FiberTower
Corporation


 


promises
to pay to
                                                                                                           
or registered assigns, the principal amount of this Note on [                  ]
[    ], 20[    ].


 


Interest
Payment Dates: [                 ]
[    ] and [              ]
[    ]


 


Record
Dates: [                 ]
[    ] and [                ]
[    ]


 


	
  Issue
  Date

  	
   

  	
   

  



 


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


 


	
  Dated:

  	
   

  	
   

  



 


	
  FiberTower
  Corporation

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


This
is one of the Notes referred to in the within-mentioned Indenture:


 


Wells
Fargo Bank, National Association,


as
Trustee


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


A-1

















 


[Back of Note]


9.00% Senior
Secured Notes due 20[    ]


 


[Insert
the Global Note Legend, if applicable, pursuant to the provisions of the
Indenture]


 


[Insert
the Private Placement Legend, if applicable, pursuant to the provisions of the
Indenture]


 


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


 


1.             INTEREST. 
FiberTower Corporation, a Delaware corporation (the “Company”), promises to pay interest on the principal amount
of this Note at 9.00% per annum from                             
until maturity.


 


The Company will pay
interest semi-annually in arrears on [                ]
[    ] and [                ]
[    ] 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[                ]
[    ], 20[    ]; and provided, further, that each payment of interest on this
Note shall be comprised of (i) cash in an amount equal to one-third of the
amount of such payment of interest and (ii) Additional Notes in a
principal amount equal to two-thirds of the amount of such payment of interest;
provided, further, that the Company
shall deliver to the Trustee, no later than one Business Day prior to each
Interest Payment Date, an order to authenticate and deliver such Additional
Notes.  Any Additional Note will be
identical to this Note, except that interest on an Additional Note will begin
to accrue from the date it is issued.


 


Pursuant to the Escrow
Agreement, the Company has deposited in the Escrow Account cash or Government
Securities that, upon maturity, will be equal to the amount sufficient for the
Company to fully pay the initial six cash interest payments when due.


 


The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Code) on overdue principal, if any, at the rate equal to 1.0% per
annum in excess of the then applicable interest rate on the Notes to the extent
lawful; the Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Code) on overdue installments of interest
(without regard to any applicable grace period) 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 at the close of business on the [                ]
[    ] or [                ]
[    ], as the case may be, preceding the applicable
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 on, the Notes at the office or agency of the
Paying Agent maintained for such purpose by the Company, 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 and interest and premium, if any, 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 AND REGISTRAR.  Initially, Wells Fargo Bank, National
Association, as the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to the Holders.  The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to the
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.


 


A-2

















 


4.             INDENTURE AND COLLATERAL AGREEMENTS.  The Company issued the Notes under an
Indenture, dated as of [                ]
[    ], 20[    ] (the “Indenture”), among the Company, the Guarantors party thereto
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 Notes are secured as provided in the
Collateral Agreements referred to in the Indenture.


 


5.             OPTIONAL REDEMPTION. 
(a)  Except as set forth in clause (b) of this paragraph 5,
the Company shall not have the option to redeem the Notes prior to [                ]
[    ], 20[    ].  On or after [                ]
[    ], 20[    ], the Company may
redeem all or a portion of the Notes upon not less than 30 days’ nor more than
60 days’ notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest to the
applicable redemption date, if redeemed during the twelve month period
beginning on [                ]
[    ] of the years indicated below, subject to the rights
of Holders on the relevant record date to receive interest on the relevant
interest payment date:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  20[    ]

  	
   

  	
  104.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  20[    ]

  	
   

  	
  104.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  20[    ]

  	
   

  	
  102.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  20[    ] and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)  At any time prior to [                ]
[    ], 20[    ], the Company may
redeem the Notes in whole or in part, at a redemption price equal to the sum
of: (1) the principal amount thereof, plus (2)  accrued and unpaid
interest, if any, to the redemption date, plus (3) the Applicable Premium
at the redemption date.  “Applicable
Premium” means, with respect to a Note at any time, the excess, if any, of (A) the
present value at such time of (i) the redemption price of such Note on [                ]
[    ], 20[    ] (such redemption price
being set forth in the table appearing above) plus (ii) any required
interest payments (excluding accrued and unpaid interest to such redemption
date) due on such Note through [                ]
[    ], 20[    ], computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over (B) the
principal amount of such Note.  “Treasury
Rate” means the yield to maturity at the time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15(519) which has become
publicly available at least two Business Days prior to the date fixed for
redemption or, in the case of defeasance, prior to the date of deposit (or, if
such Statistical Release is no longer published, any publicly available source
of similar market data)) most nearly equal to the then remaining average life
to [                ]
[    ], 20[    ]; provided,
however, that if the average life to such date of the Notes is not
equal to the constant maturity of a United States Treasury security for which a
weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the average life to such date of the Notes is less than
one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.


 


(c)           Funds payable in respect of the
redemption price to be paid upon the redemption of any Notes held by a Holder
shall include such Holder’s Pro Rata Amount of the amounts in the Escrow
Account, with respect to such Holder’s Notes that are to be redeemed.


 


6.             REPURCHASE AT OPTION OF HOLDER.   (a) If there shall occur a Fundamental
Change at any time prior to the maturity of the Notes, then each Holder shall
have the right, at such Holder’s option, to require the Company to repurchase
all of such Holder’s Notes, or any portion thereof that is a multiple of $1,000
principal amount, for cash on a date designated by the Company (the “Fundamental Change Repurchase Date”) that is not less than
twenty (20) nor more than thirty (30) days after the date of the Fundamental
Change Notice for such 


 


A-3

















 


Fundamental Change at a repurchase price equal to 101%
of the principal amount of the Notes to be repurchased, plus accrued and unpaid
interest up to, but excluding, the Fundamental Change Repurchase Date.  Notwithstanding the foregoing, if a
Fundamental Change Repurchase Date falls after an interest payment record date
but on or prior to the corresponding Interest Payment Date, the Company will
pay the full amount of accrued and unpaid interest on such Interest Payment
Date to the Holder of record at the close of business on the corresponding
record date.  Notwithstanding the
foregoing, no Notes may be surrendered for repurchase pursuant to Section 3.08
of the Indenture in connection with a merger, consolidation or other
transaction effected solely for the purpose of changing the Company’s
jurisdiction of incorporation to any other state within the United States.


 


(b)           If the Company or any
Restricted Subsidiary of the Company consummates any Asset Sale, within five (5) days
of each date when the aggregate amount of Excess Proceeds exceeds $5.0 million,
the Company will make an Asset Sale Offer pursuant to Section 5.10 of the
Indenture to all Holders and all holders of other senior secured Indebtedness
that is pari passu in right of payment and as to security interests with the
Notes with respect to the assets that are the subject of such Asset Sale
containing provisions similar to those set forth in the Indenture with respect
to offers to purchase or redeem with the proceeds of sales of assets to
purchase the maximum amount of Notes and such other pari passu Indebtedness
that may be purchased out of the Excess Proceeds in accordance with the
procedures set forth in Section 3.09 of the Indenture. The offer price for
the Notes in any Asset Sale Offer will be equal to 100% of the principal amount
of the Notes, plus accrued and unpaid interest to the date of purchase.  If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds
for any purpose not otherwise prohibited by the Indenture. If the principal
amount of Notes and the amount of other pari passu Indebtedness tendered into
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes and such other pari passu Indebtedness to be purchased on a
pro rata basis.  Upon completion of each
Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.


 


(c)           Funds payable in respect of
the purchase price to be paid upon any such purchase of any Notes (described in
paragraph (a) or (b) above) held by a Holder shall include such
Holder’s Pro Rata Amount of the amounts in the Escrow Account, with respect to
such Holder’s Notes that are to be so purchased.


 


7.             NOTICE OF REDEMPTION. 
At least thirty (30) days but not more than sixty (60) days before a
redemption date, the Company will mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be redeemed at
its registered address, except that redemption notices may be mailed more than
sixty (60) days prior to a redemption date if the notice is issued in
connection with a defeasance of the Notes or a satisfaction and discharge of
the Indenture pursuant to Articles 9 or 13 of the Indenture. 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 redemption date, interest ceases to accrue on
Notes or portions thereof called for redemption.


 


8.             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. Neither the Company nor the Registrar will be
required to (1) issue, register the transfer of or exchange any Notes
during a period beginning at the opening of business fifteen (15) days before
the day of any selection of Notes for redemption under Section 3.02 of the
Indenture and ending at the close of business on the day of selection, (2) register
the transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part, or (3) register
the transfer of or exchange a Note between a record date and the next
succeeding interest payment date.


 


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


 


10.           AMENDMENT, SUPPLEMENT AND WAIVER.  Subject to certain exceptions in Section 10.02
of the Indenture, the Company, the Guarantors and the Trustee may amend or
supplement the Indenture, any Collateral Agreement, the Notes and the Note
Guarantees with the consent of the Holders of at least a majority in aggregate
principal amount of the Notes (including Additional Notes, if any) then
outstanding voting as a single 


 


A-4

















 


class (including consents obtained in connection with
a tender offer or exchange offer for, or purchase of, the Notes and Note
Guarantees), and, subject to Sections 7.04 and 7.07 of the Indenture, 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 the Indenture, any Collateral
Agreement or the Notes and Note Guarantees may be waived with the consent of
the Holders of a majority in aggregate 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).


 


Without the consent of each
Holder affected, an amendment, supplement or waiver under Section 10.02 of
the Indenture may not (with respect to any Notes held by a non-consenting
Holder): (1) reduce the aggregate principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver; (2) 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; (3) reduce the
rate of or change the time for payment of interest, including default interest,
on any Note; (4) waive a Default or Event of Default in the payment of
principal of, or interest on, or premium, if any, 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); (5) make any Note payable in money other than
that stated in the Notes; (6) make any change in the provisions of the
Indenture relating to waivers of past Defaults or the rights of Holders to
receive payments of principal of, or interest on, or premium, if any, on, the
Notes; (7) release any Collateral from the Liens of the pledge and
security agreements, except as contemplated by the pledge and security
agreements; (8) waive a redemption payment or mandatory redemption with
respect to any Notes; (9) release any Guarantor from any of its
obligations under its Note Guarantee or the Indenture, except in accordance
with the terms of the Indenture; or (10) make any change in Section 7.04
or 7.07 of the Indenture or in the provisions relating to amendment, supplement
and waiver in the Indenture.


 


Without the consent of any
Holder, the Company, the Guarantors and the Trustee may amend or supplement the
Indenture, any Collateral Agreement, the Notes and the Note Guarantees: (1) to
cure any ambiguity, defect or inconsistency; (2) to provide for
uncertificated Notes in addition to or in place of certificated Notes; (3) to
provide for the assumption of the obligations of the Company or any Guarantor
to Holders in the case of a merger or consolidation or sale of all or
substantially all of the Company’s or any Guarantor’s assets in accordance with
the provisions of the Indenture; (4) to effect the release of a Guarantor
from its Note Guarantee and the termination of such Note Guarantee, all in
accordance with the provisions of the Indenture governing such release and
termination; (5) to add any Note Guarantee or to secure the Notes or any
Note Guarantee; (6) to make any change that would provide additional
rights or benefits to the Holders or that does not adversely affect the legal
rights under the Indenture, the Notes, the Note Guarantees or any Collateral
Agreement of any Holder; (7) to comply with requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the Trust
Indenture Act; (8) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in the Indenture; or (9) to
provide for a successor trustee in accordance with the provisions of the
Indenture.


 


11.           DEFAULTS AND REMEDIES. 
Each of the following is an event of default: (1) default for
thirty (30) days in the payment when due of interest on the Notes; (2) default
in the payment when due (at maturity or otherwise) of the principal of, or
premium, if any, on, the Notes; (3) failure by the Company or any of its
Restricted Subsidiaries to comply with the provisions of Sections 3.08, 5.07,
5.09, 5.10 or 6.01 of the Indenture; (4) failure by the Company or any of
its Restricted Subsidiaries for sixty (60) 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 to comply with any of the other agreements in the Indenture or any Collateral
Agreement; provided, however, that with respect to
a failure by the Company to comply with Section 5.03 of the Indenture,
such period shall be ninety (90) days, rather than sixty (60) days; (5) default
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 Restricted Subsidiaries (or the payment of which
is guaranteed by the Company or any of its Restricted Subsidiaries), whether
such Indebtedness or Guarantee now exists, or is created after the date of the
Indenture, if that default (i) is caused by 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 any 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; (6) failure by 


 


A-5

















 


the Company or any of its Restricted Subsidiaries to
pay final judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $10.0 million, which judgments are not paid, discharged
or stayed for a period of sixty (60) days; (7) (i) any revocation,
cancellation or relinquishment, which action is not subject to further appeal,
of the Company’s or its Restricted Subsidiaries’ (A) 24 GHz FCC Licenses
covering a population equal to or greater than 5.0% of the population covered
by all of the Company’s and its Restricted Subsidiaries’ 24 GHz FCC Licenses or
(B) 39 GHz licenses covering a population equal to or greater than 33 1/3%
of the population covered by all of the Company’s and its Restricted
Subsidiaries’ 39 GHz licenses, with the population in each case determined by
the most recent official census conducted by the U.S. government and (ii) such
FCC License revocation, cancellation or relinquishment, individually or in the aggregate,
has a material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of the Company and its Restricted
Subsidiaries taken as a whole; (8) the Company or any of its Restricted
Subsidiaries, pursuant to or within the meaning of the Bankruptcy Code (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
the Bankruptcy Code 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; (9) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Code that (i) is for relief
against the Company or any of its Restricted Subsidiaries in an involuntary
case, (ii) appoints a custodian, receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Code of the Company or any of its
Restricted Subsidiaries, or for all or substantially all of the property of the
Company or any of its Restricted Subsidiaries, or (iii) orders the
liquidation of the Company or any of its Restricted Subsidiaries; (10) any
Collateral Agreement at any time for any reason shall cease to be in full force
and effect in all material respects, or any Collateral Agreement ceases to give
the Collateral Agent the Liens (other than Liens securing Collateral, individually
or in the aggregate, having a Fair Market Value of less than $500,000), rights,
powers and privileges purported to be created thereby, superior to and prior to
the rights of all third Persons other than the holders of Permitted Liens and
subject to no other Liens except as expressly permitted by any Collateral
Agreement or the Indenture; (11) the Company or any of its Restricted
Subsidiaries contest in any manner the effectiveness, validity, binding nature
or enforceability of any Collateral Agreement; or (12) the Note Guarantee of
any Guarantor ceases to be in full force and effect or is declared to be null
and void and unenforceable or is found to be invalid or any Guarantor denies
its liability under its Note Guarantee (other than by reason of release of a
Guarantor in accordance with the terms of the Indenture).


 


In the case of an Event of
Default specified in clause (8) or (9) above, with respect to the
Company or any Restricted Subsidiary of the Company, all outstanding Notes plus
any remaining amounts in the Escrow Account will become due and payable
immediately without further action or notice. 
If any other Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes, plus any remaining amounts in the
Escrow Account to be due and payable immediately.


 


Holders may not enforce the
Indenture or the Notes except as provided in the Indenture.  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 the Indenture or the Collateral
Agreements that the Trustee determines may be unduly prejudicial to the rights
of other Holders or that may involve the Trustee in personal liability or
expense.


 


Holders of a majority in
aggregate principal amount of the then outstanding Notes by written notice to
the Trustee may, on behalf of the Holders of all of the Notes, rescind an
acceleration or waive any existing Default or Event of Default and its
consequences under the Indenture 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, if any, that has become due solely because of
the acceleration) have been cured or waived. The Trustee may withhold from the
Holders of the Notes then outstanding notice of any continuing Default or Event
of Default under the Indenture if it determines that withholding notice is in
their interest, except a Default or Event of Default under the Indenture
relating to the payment of principal, interest or premium, if any. Subject to
the provisions of the Indenture relating to the duties of the Trustee,
including, without limitation, Section 8.01 of the Indenture, in case an
Event of Default occurs and is continuing, the Trustee will be under no
obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any Holders unless such Holders have offered to the
Trustee reasonable indemnity or security against any loss, liability or expense.


 


A-6

















 


The Company and each
Guarantor (to the extent that such Guarantor is so required under the Trust
Indenture Act) shall deliver to the Trustee, within ninety (90) days after the
end of each fiscal year, an Officer’s Certificate, signed by 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 Officer with a view to determining whether the Company and each obligor
under the Notes and the Indenture has kept, observed, performed and fulfilled
its obligations under the Note Documents, and further stating, as to the 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 the Note Documents and is not in default in the
performance or observance of any of the terms, provisions and conditions of the
Note 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.


 


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


 


12.           UNCLAIMED MONEY. 
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, and interest or
premium, if any, on, any Note and remaining unclaimed for two years after such
principal, and interest or premium, if any, 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 thirty (30) days from the date of such notification or publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.


 


13.           TRUSTEE DEALINGS WITH COMPANY.  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 ninety (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 of the Indenture.


 


14.           NO RECOURSE AGAINST OTHERS.  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, the Indenture or the Collateral
Agreements 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. The waiver may not be effective to
waive liabilities under the federal securities laws.


 


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


 


16.           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).


 


17.           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 


 


A-7

















 


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.


 


18.           GOVERNING LAW. 
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES.


 


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 and any Collateral
Agreement. Requests may be made to:


 


FiberTower Corporation


185 Berry Street, Suite 4800


San Francisco, CA 94107


Attention: Chief Financial Officer


 


A-8

















 


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).


 


A-9

















 


OPTION OF HOLDER TO ELECT REPURCHASE


 


If you want to elect to have
this Note repurchased by the Company pursuant to Section 3.08 or Section 3.09
of the Indenture, check the appropriate box below:


 


o  Section 3.08                         o  Section 3.09


 


If you want to elect to have
only part of the Note repurchased by the Company pursuant to Section 3.08
or Section 3.09 of the Indenture, state the amount you elect to have
repurchased:


 


$                     


 


	
  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).


 


A-10

















 


SCHEDULE OF
EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


The following exchanges of a
part of this Global Note for an interest in another Global Note or for a Definitive
Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of decrease

  in Principal Amount

  of this Global Note

  	
   

  	
  Amount of increase

  in Principal Amount

  of this Global Note

  	
   

  	
  Principal Amount of

  this Global Note

  following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized officer of

  Trustee or Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-11
















 


Exhibit B


 


FORM OF
CERTIFICATE OF TRANSFER


 


FiberTower
Corporation


185
Berry Street, Suite 4800


San
Francisco, CA 94107


 


Wells
Fargo Bank, National Association


Corporate
Trust Services


1445
Ross Avenue, 2nd Floor


Dallas,
TX 75202-2812


 


Re:          9.00% Senior Secured Notes
due 20[    ]


 


Reference is hereby made to
the Indenture, dated as of November 9, 2006 (the “Indenture”),
among FiberTower Corporation, as issuer (the “Company”),
the Guarantors party thereto, and Wells Fargo Bank, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                   
, (the “Transferor”) owns and proposes to
transfer the Notes[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of $                  
in such Note[s] or interests (the “Transfer”), to                                            
(the “Transferee”), as further specified in
Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:


 


[CHECK ALL THAT APPLY]


 


1.             o            Check if Transferee will take
delivery of a beneficial interest in the 144A Global Note or a Restricted
Definitive Note pursuant to Rule 144A.  The Transfer is being effected pursuant to
and in accordance with Rule 144A under the Securities Act of 1933, as
amended (the “Securities Act”), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect
to which such Person exercises sole investment discretion, and such Person and
each such account is a “qualified institutional buyer” within the meaning of Rule 144A
in a transaction meeting the requirements of Rule 144A, and such Transfer
is in compliance with any applicable blue sky securities laws of any state of
the United States. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the 144A Global Note and/or the
Restricted Definitive Note and in the Indenture and the Securities Act.


 


2.             o            Check if Transferee will take
delivery of a beneficial interest in the Regulation S Global Note or a
Restricted Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a Person in the United States and (x) at the
time the buy order was originated, the Transferee was outside the United States
or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities
Act and (iv) if the proposed transfer is being made prior to the expiration
of the Distribution Compliance Period under Regulation S, the transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser). Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to 


 


B-1

















 


the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Restricted Definitive Note and in the
Indenture and the Securities Act.


 


3.             o            Check and complete if Transferee
will take delivery of a beneficial interest in the IAI Global Note or a
Restricted Definitive Note pursuant to any provision of the Securities Act
other than Rule 144A or Regulation S.  The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted
Global Notes and Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act and any applicable blue sky securities laws of any
state of the United States, and accordingly the Transferor hereby further
certifies that (check one):


 


(a)           o            such Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities
Act;


 


or


 


(b)           o            such Transfer is being
effected to the Company or a Subsidiary thereof;


 


or


 


(c)           o            such Transfer is being
effected pursuant to an effective registration statement under the Securities
Act and in compliance with the prospectus delivery requirements of the
Securities Act;


 


or


 


(d)           o            such Transfer is being
effected to an Institutional Accredited Investor and pursuant to an exemption
from the registration requirements of the Securities Act other than Rule 144A,
Rule 144, Rule 903 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general solicitation within
the meaning of Regulation D under the Securities Act and the Transfer complies
with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit F to the
Indenture and (2) if such Transfer is in respect of a principal amount of
Notes at the time of transfer of less than $250,000, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the Transferor
has attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note
and/or the Restricted Definitive Notes and in the Indenture and the Securities
Act.


 


4.             o            Check if Transferee will take
delivery of a beneficial interest in an Unrestricted Global Note or of an
Unrestricted Definitive Note.


 


(a)           o            Check if Transfer is pursuant to Rule 144.  (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and
in compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.


 


(b)           o            Check if Transfer is Pursuant to
Regulation S.  (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the 


 


B-2

















 


restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.


 


(c)           o            Check if Transfer is Pursuant to
Other Exemption.  (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule 903
or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.


 


This certificate and the
statements contained herein are made for your benefit and the benefit of the
Company.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


B-3

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.             The Transferor owns and
proposes to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)           o            a beneficial interest in the:


 


(i)            o            144A Global Note (CUSIP                    ),
or


(ii)           o            Regulation S Global Note
(CUSIP                   ),
or


(iii)          o            IAI Global Note (CUSIP                   );
or


 


(b)           a Restricted Definitive
Note.


 


2.             After the Transfer the
Transferee will hold:


 


[CHECK ONE]


 


(a)           a beneficial interest in
the:


 


(i)            o            144A Global Note (CUSIP                   ),
or


(ii)           o            Regulation S Global Note
(CUSIP                   ),
or


(iii)          o            IAI Global Note (CUSIP                   );
or


(iv)          o            Unrestricted Global Note
(CUSIP                   );
or


 


(b)           o            a Restricted Definitive
Note; or


 


(c)           o            an Unrestricted Definitive
Note, in accordance with the terms of the Indenture.


 


B-4

















 


Exhibit C


 


FORM OF
CERTIFICATE OF EXCHANGE


 


FiberTower
Corporation


185
Berry Street, Suite 4800


San
Francisco, CA 94107


 


Wells
Fargo Bank, National Association


Corporate
Trust Services


1445
Ross Avenue, 2nd Floor


Dallas,
TX 75202-2812


 


Re:          9.00% Senior Secured Notes
due 20[    ]


 


(CUSIP                         )


 


Reference is hereby made to
the Indenture, dated as of November 9, 2006 (the “Indenture”),
among FiberTower Corporation, as issuer (the “Company”),
the Guarantors party thereto, and Wells Fargo Bank, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                                    ,
(the “Owner”) owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $                        
in such Note[s] or interests (the “Exchange”). In
connection with the Exchange, the Owner hereby certifies that:


 


1.             Exchange of Restricted Definitive
Notes or Beneficial Interests in a Restricted Global Note for Unrestricted
Definitive Notes or Beneficial Interests in an Unrestricted Global Note


 


(a)           o            Check if Exchange is from
beneficial interest in a Restricted Global Note to beneficial interest in an
Unrestricted Global Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
Securities Act of 1933, as amended (the “Securities Act”),
(iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


(b)           o            Check if Exchange is from
beneficial interest in a Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.


 


(c)           o            Check if Exchange is from
Restricted Definitive Note to beneficial interest in an Unrestricted Global
Note.  In connection with the Owner’s
Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in 


 


C-1

















 


order
to maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.


 


(d)           o            Check if Exchange is from
Restricted Definitive Note to Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


2.             Exchange of Restricted Definitive
Notes or Beneficial Interests in Restricted Global Notes for Restricted
Definitive Notes or Beneficial Interests in Restricted Global Notes


 


(a)           o            Check if Exchange is from
beneficial interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.


 


(b)           o            Check if Exchange is from
Restricted Definitive Note to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CHECK ONE] o 144A Global
Note, o Regulation S Global Note, o IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.


 


This certificate and the
statements contained herein are made for your benefit and the benefit of the
Company.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


C-2

















 


Exhibit D


 


FORM OF
NOTATION OF GUARANTEE


 


For value received, each
Guarantor (which term includes any successor Person under the Indenture) has,
jointly and severally, unconditionally guaranteed, to the extent set forth in
the Indenture and subject to the provisions in the Indenture, dated as of [                ]
[    ], 20[    ] (the “Indenture”), among FiberTower Corporation, (the “Company”), the Guarantors party thereto, and Wells Fargo
Bank, National Association, as trustee (the “Trustee”),
(a) the due and punctual payment of the principal of, premium, if any, and
interest on, the Notes, whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal of and
interest on the Notes, if any, if lawful, and the due and punctual performance
of all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other obligations,
that the 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. The obligations of the Guarantors to the Holders and
to the Trustee pursuant to the Note Guarantees and the Indenture are expressly
set forth in Article 12 of the Indenture and reference is hereby made to
the Indenture for the precise terms of the Note Guarantees.


 


Capitalized terms used but
not defined herein have the meanings given to them in the Indenture.


 


	
   

  	
  [Name
  Of Guarantor(s)]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-1

















 


Exhibit E


 


FORM OF
CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


FiberTower
Corporation


185
Berry Street, Suite 4800


San
Francisco, CA 94107


 


Wells
Fargo Bank, National Association


Corporate
Trust Services


1445
Ross Avenue, 2nd Floor


Dallas,
TX 75202-2812


 


Re:          9.00% Senior Secured Notes due 20[    ]


 


Reference is hereby made to
the Indenture, dated as of [                ]
[    ], 20[    ] (the “Indenture”), among FiberTower Corporation, as issuer (the “Company”), the Guarantors party thereto, and Wells Fargo
Bank, National Association, as Trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.


 


In connection with our
proposed purchase of $                        
aggregate principal amount of:


 


(a)           o            a beneficial interest in a
Global Note, or


 


(b)           o            a Definitive Note,


 


we
confirm that:


 


1.             We understand
that any subsequent transfer of the Notes or any interest therein is subject to
certain restrictions and conditions set forth in the Indenture and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).


 


2.             We understand
that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered
or sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell the Notes or any interest therein, we will do so
only (A) to the Company or any Subsidiary thereof, (B) in accordance
with Rule 144A under the Securities Act to a “qualified institutional
buyer” (as defined therein), (C) to an institutional “accredited investor”
(as defined below) that is purchasing for its own account or for the account of
such an institutional “accredited investor” for investment purposes and not
with a view to or for offer or sale in connection with any distribution in
violation of the Securities Act that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to the Trustee and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Notes, at the time of transfer
of less than $250,000, an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904
of Regulation S under the Securities Act, (E) pursuant to the provisions
of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any Person purchasing the Definitive Note or beneficial interest
in a Global Note from the Company in a transaction meeting the requirements of
clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.


 


3.             We understand
that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to the Trustee and the Company such certifications,
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.


 


E-1

















 


4.             We are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment.


 


5.             We are
acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited
investor”) as to each of which we exercise sole investment discretion.


 


The Trustee and the Company
are entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


E-2
















 


Exhibit F


 


FORM OF INTERCREDITOR AGREEMENT


 
















 


Execution Copy


 


OMNIBUS INTERCREDITOR AGREEMENT


 


This OMNIBUS INTERCREDITOR
AGREEMENT, dated as of December 7, 2009 (as may be amended, modified,
supplemented, or restated from time to time, this “Omnibus  Agreement”),
is entered into by and among (a) WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, in its capacity as trustee pursuant to the
Existing Notes Indenture (as hereinafter defined) for the Existing Notes
Noteholders (as hereinafter defined) (in such capacity, together with its
successors and assigns in such capacity, the “Existing Notes Trustee”); (b) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Existing Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Existing Notes
Trustee and the Existing Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Existing Notes Collateral
Agent”); (c) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national
banking association, in its capacity as trustee pursuant to the Interim Notes
Indenture (as hereinafter defined) for the Interim Notes Noteholders (as
hereinafter defined) (in such capacity, together with its successors and
assigns in such capacity, the “Interim Notes Trustee”); (d) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Interim Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes Trustee
and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Collateral Agent”);
(e) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association
or such other entity designated to act as trustee pursuant to the New Notes
Indenture (as hereinafter defined) for the New Notes Noteholders (as
hereinafter defined) (in such capacity, together with its successors and
assigns in such capacity, the “New Notes Trustee”) which shall become a
party to this Omnibus Agreement as of the Transition Effective Date (as
hereinafter defined);  (f) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association or such other
entity designated to act as collateral agent under the New Notes Indenture for
the benefit of the New Notes Trustee and the New Notes Noteholders (in such
capacity, together with its successors and assigns in such capacity, the “New
Notes Collateral Agent”) which shall become a party to this Omnibus
Agreement as of the Transition Effective Date (as hereinafter defined); (g) each
additional Person from time to time  party hereto
acting as authorized representative for the Additional Secured Parties of the Series of
Secured Debt with respect to which it is acting in such capacity; and (h) FIBERTOWER
CORPORATION, a Delaware corporation (the “Company”), FIBERTOWER NETWORK
SERVICES CORP., a Delaware corporation, ART LEASING, INC., a Delaware
corporation, TELIGENT SERVICES ACQUISITION, INC., a Delaware corporation, ART
LICENSING CORP., a Delaware corporation, and FIBERTOWER SOLUTIONS CORPORATION,
a Delaware corporation.


 


W I T N E S S E T H:


 


WHEREAS, the Company, the
Guarantors named therein, and the Existing Notes Trustee have entered into the
Indenture, dated as of November 9, 2006, (as such Indenture may be
amended, modified, supplemented, extended, renewed, restated or refinanced, the
“Existing Notes Indenture”) governing the 9.00% Convertible Senior
Secured Notes due 2012 (such notes, the “Existing Notes”) issued by the
Company to the Existing Notes Noteholders;


 

















 


WHEREAS, on the date hereof
the Company, the Guarantors named therein (the “Guarantors”), and the
Interim Notes Trustee have entered into the Indenture, dated as of December 7,
2009, (as such Indenture may be amended, modified, supplemented, extended,
renewed, restated or refinanced, the “Interim Notes Indenture”)
governing the 9.00% Mandatorily Redeemable Convertible Senior Secured Notes due
2012 (such notes, including the Initial Notes and any Additional Notes (each as
defined in the Interim Notes Indenture), the “Interim Notes”) issued by
the Company to the Interim Notes Noteholders (as defined in the Interim ICA
defined below);


 


WHEREAS, after the date
hereof the Company and the Guarantors may, subject to the terms of the Secured
Indebtedness Documents (as defined in the Interim Notes Indenture), and upon
the mandatory redemption of the Interim Notes, enter into an Indenture (as such
Indenture may be amended, modified, supplemented, extended, renewed, restated
or refinanced, the “New Notes Indenture” and together with the Interim
Notes Indenture, the “Indentures”) governing certain 9.00% Senior
Secured Notes (such notes, including the Initial Notes and any Additional Notes
(each, as defined in the New Notes Indenture), the “New Notes”) issued
by the Company to the New Notes Noteholders (as defined in the New ICA defined
below);


 


WHEREAS, after the date
hereof, the Company and the Guarantors named in each Indenture, as applicable,
may, subject to the terms of the “Secured Indebtedness Documents” as defined in
the applicable Indentures, enter into a “Working Capital Facility” as defined
in the applicable Indentures (as such agreement may be amended, modified,
supplemented, extended, renewed, restated or refinanced, the “Working
Capital Facility Agreement”) under agreements evidencing such “Working
Capital Facility Indebtedness” as defined in the applicable Indentures, which
the Company desires to secure on a senior basis to the Interim Notes Liens (as
defined in the Interim ICA defined below) and the Pari Passu Indebtedness Liens
(as defined in the Interim ICA defined below), and on a partially senior basis
to and partially pari passu basis with the Note Liens (as defined in the New
Notes Indenture), such that the Working Capital Facility Indebtedness as
defined in the applicable Indenture shall be permitted to be secured by the
Working Capital Facility Collateral (as defined in the applicable Indenture) if
(x) the Secured Indebtedness Documents as defined in the applicable
Indenture, do not prohibit such Working Capital Facility Indebtedness from
being secured by the Working Capital Facility Collateral and (y) the
Working Capital Facility Collateral Agent as defined in the applicable
Indenture, for itself and on behalf of the lenders party to such Working
Capital Facility Agreement, executes and delivers a joinder hereto and becomes
a party to this Omnibus Agreement in accordance with Section 2.3
hereof.


 


WHEREAS, after the date
hereof, the Company may, subject to the terms and conditions of the Secured
Indebtedness Documents (as defined in the Interim Notes Indenture), incur
additional indebtedness that is pari
passu with the Interim Notes Indebtedness (the “Pari Passu Indebtedness”, as hereinafter
further defined) under agreements evidencing such Pari Passu Indebtedness,
which the Company desires to secure on a pari
passu basis with the Interim Notes Liens (as defined in the Interim ICA
defined below), but junior and subordinate to the Working Capital Facility
Liens (as defined in the Interim ICA) and senior to the Existing Notes Liens
(as defined in the Interim ICA defined below). 
Such Pari Passu Indebtedness shall be permitted to be secured by the
Pari Passu Collateral (such term is as defined in the Interim ICA defined
below) if (x) the Secured Indebtedness Documents (as defined in the
Interim Notes Indenture) do 


 


2

















 


not
prohibit such Pari Passu Indebtedness from being secured by the Pari Passu
Collateral and (y) the Pari Passu Collateral Agent (such term is used
herein as defined in the Interim ICA defined below), for itself and on behalf
of the Pari Passu Lenders (such term is used herein as defined in the Interim
ICA defined below), executes and delivers a joinder hereto and becomes a party
to this Omnibus Agreement in accordance with Section 2.3 hereof.


 


WHEREAS, certain of the
Existing Notes Noteholders have agreed to exchange Existing Notes held by such
Existing Notes Noteholders for the Interim Notes, and in connection therewith
Existing Notes Noteholders of at least a majority in aggregate principal amount
of the Existing Notes outstanding voting as a single class have agreed to enter
into this Omnibus Agreement; and


 


WHEREAS, it is a condition
precedent to the issuance by the Company of the Interim Notes that the Existing
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes Trustee,
the Interim Notes Collateral Agent, the Company and the Guarantors enter into
this Omnibus Agreement;


 


NOW, THEREFORE, in
consideration of the foregoing, the mutual covenants and obligations herein set
forth and for other good and valuable consideration, the adequacy and receipt
of which are hereby acknowledged, and in reliance upon the representations,
warranties and covenants herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:


 


Section 1. Definitions.  Unless otherwise specifically stated herein
(including through the Transition Incorporation), any capitalized terms used in
this Omnibus Agreement which are not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Interim Notes Indenture then
in effect, unless and until the occurrence of the Transition Effective Date
(defined below) in which case such defined terms are used herein as defined in
the New Notes Indenture then in effect.


 


Section 2. Effectiveness.


 


2.1           Initial Effectiveness.


 


(a)           This
Omnibus Agreement shall become effective as of the date first written above
(the “Initial Effective Date”) when each of the Company, the Guarantors,
the Existing Notes Trustee, the Existing Notes Collateral Agent, the Interim
Notes Trustee and the Interim Notes Collateral Agent shall have executed a
counterpart of this Omnibus Agreement and delivered a copy thereof to the
Interim Notes Trustee.


 


(b)           As
of the Initial Effective Date, the parties to this Omnibus Agreement shall
enter into the Amended and Restated Intercreditor Agreement in the form of Exhibit A attached
hereto (the “Interim ICA”).


 


2.2           Transition Effectiveness.


 


(a)           The
“Transition Effective Date” shall be the first date on which all of the
following conditions have been satisfied: 
(x) the occurrence of a Mandatory Redemption (as


 


3

















 


defined
in Section 3.11 of the Interim Notes Indenture) and receipt by the Company
of written confirmation from the Interim Notes Trustee that the Interim Notes
Indenture has been discharged in accordance with Section 13.01 thereof, (y) the
initial issuance of any New Notes in accordance with the terms of the New Notes
Indenture, and (z) the execution by the New Notes Trustee and the New
Notes Collateral Agent of a joinder agreement in the form of Exhibit C attached
hereto and their each becoming a party to this Omnibus Agreement as
contemplated by the New Notes Indenture.


 


(b)           Upon
the occurrence of the Transition Effective Date, automatically and without the
requirement of any further action on the part of any party hereto, (x) the
Interim ICA shall cease to be in effect and shall terminate in its entirety
(except for those agreements in the Interim ICA which, by their express terms,
survive termination), and (y) all of the provisions of Exhibit B attached
hereto shall be incorporated herein, and each reference in this Omnibus
Agreement to “this Omnibus Agreement”, “hereunder”, “hereof” or words of like
import referring to this Omnibus Agreement and each reference in the Existing
Notes Indenture, the Interim Notes Indenture, the New Notes Indenture, the
Working Capital Facility Agreement, the documents evidencing or governing the
Pari Passu Indebtedness, and all other related documents and instruments, to
the “Intercreditor Agreement” (or to the “Amended and Restated Intercreditor
Agreement”, to the “Omnibus Intercreditor Agreement” or to a like term in
reference to this Omnibus Agreement), “thereunder”, “thereof” or words of like
import referring to this Omnibus Agreement shall mean and be a reference to
this Omnibus Agreement subject to such incorporation of the provisions of Exhibit B
(the “Transition Incorporation”; this Omnibus Agreement giving effect to
such Transition Incorporation, the “New ICA”).  This Omnibus Agreement shall continue to be
in full force and effect and binding on all parties hereto through and after
the Transition Effective Date (and, for the avoidance of doubt, from and after
the Transition Effective Date the provisions of Exhibit B as incorporated herein
shall be in full force and effect and binding on all parties hereto).


 


2.3           Effectiveness
as to Additional Parties.  Other than
the parties whose execution and delivery of a counterpart hereof is a condition
to the Initial Effective Date or the Transition Effective Date (which execution
and delivery are contemplated by Sections 2.1 and 2.2), each party hereto
shall, by executing and delivering to the Interim Notes Trustee (prior to the
Transition Effective Date) or to the New Notes Trustee (on or after the
Transition Effective Date) a joinder agreement in substantially the form of Exhibit C attached hereto,
become a party hereto and bound by this Omnibus Agreement.  Each such party becoming a party hereto prior
to the Transition Effective Date shall also execute and deliver a joinder
agreement to, and become a party to and bound by, the Interim ICA.


 


Section 3. Covenants.


 


3.1           Further Assurances.


 


(a)           The
Existing Notes Trustee and the Existing Notes Collateral Agent each agrees
that, at the sole cost and expense of the Company, it shall, at any time and
from time to time upon the request of the Interim Notes Trustee (prior to the
Transition Effective Date) or the New Notes Trustee (on or after the Transition
Effective Date), promptly take such further action and execute and deliver such
additional documents and instruments (including without limitation


 


4

















 


a
ratification of its obligations hereunder, and taking any actions pursuant to Section 3.1(b),
and in each case in recordable form, if requested) as the Interim Notes Trustee
or New Notes Trustee may reasonably request to effectuate the terms of this
Omnibus Agreement.


 


(b)           Each
party hereto agrees that it shall, at any time and from time to time upon the
request of the Interim Notes Trustee (prior to the Transition Effective Date)
or the New Notes Trustee (on or after the Transition Effective Date), promptly enter
into, and execute and deliver to the Interim Notes Trustee or the New Notes
Trustee, as applicable, a joinder agreement in the form provided in the Interim
ICA (prior to the Transition Effective Date) or in the form provided in the New
ICA (on or after the Transition Effective Date), and take such further action
and execute and deliver such additional documents and instruments (in
recordable form, if requested) as the Interim Notes Trustee or New Notes
Trustee may reasonably request to effectuate the terms of the Interim ICA or
New ICA then in effect.  Each party
hereto further agrees that it shall, at any time and from time to time on or
after the Transition Effective Date, upon the request of the New Notes Trustee
(on or after the Transition Effective Date), promptly enter into, and execute
and deliver to the New Notes Trustee a counterpart of, an intercreditor
agreement substantially in the form of Exhibit B, and take such further
action and execute and deliver such additional documents and instruments (in
recordable form, if requested) as the New Notes Trustee may reasonably request
to effectuate the terms of such intercreditor agreement.  Notwithstanding whether any such request is made
or complied with, this Omnibus Agreement shall be effective as to, and binding
upon, all parties hereto.


 


(c)           The
Interim Notes Collateral Agent agrees that, upon the Transition Effective Date,
it shall (i) promptly deliver, or cause any third party holding Collateral
(as defined in the Interim Notes Indenture) on its behalf to deliver, the
remainder of the Collateral, if any, in its possession to the designee of the
New Notes Collateral Agent (except as may otherwise be required by applicable
law or court order), and (ii) promptly take such further action and
execute and deliver such additional documents and instruments (in recordable
form, if requested) as the New Notes Trustee may reasonably request to ensure
that the New Notes Collateral Agent has possession of, or “control” (as defined
in the UCC) over, such of the Collateral as is necessary or appropriate to
effect the purposes of the New Notes Indenture and the Note Documents (as
defined in the New Notes Indenture).


 


Section 4. Indemnification.  The Company and the Guarantors party hereto,
jointly and severally, hereby agree to indemnify and hold harmless Wells Fargo
Bank, National Association (or such other entity as may be designated as
contemplated by clauses (e) and (f) of the recitals hereto), in its
capacity as Existing Notes Trustee, Existing Note Collateral Agent, Interim
Notes Trustee, Interim Notes Collateral Agent, New Notes Trustee, or New Notes
Collateral Agent, as applicable, and the Pari Passu Collateral Agent and the
Working Capital Facility Collateral Agent, and in each case their respective
directors, officers, employees, agents, successors and assigns, against and
from any and all claims, actions, liabilities, costs and expenses of any kind
or nature whatsoever (including reasonable fees and disbursements of counsel,
costs and expenses of defending themselves against or investigating any claim
or liability and of complying with any process served upon them or any of their
employees, officers or agents in connection with the exercise or performance of
any of their powers or duties under this Omnibus Agreement or any Collateral
Agreement) that may be imposed on, incurred by, or asserted against any of
them, in any way relating to or arising out of this Omnibus Agreement or any


 


5

















 


Collateral Agreement, any
exercise of remedies hereunder or any other action taken or omitted by them
hereunder, except to the extent a court holds in final and nonappealable
judgment that such claims, actions, liabilities, costs and expenses directly
resulted from the gross negligence or willful misconduct of such indemnified
Persons.  The provisions of this Section 4
shall survive termination of this Omnibus Agreement and the discharge or
satisfaction of any of the Indentures.


 


Section 5. Governing
Law.  This Omnibus Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York applicable to contracts made and performed in such state and
any applicable laws of the United States of America.


 


Section 6. Binding
on Successors and Assigns.  This
Omnibus Agreement shall be binding upon the Existing Notes Trustee, the Interim
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes
Collateral Agent, the Holders, each other party that hereafter joins this
Omnibus Agreement (including but not limited to the New Notes Trustee, the New
Notes Collateral Agent, Working Capital Facility Collateral Agent, the Working
Capital Facility Lenders, the Pari Passu Collateral Agent, the Pari Passu
Lenders), and in each case, their respective permitted successors and assigns.


 


Section 7. Counterparts.
 This Omnibus Agreement may be executed
in one or more counterparts, each of which shall be an original and all of
which shall together constitute one and the same document.  Delivery of an executed counterpart of this
Omnibus Agreement by facsimile or electronic transmission shall be equally as
effective as delivery of an original executed counterpart of this Omnibus
Agreement.  Any party delivering an
executed counterpart of this Omnibus Agreement by facsimile or electronic
transmission also shall deliver an original executed counterpart of this
Omnibus Agreement, but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this
Omnibus Agreement.


 


Section 8. Amendments,
Etc..  No amendment, modification,
waiver or termination of any of the provisions of this Omnibus Agreement shall
be deemed to be made or effective unless the same shall be in writing signed by
each of the parties at such time party hereto.


 


Section 9. Direction
by Majority Holders.  In accordance
with the Interim Notes Indenture, Holders of a majority in principal amount of
the then outstanding Interim Notes may direct the exercise of all powers and
remedies conferred on or available to the Interim Notes Trustee hereunder
(including without limitation the right to make requests on the Existing Notes
Trustee, the Existing Notes Collateral Agent or any other party hereto,
pursuant to Section 3.1 or otherwise).  In accordance with the New Notes Indenture,
Holders of a majority in principal amount of the then outstanding New Notes may
direct the exercise of all powers and remedies conferred on or available to the
New Notes Trustee hereunder (including without limitation the right to make
requests on the Existing Notes Trustee, the Existing Notes Collateral Agent or
any other party hereto, pursuant to Section 3.1 or otherwise).  However, in accordance with the terms of each
Indenture (including, without limitation, Article 7, Article 8, Article 10
and Article 11), the Interim Notes Trustee or the New Notes Trustee, as
the case may be, may refuse to follow any direction that conflicts with law or
the applicable Indenture, this Omnibus Agreement, or the


 


6

















 


Collateral
Agreements that such Interim Notes Trustee or New Notes Trustee determines may
be unduly prejudicial to the rights of other Holders or that may involve the
Interim Notes Trustee or New Notes Trustee in personal liability or
expense.  In addition, all powers and
remedies conferred on or available to the Interim Notes Trustee or New Notes
Trustee pursuant to Section 3 hereof, constituting rights to make requests
on the Existing Notes Trustee, the Existing Notes Collateral Agent or any other
party hereto, may (without prejudice to the foregoing) be exercised by Holders
of a majority in principal amount of the then outstanding Interim Notes or New
Notes, as applicable, acting directly and not through the Interim Notes Trustee
or New Notes Trustee.


 


Section 10. MUTUAL WAIVER
OF JURY TRIAL.  THE PARTIES
HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH,
THIS OMNIBUS AGREEMENT OR THE TRANSACTIONS RELATED THERETO.


 


[The remainder of this page has been
intentionally left blank.]


 


7

















 


IN WITNESS WHEREOF, the parties hereto have executed this
Omnibus Agreement as of the date first written above.


 


 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, as Existing Notes Trustee and Existing Notes Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Patrick T. Giordano

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, as Interim Notes Trustee and Interim Notes Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Patrick T. Giordano

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER CORPORATION

  
	
   

  	
  FIBERTOWER NETWORK SERVICES CORP.

  
	
   

  	
  ART LEASING, INC.

  
	
   

  	
  ART LICENSING CORP.

  
	
   

  	
  TELIGENT SERVICES ACQUISITION, INC.

  
	
   

  	
  FIBERTOWER SOLUTIONS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Thomas A. Scott

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  185 Berry St., Suite 400

  
	
   

  	
  San Francisco, CA 94107

  
	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
  Telecopy No.: (415) 659-0007

  
	
   

  	
  Email Address: tscott@fibertower.com

  



 
















 


EXHIBIT A


 


AMENDED AND RESTATED INTERCREDITOR
AGREEMENT


 


This AMENDED AND RESTATED
INTERCREDITOR AGREEMENT, dated as of
[                ]
[    ], 2009, is entered into by and among (a) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as trustee pursuant to the Existing Notes Indenture (as hereinafter
defined) for the Existing Notes Noteholders (as hereinafter defined) (in such
capacity, together with its successors and assigns in such capacity, the “Existing
Notes Trustee”); (b) WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, in its capacity as collateral agent pursuant to
the Existing Notes Collateral Agreements (as hereinafter defined) for the
benefit of the Existing Notes Trustee and the Existing Notes Noteholders (in
such capacity, together with its successors and assigns in such capacity, the “Existing
Notes Collateral Agent”); (c) WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, in its capacity as trustee pursuant to the
Interim Notes Indenture (as hereinafter defined) for the Interim Notes
Noteholders (as hereinafter defined) (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Trustee”); (d) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Interim Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes
Trustee and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Collateral Agent”);
(e) each additional AUTHORIZED REPRESENTATIVE from time to time  party hereto for the Additional Secured Parties of the Series of
Secured Debt with respect to which it is acting in such capacity; and (f) FIBERTOWER
CORPORATION, a Delaware corporation, FIBERTOWER NETWORK SERVICES CORP., a
Delaware corporation, ART LEASING, INC., a Delaware corporation, TELIGENT
SERVICES ACQUISITION, INC., a Delaware corporation, ART LICENSING CORP., a
Delaware corporation, and FIBERTOWER SOLUTIONS CORPORATION, a Delaware
corporation.


 


W I T N E S S E T H:


 


WHEREAS, the Company (as
hereinafter defined), the Guarantors (as hereinafter defined) and the Existing
Notes Trustee have entered into the Indenture, dated as of November 9,
2006, (as such Indenture may be amended, modified, supplemented, extended,
renewed, restated or refinanced, the “Existing Notes Indenture”)
governing the 9.00% Convertible Senior Secured Notes due 2012 (such notes,
the “Existing Notes”) issued by the Company to the Existing Notes
Noteholders;


 


WHEREAS, on the date hereof
the Company, the Guarantors and the Interim Notes Trustee have entered into the
Indenture, dated as of December 7, 2009, (as such Indenture may be
amended, modified, supplemented, extended, renewed, restated or refinanced, the
“Interim Notes Indenture”) governing the 9.00% Mandatorily
Redeemable Convertible Senior Secured Notes due 2012 (such notes, including the
Initial Interim Notes and any Additional Interim Notes (each, as defined
below), the “Interim Notes”) issued by the Company to the Interim Notes
Noteholders (as defined below);


 

















 


WHEREAS, after the date
hereof, the Company and the Guarantors may, subject to the terms of the Secured
Debt Documents enter into a Working Capital Facility (as defined below) (as
such agreement may be amended, modified, supplemented, extended, renewed,
restated or refinanced, the “Working Capital Facility Agreement”) under
agreements evidencing such Working Capital Facility Indebtedness, which the
Company desires to secure on a senior basis to the Notes Liens and the Pari
Passu Liens.  The Working Capital
Facility Indebtedness (as defined below) shall be permitted to be secured by
the Working Capital Facility Collateral (as defined below) if (x) the
Secured Debt Documents do not prohibit such Working Capital Facility
Indebtedness from being secured by the Working Capital Facility Collateral and (y) the
Working Capital Facility Collateral Agent, for itself and on behalf of the
lenders party to such Working Capital Facility Agreement, execute and deliver a
joinder agreement hereto and become a party to this Agreement pursuant to the
requirements of Section 8.7 hereof.


 


WHEREAS, after the date
hereof, the Company may, subject to the terms and conditions of the Secured
Debt Documents, incur additional indebtedness that is pari passu with the Interim Notes Indebtedness (the “Pari
Passu Indebtedness”, as
hereinafter further defined) under agreements evidencing such Pari Passu
Indebtedness, which the Company desires to secure on a pari passu basis with the Interim Notes Liens (but junior and
subordinate to the Working Capital Facility Liens and senior to the Existing
Notes Liens).  Such Pari Passu
Indebtedness shall be permitted to be secured by the Pari Passu Collateral if (x) the
Secured Debt Documents do not prohibit such Pari Passu Indebtedness from being
secured by the Pari Passu Collateral and (y) the Pari Passu Collateral
Agent, for itself and on behalf of the Pari Passu Lenders (as hereinafter
defined) execute and deliver a joinder agreement hereto and become a party to
this Agreement pursuant to the requirements of Section 8.7 hereof.


 


WHEREAS, certain of the
Existing Notes Noteholders have agreed to exchange Existing Notes held by such
Existing Notes Noteholders for the Initial Interim Notes, and in connection
therewith Existing Notes Noteholders of at least a majority in aggregate
principal amount of the Existing Notes outstanding voting as a single class
have agreed to amend and restate the form of Intercreditor Agreement attached
as Exhibit G to the Existing Notes Indenture in its entirety pursuant to
this Agreement; and


 


WHEREAS, it is a condition
precedent to the issuance by the Company of the Interim Notes that the Existing
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes Trustee,
the Interim Notes Collateral Agent, the Company and the Guarantors enter into
this Agreement;


 


NOW, THEREFORE, in
consideration of the foregoing, the mutual covenants and obligations herein set
forth and for other good and valuable consideration, the adequacy and receipt
of which are hereby acknowledged, and in reliance upon the representations,
warranties and covenants herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:


 


Section 1. Definitions.
 Unless otherwise specifically stated,
any capitalized terms used in this Agreement which are not otherwise defined
herein shall have the respective meanings ascribed to such terms in the
Indentures then in effect or, if the Indentures define the same term
differently, in the Interim Notes Indenture as then in effect.  As used in this Agreement, the


 


2

















 


following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and the
plural form of the terms indicated):


 


“Additional Interim Notes”
means the aggregate principal amount of Interim Notes (other than the Initial
Interim Notes) issued under the Interim Notes Indenture (i) in lieu of
interest payment on the Initial Interim Notes as permitted by Section 5.09
of the Interim Notes Indenture and paragraph “1. Interest” in the form of
Interim Note attached as Exhibit A thereto or (ii) subject to
the satisfaction of all of the covenants in the Interim Notes Indenture,
including, without limitation, Sections 5.09 and 5.12 of the
Interim Notes Indenture, in each case in the form of Exhibit A
thereto, as part of the same series as the Initial Interim Notes.


 


“Additional Secured
Parties” means, with respect to the Working Capital Facility Indebtedness
and the Pari Passu Indebtedness, the holders of such Indebtedness, any trustee
or agent therefor under any related promissory notes, indentures, collateral
documents or other operative agreements evidencing or governing such
Indebtedness, in each case, as amended, restated, refinanced or otherwise
modified from time to time, but shall not include the Obligors.


 


“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 definition,
“control,” 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 beneficial ownership of 10% or more of
the Voting Stock of a Person will be deemed to be control.  For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.


 


“Agreement” means
this Amended and Restated Intercreditor Agreement, as amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof.


 


“asset” means any
asset or property (tangible and intangible).


 


“Asset Sale” means in
a single transaction or a series of related transactions:  (i) the sale, lease, conveyance or other
disposition of any assets or rights (including by way of a sale and leaseback
transaction), other than the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole; and (ii) the issuance or sale of Equity
Interests of any of the Company’s Restricted Subsidiaries or the sale of Equity
Interests in any of the Company’s Subsidiaries. 
For purposes of this definition, the term “Asset Sale” shall not
include:


 


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


 


(2)           a transfer of assets between
or among the Company and its wholly-owned Guarantors;


 


(3)           an issuance of Equity Interests
by a Restricted Subsidiary of the Company to the Company or to a wholly-owned
Guarantor;


 


3

















 


(4)           the sale or lease of
products, services or accounts receivable in the ordinary course of business or
equipment or other assets pursuant to a program for the maintenance or
upgrading of such equipment or assets including, without limitation, the
disposition of equipment that is worn out or obsolete; and


 


(5)           the sale or other
disposition of cash or Cash Equivalents.


 


“Authorized Representative” means (i) in
the case of any Working Capital Facility Obligations, the Working Capital
Facility Collateral
Agent on its own behalf and on behalf of the Working Capital
Facility Lenders, (ii) in the case of the Existing Notes Obligations, the
Existing Notes Collateral Agent on its own behalf and on behalf of the Existing
Notes Noteholders, (iii) in the case of the Interim Notes Obligations, the
Interim Notes Collateral Agent on its own behalf and on behalf of the Interim
Notes Noteholders, and (iv) in the case of the Pari Passu Obligations, the
Pari Passu Collateral Agent on its own behalf and on behalf of the Pari Passu
Lenders.


 


“Bankruptcy Code”
means Title 11 of the United States Code (11 U.S.C. 101 et seq.), as amended
from time to time, and any successor statute, or if the context so requires,
any similar federal or state law.


 


“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 Saturday, a Sunday or a day on which banking institutions
in The City of New York, New York or San Francisco, California or at a place of
payment are authorized or required by law, regulation or executive order to
remain closed.


 


“Capital Lease
Obligations” means, at the time any determination is to be made, the amount
of the liability in respect of a capital lease that would at that 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:


 


(1)           in the case of a
corporation, corporate stock;


 


(2)           in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock;


 


4

















 


(3)           in the case of a partnership
or limited liability company, partnership interests (whether general or limited)
or membership interests, respectively; and


 


(4)           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 in profits, losses or distribution of assets with Capital Stock.


 


“Cash Equivalents”
means:


 


(1)           United States dollars;


 


(2)           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 pledged in support of those securities)
having maturities of not more than twelve months from the date of acquisition;


 


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


 


(4)           repurchase obligations with
a term of not more than seven (7) days for underlying securities of the
types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;


 


(5)           commercial paper having one
of the two highest ratings obtainable from Moody’s or Standard & Poor’s
and, in each case, maturing within twelve months after the date of acquisition;
and


 


(6)           money market funds at least
95% of the assets of which constitute Cash Equivalents of the kinds described
in clauses (1) through (5) of this definition.


 


“Collateral” means
all collateral of whatsoever nature purported to be subject to the lien of any
of the Secured Debt Documents.


 


“Collateral Documents”
means, collectively, (i) the Working Capital Facility Collateral
Documents, (ii) the Notes Collateral Documents, and (iii) the Pari
Passu Collateral Documents.


 


“Company” means
FiberTower Corporation, and its successors and assigns, including, without
limitation, any receiver, trustee or debtor-in-possession on behalf of such
person or on behalf of any successor or assign.


 


“Comparable Noteholder
Collateral Document” means, in relation to any Shared Collateral subject to
any Working Capital Facility Security Document, that Noteholder Collateral


 


5

















 


Document which creates a security interest in
the same Collateral, granted by the same Obligor or Obligors.


 


“Comparable Pari Passu
Collateral Document” means, in relation to any Shared Collateral that is
also Pari Passu Collateral, subject to any Working Capital Facility Security
Document, that Pari Passu Collateral Document which creates a security interest
in the same Collateral, granted by the same Obligor or Obligors.


 


“Controlling Collateral
Agent” means, with respect to any Shared Collateral, (i) from and
after the incurrence of the Working Capital Facility Obligations until the
Discharge of Working Capital Facility Obligations, the Working Capital Facility
Collateral Agent, and (ii) until the Discharge of Interim Notes Obligations,
provided that no Working Capital Facility Obligations are outstanding, the
Primary Notes Collateral Agent.


 


“Controlling Secured Parties” means,
with respect to any Shared Collateral, the Secured Parties whose Authorized
Representative is the Controlling Collateral Agent for such Shared Collateral.


 


“Discharge of Interim
Notes Obligations” means the occurrence of all of the following:


 


(1)           payment in full in cash of
the principal of and interest and premium (if any) on all Interim Notes
Indebtedness; and


 


(2)           payment in full in cash of
all other Interim Notes Obligations that are outstanding and unpaid at the time
the Interim Notes Indebtedness is paid in full in cash (other than any
obligations for taxes, costs, indemnifications, reimbursements, damages and
other liabilities in respect of which no claim or demand for payment has been
made at such time); or


 


(3)           mandatory redemption of the
Interim Notes shall have occurred in accordance with the Interim Notes
Indenture which results in a satisfaction and discharge of the Interim Notes
Indenture, provided that the “Transition Effective Date” and “Transition
Incorporation”, each as defined in the Omnibus Intercreditor Agreement between
the parties hereto to which this Agreement is attached as Exhibit A, shall
have occurred and the “New ICA”, as so defined, shall be effective.


 


“Discharge of Working
Capital Facility Obligations” means the occurrence of all of the following:


 


(1)           termination or expiration of
all commitments to extend credit that would constitute Working Capital Facility
Indebtedness;


 


(2)           payment in full in cash of
the principal of and interest and premium (if any) on all Working Capital
Facility Indebtedness (other than any undrawn letters of credit);


 


(3)           cash collateralization (at
the lower of (i) 110% of the aggregate undrawn amount and (ii) the
percentage of the aggregate undrawn amount required for release of


 


6

















 


Liens
under the terms of the applicable Working Capital Facility Document),
expiration, termination or return to the issuing bank of all outstanding
letters of credit constituting Working Capital Facility Indebtedness; and


 


(4)           payment in full in cash of
all other Working Capital Facility Obligations that are outstanding and unpaid
at the time the Working Capital Facility Obligations are paid in full in cash
(other than any obligations for taxes, costs, indemnifications, reimbursements,
damages and other liabilities in respect of which no claim or demand for
payment has been made at such time).


 


“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 of the
Capital Stock, in whole or in part, on or prior to the date that is ninety-one
(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 does not
violate any of the Indentures then in effect.


 


“Enforcement Action”
means the commencement of any judicial or nonjudicial enforcement, collection,
execution, levy or foreclosure action or proceeding with respect to, or seeking
to have a trustee, receiver, liquidator or similar official appointed for or
over, attempting any action to take possession of, or otherwise exercising any
enforcement right, remedy or power with respect to, or otherwise taking any
action to enforce its security interest in or realize upon, or take any other
enforcement action available to it in respect of, any Shared Collateral
(including with respect to any intercreditor agreement with respect to any
Shared Collateral), whether under any Collateral Document, applicable law or
otherwise, other than as permitted in Section 3.1(b).


 


“Equally and Ratably”
means, in reference to sharing Liens or Proceeds thereof with respect to Shared
Collateral as between the Senior Subordinated Secured Parties, that such Liens
or proceeds will be allocated and distributed to the Primary Notes Collateral
Agent (for the account of the Interim Notes Noteholders) and the Pari Passu
Collateral Agent (for the account of the Pari Passu Lenders), ratably in
proportion to outstanding Obligations in respect of the Interim Notes
Indebtedness and Pari Passu Indebtedness, as applicable, when the allocation or
distribution is made.


 


“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).


 


“Existing Notes”
shall have the meaning set forth in the recitals hereto.


 


7

















 


“Existing Notes
Collateral” means all of the assets of any Obligor (other than the Capital
Stock or assets of Guarantors that hold the Company’s 24 GHz or 39 GHz FCC
Licenses), whether real, personal or mixed, with respect to which a Lien is
granted as security for any Existing Notes Obligations.


 


“Existing Notes
Collateral Agreement” means the Pledge and Security Agreement, dated as of November 9,
2006, among the Obligors party thereto and the Existing Notes Collateral Agent,
as the same may be amended, modified, supplemented, extended, renewed, or
restated from time to time.


 


“Existing Notes
Collateral Documents” means this Agreement, the Existing Notes Collateral
Agreement, the Existing Notes Mortgages, and any other document or instrument
executed and delivered at any time pursuant to any Existing Notes Document or
otherwise, pursuant to which a Lien is granted by an Obligor to secure any
Existing Notes Obligations or under which rights or remedies with respect to
any such Lien are governed, as the same may be amended, modified, supplemented,
extended, renewed, or restated from time to time.


 


“Existing Notes Documents”
means the Existing Notes Indenture, the Existing Notes, the Existing Notes
Guarantees, the Existing Notes Collateral Documents and any other agreements
governing, securing or relating to any Existing Notes Obligations.


 


“Existing Notes Guarantee”
means the guarantee by each Guarantor of the Company’s payment obligations
under the Existing Notes Indenture.


 


“Existing Notes
Indebtedness” means the $293,796,440 aggregate principal amount of Existing
Notes issued under the Existing Notes Indenture and outstanding on the date
hereof.


 


“Existing Notes Indenture”
shall have the meaning set forth in the recitals hereto.


 


“Existing Notes Lien”
means a Lien granted by an Existing Notes Collateral Document to the Existing
Notes Collateral Agent (or any other holder, or representative of holders, of
Existing Notes Obligations), at any time, upon any assets of the Company or any
Guarantor to secure Existing Notes Obligations.


 


“Existing Notes Mortgages”
means a collective reference to each mortgage, deed of trust and any other
document or instrument under which any Lien on real property owned or leased by
any Obligor is granted to secure any Existing Notes Obligations or under which
rights or remedies with respect to any such Liens are governed, as the same may
be amended, modified, supplemented, extended, renewed, or restated from time to
time.


 


“Existing Notes
Noteholders” means the Persons holding Existing Notes Indebtedness.


 


“Existing Notes Obligations”
means Existing Notes Indebtedness and all other Obligations in respect thereof.


 


“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,


 


8

















 


determined in good faith by
the Board of Directors of the Company (unless otherwise provided in the
Indentures then in effect), evidenced by a resolution delivered to the Trustee.


 


“FCC” means the U.S.
Federal Communications Commission and any successor agency that is responsible
for regulating the U.S. telecommunications industry.


 


“FCC License” means
any authorization, license or permit issued by the FCC, together with any
extensions or renewals thereof.


 


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


 


“Guarantor” means
each Domestic Restricted Subsidiary of the Company on the date hereof, and each
other Domestic Restricted Subsidiary of the Company that executes a Note
Guarantee in accordance with the provisions of the Indentures then in effect,
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 the Indentures then in effect.


 


“Hedging Obligations”
means, with respect to any Person, the obligations of such Person, incurred in
the ordinary course of business to protect against interest rate and foreign
currency exchange rate fluctuations, under:


 


(1)           interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements;


 


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


 


(3)           other agreements or
arrangements designed to protect such Person against fluctuations in currency
exchange rates or commodity prices.


 


“Indentures” means,
collectively, (i) the Existing Notes Indenture, and (ii) the Interim
Notes Indenture.


 


“Initial Interim Notes”
means $266,791,438 aggregate principal amount of Interim Notes issued under the
Interim Notes Indenture on December 7, 2009.


 


“Insolvency Proceeding”
means, as to any Person, any of the following: (a) any case or proceeding
with respect to such Person under the Bankruptcy Code or any other federal or
state bankruptcy, insolvency, reorganization, arrangement, composition or
readjustment of the obligations and Indebtedness of such Person; (b) any
proceeding seeking the appointment of any trustee, receiver, liquidator,
custodian or other insolvency official with similar powers with respect to such
Person or any of its assets; (c) any proceeding for liquidation,
dissolution or other winding up of the business of such Person; or (d) any
assignment for the benefit of creditors or any marshaling of assets of such
Person.


 


9

















 


“Interim Notes” shall
have the meaning set forth in the recitals hereto.


 


“Interim Notes Collateral”
means all of the assets of any Obligor, whether real, personal or mixed, with
respect to which a Lien is granted as security for any Interim Notes
Obligations.


 


“Interim Notes Collateral
Agreement” means the Collateral Agreement, dated as of December 7,
2009, among the Obligors party thereto and the Interim Notes Collateral Agent,
as the same may be amended, modified, supplemented, extended, renewed, or
restated from time to time.


 


“Interim Notes Collateral
Documents” means this Agreement, the Interim Notes Collateral Agreement,
the Interim Notes Mortgages, and any other document or instrument executed and
delivered at any time pursuant to any Interim Notes Document or otherwise,
pursuant to which a Lien is granted by an Obligor to secure any Interim Notes
Obligations or under which rights or remedies with respect to any such Lien are
governed, as the same may be amended, modified, supplemented, extended,
renewed, or restated from time to time.


 


“Interim Notes Documents”
means the Interim Notes Indenture, the Interim Notes, the Interim Notes
Guarantees, the Interim Notes Collateral Documents, the Interim Notes
Registration Rights Agreement and any other agreements governing, securing or
relating to any Interim Notes Obligations.


 


“Interim Notes Guarantee”
means the guarantee by each Guarantor of the Company’s payment obligations
under the Interim Notes Indenture.


 


“Interim Notes
Indebtedness” means (1) the Initial Interim Notes and the Interim
Notes Guarantees issued on December 7, 2009, and (2) any Additional
Interim Notes and Interim Notes Guarantees thereon issued pursuant to the
Indenture.


 


“Interim Notes Indenture”
shall have the meaning set forth in the recitals hereto.


 


“Interim Notes Lien”
means a Lien granted by an Interim Notes Collateral Document to the Interim
Notes Collateral Agent (or any other holder, or representative of holders, of
Interim Notes Obligations), at any time, upon any assets of the Company or any
Guarantor to secure Interim Notes Obligations.


 


“Interim Notes Mortgages”
means a collective reference to each mortgage, deed of trust and any other
document or instrument under which any Lien on real property owned or leased by
any Obligor is granted to secure any Interim Notes Obligations or under which
rights or remedies with respect to any such Liens are governed, as the same may
be amended, modified, supplemented, extended, renewed, or restated from time to
time.


 


“Interim Notes
Noteholders” means the Persons holding Interim Notes Indebtedness.


 


“Interim Notes Obligations”
means Interim Notes Indebtedness and all other Obligations in respect thereof.


 


10

















 


“Interim
Notes Registration Rights Agreement” means the registration rights
agreement, to be dated as of the date of the mandatory redemption of the
Interim Notes, among the Company, the Guarantors and the initial purchasers of
the Interim Notes identified therein, as such agreement may be amended,
modified or supplemented from time to time in accordance with its terms.


 


“Junior Secured Parties”
means, collectively, (i) the Existing Notes Collateral Agent and the
Existing Notes Noteholders, (ii) the Senior Subordinated Secured Parties,
and (iii) each other Person that from time to time holds any Existing
Notes Indebtedness, Interim Notes Indebtedness or Pari Passu Indebtedness.  At all times, the Existing Notes Collateral
Agent and the Existing Notes Noteholders shall, in relationship to the Interim
Notes Collateral Agent and the Interim Notes Noteholders, constitute Junior
Secured Parties for all purposes of this Agreement.


 


“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 UCC (or equivalent
statutes) of any jurisdiction.


 


“Liquidated Damages”
means all liquidated damages then owing pursuant to the Interim Notes
Registration Rights Agreement.


 


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


 


“Net Proceeds” means
the aggregate cash proceeds received by the Company or any of its Restricted
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), net of (1) the direct costs relating to such
Asset Sale, including, without limitation, legal, accounting and investment
banking fees, sales commissions, relocation expenses incurred as a result of
the Asset Sale, and taxes paid or payable as a result of the Asset Sale after
taking into account any available tax credits or deductions and any tax sharing
arrangements, (2) amounts required to be applied to the repayment of
Indebtedness, other than Indebtedness under a Working Capital Facility, secured
by a Lien on the asset or assets that were the subject of such Asset Sale, and (3) any
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.


 


“Non-Controlling Secured Parties”
means, with respect to any Shared Collateral, the Secured Parties that are not
Controlling Secured Parties with respect to such Shared Collateral.


 


“Noteholders” means,
collectively, (i) the Existing Notes Noteholders, and (ii) the
Interim Notes Noteholders.


 


“Notes Collateral Agent”
means Wells Fargo Bank, National Association, in its capacity as Collateral
Agent under the Notes Collateral Documents, together with any successors in
such capacity.


 


11
















 


“Notes Collateral Documents” means,
collectively, (i) the Existing Notes Collateral Documents, and (ii) the
Interim Notes Collateral Documents.


 


“Notes Documents” means, collectively, (i) the
Existing Notes Documents, and (ii) the Interim Notes Documents.


 


“Notes Indebtedness” means, collectively, (i) the
Existing Notes Indebtedness, and (ii) the Interim Notes Indebtedness.


 


“Notes Obligations” means, collectively,
Obligations in respect of (i) the Existing Notes Indebtedness, and (ii) Interim
Notes Indebtedness.


 


“Obligations” means (1) with respect to
Existing Notes Indebtedness, any principal, premium, if any, accrued and unpaid
interest, monetary penalty, or damages, due by the Company or any Guarantor
under the terms of the Existing Notes or the Existing Notes Indenture, (2) with
respect to Interim Notes Indebtedness, any principal, premium, if any, accrued
and unpaid interest, including Liquidated Damages, if any, or monetary penalty,
or damages, due by the Company or any Guarantor under the terms of the Interim
Notes or the Interim Notes Indenture, (3) with respect to Working Capital
Facility Indebtedness, any principal (including reimbursement obligations with
respect to letters of credit whether or not drawn), interest (including, to the
extent legally permitted, all interest accrued thereon after the commencement
of any insolvency or liquidation proceeding at the rate, including any
applicable post-default rate, specified in the Working Capital Facility
Documents, even if such interest is not enforceable, allowable or allowed as a
claim in such proceeding), premium (if any), fees, indemnifications,
reimbursements, expenses and other liabilities payable by the Company or any
guarantor of the Working Capital Facility Indebtedness and (4) with
respect to Pari Passu Indebtedness, any principal (including reimbursement
obligations with respect to letters of credit whether or not drawn), interest
(including, to the extent legally permitted, all interest accrued thereon after
the commencement of any insolvency or liquidation proceeding at the rate,
including any applicable post-default rate, specified in the Pari Passu
Indebtedness Documents, even if such interest is not enforceable, allowable or
allowed as a claim in such proceeding), premium (if any), fees, indemnifications,
reimbursements, expenses and other liabilities payable by the Company or any
guarantor of the Pari Passu Indebtedness.


 


“Obligor” means the Company and any
Guarantor.


 


“Officer” means, with respect to any Person,
the Chairman of the Board, the Vice Chairman 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 an Officer of the Company, who must be the
Chief Executive Officer, the Chief Financial Officer, the Treasurer or the
Chief Accounting Officer of the Company.


 


“Pari Passu Collateral” means all of the
assets of any Obligor (other than the Capital Stock or assets of Guarantors
that hold the Company’s 24 GHz or 39 GHz FCC Licenses),


 


12

















 


whether real, personal or
mixed, with respect to which a Lien is granted as security for any Pari Passu
Obligations.


 


“Pari Passu Collateral Agent” means, at any
time, the Person serving at such time as the “Collateral Agent” under the
agreement governing any Pari Passu Indebtedness or any other representative
then most recently designated in accordance with the applicable provisions of
any such agreement, together with its successors in such capacity.


 


“Pari Passu Collateral Documents” means this
Agreement and any other document or instrument executed and delivered at any
time pursuant to any Pari Passu Indebtedness Document or otherwise, pursuant to
which a Lien is granted by an Obligor to secure any Pari Passu Obligations or
under which rights or remedies with respect to any such Lien are governed, as
the same may be amended, modified, supplemented, extended, renewed, or restated
from time to time.


 


“Pari Passu Indebtedness” means Indebtedness
permitted by clause (2) of the second paragraph of Section 5.09
of the Interim Notes Indenture.


 


“Pari Passu Indebtedness Cap” means the
principal amount outstanding under any Pari Passu Indebtedness in an aggregate
principal amount not to exceed $250.0 million.


 


“Pari Passu Indebtedness Documents” means the
Pari Passu Collateral Documents, and any other documents, instruments and
agreements executed by or on behalf of any Obligor which is or becomes a party
to any Pari Passu Indebtedness Document and delivered to or for the Pari Passu
Collateral Agent, securing or relating to any Pari Passu Obligations, and any
other transaction contemplated by the Pari Passu Indebtedness Documents, all as
amended, restated, supplemented or modified from time to time.


 


“Pari Passu Lenders” means the Persons
holding Pari Passu Indebtedness, including, without limitation, the Pari Passu
Collateral Agent.


 


“Pari Passu Lien” means a Lien granted to the
Pari Passu Collateral Agent (or any other holder, or representative of holders,
of Pari Passu Indebtedness), at any time, upon any assets of the Company or any
Guarantor to secure the Pari Passu Obligations.


 


“Pari Passu Obligations” means the Pari Passu
Indebtedness and all other Obligations in respect Pari Passu Indebtedness.


 


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


 


“Primary Notes Collateral Agent” means the
Interim Notes Collateral Agent, together with any successors in such capacity.


 


“Proceeds” shall have the meaning set forth
in Section 4.1.


 


13

















 


“Qualified Indemnification Claim” means any
claim for indemnification which the Working Capital Facility Collateral Agent
or any Working Capital Facility Lender has against any Obligor pursuant to the
indemnification obligations of the Company and the other Obligors under the
Working Capital Facility Documents as set forth in the Indemnification Claim
Notice (as defined below); provided, that (a) within five (5) Business
Days following delivery by the Notes Collateral Agent or the Pari Passu
Collateral Agent, as applicable, of an Exercise Notice (as defined herein), the
Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, is
provided with (i) a reasonably detailed description of such claim,
including the approximate amount (if any) of such claim, if known (the “Indemnification
Claim Notice”), and (ii) copies of all correspondence, if any, with
any Obligor in respect of such claim, or notices, if any, delivered to any Obligor
in respect of such claim, and (b) promptly following a request therefor by
the Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, on or
after the date on which the Exercise Notice is delivered by the Notes
Collateral Agent or Pari Passu Collateral Agent, as applicable, deliver such
other information as may be reasonably requested by the Notes Collateral Agent
or Pari Passu Collateral Agent, as applicable, in respect of such claim to the
extent that the Working Capital Facility Collateral Agent or any Working
Capital Facility Lender has such information in its actual possession or
control.


 


“refinance” means to refinance, repay,
prepay, replace, renew or refund.


 


“Required Noteholders” means, as applicable, (i) in
the case of the Existing Notes Indenture, the holders of an aggregate principal
amount of all Existing Notes Indebtedness (or portion thereof) then outstanding
required to approve any amendment or modification of the Existing Notes
Documents, or any termination or waiver of any provision of the Existing Notes
Documents, or any consent or departure by any of the Obligors therefrom, and (ii) in
the case of the Interim Notes Indenture, the holders of an aggregate principal
amount of all Interim Notes Indebtedness (or portion thereof) then outstanding
required to approve any amendment or modification of the Interim Notes
Documents, or any termination or waiver of any provision of the Interim Notes
Documents, or any consent or departure by any of the Obligors therefrom.  For purposes of this definition, Notes
Indebtedness registered in the name of, or beneficially owned by, any Obligor
or any of its Affiliates will be deemed not to be outstanding.


 


“Required Pari Passu Lenders” means, as
applicable, the holders of an aggregate principal amount of all Pari Passu
Indebtedness then outstanding required to approve any amendment or modification
of a Pari Passu Indebtedness Document, or any termination or waiver of any
provision of a Pari Passu Indebtedness Document, or any consent or departure by
any of the Obligors therefrom. For purposes of this definition, Pari Passu
Indebtedness registered in the name of, or beneficially owned by, any Obligor
or any of its Affiliates will be deemed not to be outstanding.


 


“Required Working Capital Facility Lenders”
means, as applicable, those Working Capital Facility Lenders required under the
terms of the Working Capital Facility Documents to approve any amendment or
modification of a Working Capital Facility Document, or any termination or
waiver of any provision of a Working Capital Facility Document, or any consent
or departure by any of the Obligors therefrom.


 


14

















 


“Restricted Subsidiary” of any Person means
any Subsidiary of such Person which at the time of determination is not an
Unrestricted Subsidiary.


 


“Secured Debt Documents” means, collectively,
the Notes Documents, the Working Capital Facility Documents and any Pari Passu
Indebtedness Documents.


 


“Secured Parties” means, collectively, (i) the
Working Capital Facility Collateral Agent and the Working Capital Facility
Lenders, (ii) the Existing Notes Collateral Agent, the Existing Notes
Trustee, and the Existing Notes Noteholders, (iii) the Interim Notes
Collateral Agent, the Interim Notes Trustee and the Interim Notes Noteholders,
and (iv) the Pari Passu Collateral Agent and the Pari Passu Lenders.


 


“Senior Indebtedness” means, collectively, (i) Working
Capital Facility Indebtedness, (ii) the Interim Notes Indebtedness, and (iii) the
Pari Passu Indebtedness.


 


“Senior Subordinated Secured Parties” means,
collectively, (i) the Interim Notes Collateral Agent and the Interim Notes
Noteholders, (ii) the Pari Passu Collateral Agent and the Pari Passu
Lenders, and (iii) each other Person that from time to time holds such
Obligations.


 


“Series of Secured Debt” means,
severally, each of Working Capital Facility Indebtedness, Notes Indebtedness
and the Pari Passu Indebtedness.


 


“Shared Collateral” means Collateral that
secures each of the Working Capital Facility Obligations, the Notes Obligations
and any Pari Passu Obligations, provided that the Shared Collateral with
respect to Existing Notes Indebtedness and Pari Passu Indebtedness shall not
include the assets and Capital Stock of Guarantors that hold the Company’s 24
GHz or 39 GHz FCC Licenses.


 


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


 


“Subsidiary” means, with respect to any
specified Person:


 


(1)           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


 


(2)           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 such Person or of one
or more Subsidiaries of such Person (or any combination thereof).


 


“Trustee” shall include, in addition to the
Existing Notes Trustee and Interim Notes Trustee referred to in the recitals
hereto, the then acting collateral agent under the Indentures then in effect
and any successor thereto exercising substantially the same rights and powers,
or if 


 


15

















 


there is no acting
collateral agent under the Indentures then in effect, the Noteholders holding a
majority in principal amount of Notes Indebtedness then outstanding.


 


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


 


“Unrestricted Subsidiary” means any
Subsidiary of the Company that is designated by the Board of Directors of the
Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of
Directors, but only to the extent such Subsidiary:


 


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


 


(2)           except as permitted by Section 5.11 to
the Indentures, is not a party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary other than
those that might be obtained at the time from Persons who are not Affiliates of
the Company or any Restricted Subsidiary;


 


(3)           is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (A) to subscribe for additional Equity Interests or (B) to
maintain or preserve such Person’s financial condition or to cause such Person
to achieve any specified levels of operating results; and


 


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


 


“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.


 


“Working Capital Facility” has the meaning
assigned to such term in the Interim Notes Indenture.


 


“Working Capital Facility Collateral” means
all of the assets of any Obligor, whether real, personal or mixed, with respect
to which a Lien is granted as security for any Working Capital Facility
Obligations.


 


“Working Capital Facility Collateral Agent”
means, at any time, the Person serving at such time as the “Collateral Agent”
under the Working Capital Facility or any other representative then most
recently designated in accordance with the applicable provisions of the Working
Capital Facility, together with its successors in such capacity.


 


“Working Capital Facility Debt Cap” means the
principal amount outstanding under the Working Capital Facility in an aggregate
principal amount not to exceed 110% of the amount at any one time outstanding
under clause (1) of Section 5.09 of the Interim Notes
Indenture (with letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Company thereunder) not to exceed
$50,00,000, less the aggregate amount of all Net Proceeds of Asset Sales
applied by the Company to repay any Indebtedness under the 


 


16

















 


Working Capital Facility and
effect a corresponding permanent commitment reduction thereunder pursuant to Section 5.10
of the Interim Notes Indenture.


 


“Working Capital Facility Documents” means
the Working Capital Facility, the Working Capital Facility Security Documents,
and all agreements governing or relating to any Working Capital Facility
Obligations.


 


“Working Capital Facility
Indebtedness” means:


 


(1)           Indebtedness of the Company,
the Guarantors and the guarantors under the Working Capital Facility Agreement
that was permitted to be incurred and secured under each applicable Secured
Debt Document (or as to which the lenders under the Working Capital Facility
Agreement obtained an Officers’ Certificate at the time of incurrence to the
effect that such Indebtedness was permitted to be incurred and secured by all
applicable Secured Debt Documents); and


 


(2)           Hedging Obligations incurred to hedge or manage
interest rate risk with respect to Working Capital Facility Indebtedness; provided,
that:


 


(a)           such Hedging Obligations are
secured by a Working Capital Facility Lien on all of the assets that secure
Indebtedness under the Working Capital Facility Agreement; and


 


(b)           such Working Capital
Facility Lien is senior to or on a parity with the Working Capital Facility
Liens securing Indebtedness under the Working Capital Facility Agreement.


 


“Working Capital Facility Lenders” means the
Persons holding Working Capital Facility Indebtedness.


 


“Working Capital Facility Lien” means a Lien
granted by a Working Capital Facility Security Document to the Working Capital
Facility Collateral Agent (or any Working Capital Facility Lender or other
representative of the Working Capital Facility Lenders), at any time, upon any
assets of the Company, any Guarantor or any guarantor under the Working Capital
Facility Agreement to secure Working Capital Facility Obligations.


 


“Working Capital Facility Obligations” means
the Working Capital Facility Indebtedness and all other Obligations in respect
of Working Capital Facility Indebtedness.


 


“Working Capital Facility Security Documents”
means this Agreement and all security agreements, pledge agreements, collateral
assignments, mortgages, deeds of trust, collateral agency agreements, control
agreements or other grants or transfers for security executed and delivered by
the Company or any Guarantor creating (or purporting to create) a Working
Capital Facility Lien upon collateral in favor of the Working Capital Facility
Collateral Agent, in each case, as amended, modified, renewed, restated or
replaced, in whole or in part, from time to time, in accordance with its terms.


 


17

















 


Section 2. Lien
Priorities.


 


2.1           Acknowledgment of Liens.


 


(a)           The Existing Notes Collateral Agent hereby acknowledges that
(i) the Interim Notes Collateral Agent, acting for and on behalf of the
Interim Notes Trustee and the Interim Notes Noteholders, has been granted Liens
upon the Interim Notes Collateral pursuant to the Interim Notes Collateral
Documents to secure the Interim Notes Obligations, (ii) to the extent any
Working Capital Facility Indebtedness is outstanding, the Working Capital
Facility Collateral Agent, acting for and on behalf of Working Capital Facility
Lenders, shall be granted Liens upon the Working Capital Facility Collateral
pursuant to the Working Capital Facility Documents to secure the Working
Capital Facility Obligations (subject to the principal amount thereof not
exceeding the Working Capital Facility Debt Cap) and (iii) to the extent
any Pari Passu Indebtedness is outstanding, the Pari Passu Collateral Agent,
acting for and on behalf of the Pari Passu Lenders, has been granted Liens upon
the Pari Passu Collateral pursuant to the Pari Passu Indebtedness Documents to
secure the Pari Passu Obligations (subject to the principal amount thereof not
exceeding the Pari Passu Indebtedness Cap).


 


(b)           The Interim Notes Collateral Agent hereby acknowledges that (i) the
Existing Notes Collateral Agent, acting for and on behalf of the Existing Notes
Trustee and the Existing Notes Noteholders, has been granted Liens upon the
Existing Notes Collateral pursuant to the Existing Notes Collateral Documents
to secure the Existing Notes Obligations, (ii) to the extent any Working
Capital Facility Indebtedness is outstanding, the Working Capital Facility
Collateral Agent, acting for and on behalf of Working Capital Facility Lenders,
has been granted Liens upon the Working Capital Facility Collateral pursuant to
the Working Capital Facility Documents to secure the Working Capital Facility
Obligations (subject to the principal amount thereof not exceeding the Working
Capital Facility Debt Cap) and (iii) to the extent any Pari Passu
Indebtedness is outstanding, the Pari Passu Collateral Agent, acting for and on
behalf of the Pari Passu Lenders, has been granted Liens upon the Pari Passu
Collateral pursuant to the Pari Passu Indebtedness Documents to secure the Pari
Passu Obligations (subject to the principal amount thereof not exceeding the
Pari Passu Indebtedness Cap).


 


2.2           Subordination.  Notwithstanding the order or time of
attachment, or the order, time or manner of perfection, or the order or time of
filing or recordation of any document or instrument, or other method of
perfecting a Lien in favor of the Working Capital Facility Collateral Agent or
any Working Capital Facility Lender, the Existing Notes Collateral Agent or any
Existing Notes Noteholder, the Interim Notes Collateral Agent or any Interim
Notes Noteholder, the Pari Passu Collateral Agent or any holder of any Pari
Passu Indebtedness, in each case in any Shared Collateral, and notwithstanding
any conflicting provisions, terms or conditions of the UCC or any other
applicable law or the Existing Notes Documents, the Interim Notes Documents,
the Pari Passu Indebtedness Documents or the Working Capital Facility Documents
or any other circumstance whatsoever, each of the Authorized Representatives
hereby agree that:


 


(a)           any Lien on the Working Capital Facility Collateral securing
any or all of the Working Capital Facility Obligations (subject to the
principal amount thereof not exceeding the Working Capital Facility Debt Cap)
now or hereafter held by the Working Capital Facility


 


18

















 


Collateral
Agent shall be senior and prior to any Lien on the Shared Collateral securing
any or all of the Existing Notes Obligations, the Interim Notes Obligations or
the Pari Passu Obligations, whether or not any such Liens securing any of the
Working Capital Facility Obligations are subordinated to any Lien securing any
other obligation of the Company or any Guarantor, in each case, on the terms
and in the manner set forth in this Agreement;


 


(b)           any Lien on the Shared Collateral securing any or all of the
Interim Notes Obligations or the Pari Passu Obligations now or hereafter held
by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent,
respectively, shall be senior and prior to any Lien on the Shared Collateral
securing any or all of the Existing Notes Obligations, whether or not any such
Liens securing any of the Interim Notes Obligations and the Pari Passu
Obligations are subordinated to any Lien securing any other obligation of the
Company or any Guarantor, in each case, on the terms and in the manner set
forth in this Agreement;


 


(c)           any Lien on the Shared Collateral now or hereafter held by
the Existing Notes Collateral Agent, the Interim Notes Collateral Agent or the
Pari Passu Collateral Agent, regardless of how acquired, shall be junior and
subordinate in all respects to all Liens on the Shared Collateral securing any
or all of the Working Capital Facility Obligations (subject to the principal
amount thereof not exceeding the Working Capital Facility Debt Cap); and


 


(d)           any Lien on the Shared Collateral now or hereafter held by
the Existing Notes Collateral Agent, regardless of how acquired, shall be
junior and subordinate in all respects to all Liens on the Shared Collateral
securing any or all of the Interim Notes Obligations and the Pari Passu
Obligations.


 


2.3           Pari Passu Liens.  Notwithstanding the order or time of
attachment, or the order, time or manner of perfection, or the order or time of
filing or recordation of any document or instrument, or other method of
perfecting a Lien in favor of the Interim Notes Collateral Agent or the Pari
Passu Collateral Agent in the Shared Collateral , and notwithstanding any
conflicting provisions, terms or conditions of the UCC or any other applicable
law or the Interim Notes Documents or the Pari Passu Indebtedness Documents or
any other circumstance whatsoever, the Interim Notes Collateral Agent (on
behalf of itself and the Interim Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) each hereby
agree that any Lien on the Shared Collateral securing any or all of the Pari
Passu Obligations (subject to the principal amount thereof not exceeding the
Pari Passu Indebtedness Cap) now or hereafter held by the Pari Passu Collateral
Agent or any Pari Passu Lender and securing any or all of the Interim Notes
Obligations now or hereafter held by the Interim Notes Collateral Agent or any
Interim Notes Noteholder, will to be pari passu to one another, in each case,
regardless of the time or order of attachment or perfection, and otherwise on
the terms and in the manner set forth in this Agreement.


 


2.4           Prohibition on Contesting
Liens.  Each of the Authorized
Representatives (for itself and on behalf of each other Secured Party of the Series of
Secured Debt with respect to which it is acting in such capacity) agrees that
it shall not (and hereby waives any right to) contest or support any other
Person in contesting, in any proceeding (including, without limitation, any
Insolvency Proceeding), the priority, validity or enforceability of a Lien held
by, or purported to be granted to, (i) the Working Capital Facility
Collateral Agent or any of the


 


19

















 


Working Capital Facility Lenders in any of
the Working Capital Facility Collateral, (ii) the Interim Notes Collateral
Agent or any of the Interim Notes Noteholders in any of the Interim Notes
Collateral, (iii) the Pari Passu Collateral Agent or any of the Pari Passu
Lenders in any of the Pari Passu Collateral, or (iv) the Existing Notes
Collateral Agent or any of the Existing Notes Noteholders in any of the
Existing Notes Collateral.


 


2.5           No New Liens.


 


(a)           After the incurrence of the Working Capital Facility
Obligations and until the Discharge of Working Capital Facility Obligations, (i) the
Existing Notes Collateral Agent agrees, for itself and on behalf of each
Existing Notes Noteholder, that the Existing Notes Collateral Agent and each
Existing Notes Noteholder shall not demand or receive any Lien upon any assets
or properties of any Obligor unless the Working Capital Facility Collateral
Agent has been granted a Lien on such assets or properties which is senior and
prior to the Liens thereon of the Notes Collateral Agent and the Noteholders; (ii) the
Interim Notes Collateral Agent agrees, for itself and on behalf of each Interim
Notes Noteholder, that the Interim Notes Collateral Agent and each Interim
Notes Noteholder shall not demand or receive any Lien upon any assets or
properties of any Obligor unless the Working Capital Facility Collateral Agent has
been granted a Lien on such assets or properties which is senior and prior to
the Liens thereon of the Interim Notes Collateral Agent; (iii) the Pari
Passu Collateral Agent agrees, for itself and on behalf of each Pari Passu
Lender, that the Pari Passu Collateral Agent and each Pari Passu Lender shall
not demand or receive any Lien upon any assets or properties of any Obligor
unless the Working Capital Facility Collateral Agent has been granted a Lien on
such assets or properties which is senior and prior to the Liens thereon of the
Pari Passu Collateral Agent and the Pari Passu Lenders; and (iv) the
parties hereto agree that, to the extent that the foregoing provisions of this Section 2.5(a) are
not complied with for any reason, after the date hereof, any amounts received
by or distributed to the Existing Notes Collateral Agent and/or the Existing
Notes Noteholders, the Interim Notes Collateral Agent and/or the Interim Notes
Noteholders or the Pari Passu Collateral Agent and/or the Pari Passu Lenders,
or any of them pursuant to or as a result of Liens granted in contravention of
this Section 2.5(a) shall be subject to Section 4.1.


 


(b)           Until the Discharge of Interim Notes Obligations, (i) the
Existing Notes Collateral Agent agrees, for itself and on behalf of each
Existing Notes Noteholder, that the Existing Notes Collateral Agent and each
Existing Notes Noteholder shall not demand or receive any Lien upon any assets
or properties of any Obligor unless the Interim Notes Collateral Agent has been
granted a Lien for the benefit of itself and the Interim Notes Noteholders on
such assets or properties which is senior and prior to the Liens thereon of the
Existing Notes Collateral Agent and the Existing Notes Noteholders; (ii) 
the Pari Passu Collateral Agent agrees, for itself and on behalf of each Pari
Passu Lender, that the Pari Passu Collateral Agent and each Pari Passu Lender
shall not demand or receive any Lien upon any assets or properties of any
Obligor unless the Interim Notes Collateral Agent has been granted a Lien on
such assets or properties which is pari passu in rank with the Liens thereon of
the Pari Passu Collateral Agent and the Pari Passu Lenders; and (iii) the
parties hereto agree that, to the extent that the foregoing provisions of this Section 2.5(b) are
not complied with for any reason, after the date hereof, any amounts received
by or distributed to the Existing Notes Collateral Agent and/or the Existing
Notes Noteholders or the Pari Passu Collateral Agent and/or the Pari Passu
Lenders, or any of them pursuant to or as a result of Liens granted in
contravention of this Section 2.5(b) shall be subject to Section 4.1.


 


20

















 


Section 3. Enforcement.


 


3.1           Exercise of Remedies.


 


(a)           With respect to any Shared Collateral, subject to the
provisions of Section 3.1(b), (i) only the Controlling Collateral
Agent shall act or refrain from acting with respect to any Enforcement Action
against the Shared Collateral (including with respect to any intercreditor agreement
with respect to any Shared Collateral) and shall have the right to instruct the
Authorized Representatives of the Non-Controlling Secured Parties to act or
refrain from acting with respect to any Enforcement Action against the Shared
Collateral, (ii) the Authorized Representatives of the Non-Controlling
Secured Parties shall follow all instructions with respect Enforcement Actions
against such Shared Collateral (including with respect to any intercreditor
agreement with respect to any Shared Collateral) from any representative of the
Controlling Collateral Agent (and shall not comply with instructions with
respect to Enforcement Actions against such Shared Collateral from any other
Secured Party (other than the Controlling Collateral Agent)) and (iii) no
Authorized Representative of any Non-Controlling Secured Party or other Secured
Party (other than the Controlling Collateral Agent) shall, or shall have the
right to, take any Enforcement Action against any Shared Collateral, it being
agreed that only the Controlling Collateral Agent shall be entitled to take any
such Enforcement Action with respect to Shared Collateral.  Notwithstanding the equal priority of the
Liens, the Controlling Collateral Agent may deal with the Shared Collateral
without regard to the equal priority Lien of the Non-Controlling Secured
Parties on such Collateral.  No
Authorized Representative of any Non-Controlling Secured Party nor any
Non-Controlling Secured Party will contest, protest or object to any
Enforcement Action brought by the Controlling Collateral Agent or Controlling
Secured Party, or any other exercise by the Controlling Collateral Agent or
Controlling Secured Party of any rights and remedies relating to the Shared
Collateral, in each case above in compliance with applicable law and this
Agreement, or support any other Person in so contesting, protesting or
objecting.  The foregoing shall not be
construed to limit the rights and priorities of any Secured Party, the
Controlling Collateral Agent or any Authorized Representative with respect to
any collateral not constituting Shared Collateral.  No Authorized Representative of any
Non-Controlling Secured Party will commence, or join with any Person (other
than the Controlling Collateral Agent upon the request thereof) in commencing
any Insolvency Proceeding against any Obligor or any Enforcement Action with
respect to any Lien held by it on the Shared Collateral.


 


(b)           Notwithstanding the foregoing, however, any Authorized
Representative may:


 


(i)            file a claim or statement of
interest with respect to its Obligations in any Insolvency Proceeding commenced
by or against one or more Obligors;


 


(ii)           take any action (not adverse
to the priority status of the Liens on the Shared Collateral or the rights of
the Controlling Collateral Agent to exercise remedies in respect thereof) in
order to create, perfect, preserve or protect its Lien on the Shared
Collateral;


 


(iii)          file any necessary
responsive or defensive pleadings in opposition to any motion, claim, adversary
proceeding or other pleading made by any person objecting to or


 


21

















 


otherwise seeking the
disallowance of the claims of the Controlling Collateral Agent or of any other
Secured Parties including any claims secured by the Collateral, if any, in each
case in accordance with the terms of this Agreement;


 


(iv)          vote on any plan of
reorganization, file any proof of claim, make other filings and make any
arguments and motions that are, in each case, in accordance with the terms of this
Agreement, with respect to the Obligations and the Shared Collateral; or


 


(v)           exercise any of its rights
or remedies with respect to the Collateral or commence an Insolvency Proceeding
against any Obligor after the termination of the 180-day period specified in Section 3.1(e) to
the extent permitted by Section 3.1(e).


 


(c)           Subject to Section 3.1(e) below, in
exercising rights and remedies with respect to the Shared Collateral, the
Controlling Collateral Agent may enforce the provisions of the Collateral
Documents and exercise remedies thereunder, all in such order and in such
manner as it may determine in the exercise of its sole discretion.  Such exercise and enforcement shall include,
without limitation, the rights of an agent appointed by it to sell or otherwise
dispose of Shared Collateral upon foreclosure, to incur expenses in connection
with such sale or disposition, and to exercise all the rights and remedies of a
secured party under the UCC of any applicable jurisdiction and of a secured
creditor under the Bankruptcy Code or similar laws of any applicable
jurisdiction.  Without limiting the
generality of the foregoing, except as expressly provided above in Sections
3.1(b) or in Section 6.4(b), the sole right of the
Non-Controlling Secured Parties is to hold a Lien on the Shared Collateral
pursuant to the applicable Collateral Documents for the period and to the
extent granted therein and to receive a share of the proceeds thereof, if any,
pursuant to Section 4.1.


 


(d)           Subject to Section 3.1(e) below, each of
the Non-Controlling Secured Parties hereby waives any and all rights it may
have as a junior lien creditor or otherwise to object to the manner in which
the Controlling Collateral Agent seeks to enforce or collect any Obligations or
any Liens granted in any of the Shared Collateral, to the extent such
enforcement or collection is in accordance with applicable law and not
inconsistent with this Agreement.


 


(e)           Notwithstanding anything to the contrary set forth herein,
in the event of the failure of the Company to make any payment in respect of (i) any
Notes Indebtedness in accordance with the terms of the Notes Documents or upon
the occurrence of any other Event of Default under any of the Notes Documents
and for so long as such Event of Default under any of the Notes Documents is
continuing, subject at all times to the provisions of Sections 2.2 and 4.1
hereof, or (ii) the Pari Passu Indebtedness in accordance with the terms
of the Pari Passu Indebtedness Documents or upon the occurrence of any other
Event of Default under the Pari Passu Indebtedness Documents and for so long as
such Event of Default under the Pari Passu Indebtedness Documents is
continuing, subject at all times to the provisions of Sections 2.2 and 4.1
hereof, in each case, commencing one hundred eighty (180) days after the
receipt by the Working Capital Facility Collateral Agent of the declaration by
the Trustee or the Existing Notes Collateral Agent or the Interim Notes
Collateral Agent, on the one hand, or Pari Passu Collateral Agent, on the other
hand, of such Event of Default under any of the Notes Documents or Pari Passu
Indebtedness Documents, as applicable, and of the written demand by the Trustee
or the Existing Notes Collateral Agent or the Interim Notes Collateral Agent,
on the one hand, or the


 


22

















 


Pari
Passu Collateral Agent, on the other hand, to the Company for the accelerated
payment of any or all Notes Obligations or Pari Passu Obligations, as
applicable (unless any Obligor is subject to an Insolvency Proceeding by reason
of which such declaration and the making of such demand is stayed, in which
case, commencing on the date of the commencement of such Insolvency
Proceeding), the Trustee or the Existing Notes Collateral Agent (except as
prohibited by any other provision of this Agreement, including paragraph (f) below)
or the Interim Notes Collateral Agent, on the one hand, or the Pari Passu
Collateral Agent, on the other hand, may take any action described in Section 3.1(a) above
with respect to its Liens on the Shared Collateral but only so long as the
Working Capital Facility Collateral Agent is not already diligently pursuing
the exercise of its enforcement rights or remedies against, or diligently
attempting to vacate any stay of enforcement of its Liens on, all or any
material portion of the Shared Collateral, in the case of the Existing Notes
Collateral Agent or the Interim Notes Collateral Agent and the Existing Notes
Noteholders or Interim Notes Noteholders, as applicable, and the Pari Passu
Collateral, in the case of the Pari Passu Collateral Agent and the Pari Passu
Lenders (including, without limitation, any of the following: subject to
applicable laws, the solicitation of bids from third parties to conduct the liquidation
of all or any material portion of the Shared Collateral, the engagement or
retention of sales brokers, marketing agents, investment bankers, accountants,
auctioneers or other third parties for the purpose of valuing, marketing,
promoting and selling a material portion of the Shared Collateral, the
notification of account debtors to make payments to the Working Capital
Facility Collateral Agent or its agent, any action to take possession of all or
any material portion of the Shared Collateral or commencement of any legal
proceedings or actions against or with respect to all or any material portion
of the Shared Collateral).


 


(f)            Notwithstanding anything to the contrary set forth herein,
in the event of the failure of the Company to make any payment in respect of (i) the
Existing Notes Indebtedness in accordance with the terms of the Existing Notes
Documents or upon the occurrence of any other Event of Default under the
Existing Notes Documents and for so long as such Event of Default under the
Notes Documents is continuing, subject at all times to the provisions of Sections
2.2 and 4.1 hereof, or (ii) the Pari Passu Indebtedness in
accordance with the terms of the Pari Passu Indebtedness Documents or upon the
occurrence of any other Event of Default under the Pari Passu Indebtedness
Documents and for so long as such Event of Default under the Pari Passu
Indebtedness Documents is continuing, subject at all times to the provisions of
Sections 2.2 and 4.1 hereof, in each case, commencing one hundred
eighty (180) days after the later of (i) the Discharge of Working Capital
Facility Obligations (if any) and (ii) receipt by the Interim Notes
Collateral Agent of the declaration by the Existing Notes Trustee or the
Existing Notes Collateral Agent, on the one hand, or Pari Passu Collateral
Agent, on the other hand, of such Event of Default under the Existing Notes
Documents or Pari Passu Indebtedness Documents, as applicable, and of the
written demand by the Existing Notes Trustee or the Existing Notes Collateral Agent,
on the one hand, or the Pari Passu Collateral Agent, on the other hand, to the
Company for the accelerated payment of all Existing Notes Obligations or Pari
Passu Obligations, as applicable (unless any Obligor is subject to an
Insolvency Proceeding by reason of which such declaration and the making of
such demand is stayed, in which case, commencing on the date of the
commencement of such Insolvency Proceeding), the Existing Notes Trustee or the
Existing Notes Collateral Agent, on the one hand, or the Pari Passu Collateral
Agent, on the other hand, may take any action described in Section 3.1(a) above
with respect to its Liens on the Collateral but only so long as the Interim
Notes Collateral Agent is not


 


23

















 


already
diligently pursuing the exercise of its enforcement rights or remedies against,
or diligently attempting to vacate any stay of enforcement of its Liens on, all
or any material portion of the Shared Collateral, in the case of the Existing
Notes Collateral Agent and the Existing Notes Noteholders, and the Pari Passu
Collateral, in the case of the Pari Passu Collateral Agent and the Pari Passu
Lenders (including, without limitation, any of the following: subject to
applicable laws, the solicitation of bids from third parties to conduct the
liquidation of all or any material portion of the Shared Collateral, the
engagement or retention of sales brokers, marketing agents, investment bankers,
accountants, auctioneers or other third parties for the purpose of valuing,
marketing, promoting and selling a material portion of the Shared Collateral,
the notification of account debtors to make payments to the Interim Notes
Collateral Agent or its agent, any action to take possession of all or any
material portion of the Shared Collateral or commencement of any legal
proceedings or actions against or with respect to all or any material portion
of the Shared Collateral).


 


Section 4. Payments.


 


4.1           Application of Proceeds and
Payments Over.  Each
Authorized Representative on its own behalf and on behalf of each other Secured
Party of the Series of Secured Debt with respect to which it is acting in
such capacity (and each such Secured Party by its acceptance of the benefits of
the Secured Debt Documents) hereby agrees that if it shall obtain possession of
any Shared Collateral or shall realize any proceeds or payment in respect of
any such Shared Collateral pursuant to any Collateral Document or by the
exercise of any rights available to it under applicable law or in any
Insolvency Proceedings or through any other exercise of remedies or the taking
of any other Enforcement Action, then it shall hold such Shared Collateral,
proceeds or payment in trust for the other Secured Parties and promptly
transfer such Shared Collateral, proceeds or payment, as the case may be, to
the Controlling Collateral Agent, and any proceeds or payment (collectively, “Proceeds”),
shall be applied in the following order:


 


(a)           FIRST, to the fees and expenses of, and reimbursements and
indemnification owed to, the Controlling Collateral Agent under this Agreement
and under the Secured Debt Documents to which it is a party that are unpaid as
of the applicable date of receipt of such Proceeds, and to any Secured Party
which has theretofore advanced or paid any such fees and expenses of, and
reimbursements and indemnification owed to, the Controlling Collateral Agent in
an amount equal to the amount thereof so advanced or paid by such Secured
Party;


 


(b)           SECOND, to the fees and expenses of, and reimbursements and
indemnification that do not relate to the Collateral or the exercise of rights
and remedies with respect to thereto (which would be the subject of clause
FIRST above) owed to the Working Capital Facility Collateral Agent pursuant to
the Working Capital Facility Agreement;


 


(c)           THIRD to the fees and expenses of, and reimbursements and
indemnification that do not relate to the Collateral or the exercise of rights
and remedies with respect to thereto (which would be the subject of clause FIRST
above) owed to the Notes Collateral Agent pursuant to the Notes Documents and
the Pari Passu Collateral Agent pursuant to the Pari Passu Indebtedness
Documents, Equally and Ratably,


 


24
















 


(d)                                 FOURTH, to the payment in cash of the Working Capital
Facility Obligations then due and owing;


 


(e)                                  FIFTH, to the payment in cash of the Interim Notes
Obligations then due and owing and any Pari Passu Obligations then due and
owing, Equally and Ratably (after giving effect to any payments previously made
under this Section),


 


(f)                                    SIXTH, to the payment in cash of the Existing Notes
Obligations then due and owing, and


 


(g)                                 SEVENTH, to the Company and the Guarantors or their
successors or assigns, as their interests may appear, or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.


 


Section 5.
Other Agreements.


 


5.1                                 Releases.


 


(a)                                  If, in connection with the exercise of the Controlling
Collateral Agent’s remedies in respect of the Shared Collateral provided for in
Section 3.1, or, during the continuance any matured “event of
default” under the Working Capital Facility Documents, in connection with a
Disposition in lieu of foreclosure or other exercise of remedies on any of
Shared Collateral by any Obligor at the written direction, or with the
approval, of the Controlling Collateral Agent or the Controlling Collateral
Agent for itself or on behalf of any of the Controlling Secured Parties, the
Controlling Collateral Agent releases any of its Liens on any part of the
Shared Collateral, then all Liens on such Shared Collateral in favor of any
Secured Party (other than any such Liens on Proceeds, which shall continue
notwithstanding such release) shall be automatically, unconditionally and
simultaneously released, provided that the Proceeds of such Shared Collateral
are applied to repay the Obligations in accordance with Section 4.1.


 


(b)                                 If in connection with any sale, lease, exchange, transfer or
other disposition of any Shared Collateral (collectively, a “Disposition”)
permitted under the terms of each of the Working Capital Facility Documents,
the Notes Documents and the Pari Passu Indebtedness Documents (other than in
connection with the exercise of the Controlling Collateral Agent’s remedies or
any other Enforcement Action in respect of the Shared Collateral provided for
in Section 3.1), the Controlling Collateral Agent, for itself or on
behalf of any of the Controlling Secured Parties, releases its Liens on any of
the Shared Collateral, other than in connection with, or in anticipation of,
the Discharge of Working Capital Facility Obligations, then the Existing Notes
Liens, the Interim Notes Liens and the Pari Passu Liens on such Shared
Collateral shall be automatically, unconditionally and simultaneously released;
provided, that the Existing Notes Liens and Interim Notes Liens
upon the Shared Collateral securing the Notes Obligations shall not be released
if the Disposition is subject to Section 6.01 of the Interim Notes
Indenture.


 


(c)                                  If (i) the Required Working Capital Facility Lenders,
the Required Noteholders under the Notes Documents and the Required Pari Passu
Lenders under the Pari Passu Indebtedness Documents consent to a release of any
or all of the Shared Collateral, and (ii) the Company delivers an
Officers’ Certificate to the Working Capital Facility Collateral Agent,


 


25

















 


the
Notes Collateral Agent and the Pari Passu Collateral Agent certifying that all
such necessary consents have been obtained, the Working Capital Facility
Collateral Agent, for itself and for the benefit of the Working Capital
Facility Lenders, the Notes Collateral Agent, for itself and for the benefit of
the Noteholders, and the Pari Passu Collateral Agent, for itself and for the
benefit of the Pari Passu Lenders, shall unconditionally and simultaneously
release their Liens on such Shared Collateral.


 


(d)                                 If the guarantee of the Notes Indebtedness by a Guarantor is
released in accordance with the Notes Documents, the Liens on the Shared
Collateral securing such guarantee of such Guarantor shall be automatically,
unconditionally and simultaneously released.


 


(e)                                  If the guarantee of the Working Capital Facility
Indebtedness by a Guarantor is released in accordance with the Working Capital
Facility Documents, the Working Capital Facility Liens on the Shared Collateral
of such Guarantor shall be automatically, unconditionally and simultaneously
released.


 


(f)                                    If the guarantee of the Pari Passu Indebtedness by a
Guarantor is released in accordance with the Pari Passu Indebtedness Documents,
the Pari Passu Liens on the Shared Collateral of such Guarantor shall be
automatically, unconditionally and simultaneously released.


 


provided, that,
in each case, the Controlling Collateral Agent and each Trustee have received
all documentation, if any, that may be required by the Trust Indenture Act in
connection therewith.  In connection with
any release of Collateral as provided for above, the Controlling Collateral
Agent will promptly execute any release documentation with respect thereto
reasonably requested by the Company.


 


(g)                                 Each of the Authorized Representatives hereby irrevocably
constitutes and appoints the Controlling Collateral Agent and any officer or
agent of the Controlling Collateral Agent, with full power of substitution, as
its true and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of such Authorized Representative, or in the Controlling
Collateral Agent’s name, from time to time in the Controlling Collateral
Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Section 5.1, including, without limitation, any financing
statement amendments, endorsements or other instruments or transfer or
release.  This power is coupled with an
interest and shall be irrevocable.


 


5.2                                 Insurance.  The Controlling Collateral Agent shall have
the sole and exclusive right, subject to the rights of the Company under the
relevant Collateral Documents, to adjust settlement for any insurance policy
covering any Shared Collateral in the event of any loss thereunder and to
approve any award granted in any condemnation or similar proceeding affecting
any Shared Collateral.  All proceeds of
any such policy and any such award shall be paid to the Controlling Collateral
Agent for distribution in accordance with Section 4.1.  If any Secured Party shall, at any time,
receive any proceeds of any such insurance policy or any such award in
contravention of this Agreement, it shall pay such proceeds over to the
Controlling Collateral Agent in accordance with the terms of Section 4.1.


 


26

















 


5.3                                 Amendments to Documents
The Working Capital Facility Documents, the Existing Notes Documents, the
Interim Notes Documents and the Pari Passu Indebtedness Documents may be
amended, supplemented or otherwise modified in accordance with their terms and
the Working Capital Facility Indebtedness, the Existing Notes Indebtedness, the
Interim Notes Indebtedness and the Pari Passu Indebtedness may be refinanced, in
each case, without notice to, or the consent of any of the parties hereto, all
without affecting the lien subordination or other provisions of this Agreement;
provided, that the holders of such refinancing debt bind
themselves in a writing addressed to each of the parties hereto to the terms of
this Agreement, and provided, that no such amendment, supplement,
modification or refinancing shall result in the Working Capital Facility
Indebtedness exceeding, or being permitted to exceed, the Working Capital Facility
Debt Cap.


 


(b)                                 The Company and the Existing Notes Collateral Agent agree
that each Existing Notes Collateral Document shall include the following
caption (appropriately modified to conform to definitions applicable thereto):


 


“THIS [AGREEMENT][INDENTURE] AND THE RIGHTS OF THE PARTIES HEREUNDER
ARE SUBJECT TO THE PROVISIONS OF THE OMNIBUS INTERCREDITOR AGREEMENT DATED AS
OF DECEMBER 7, 2009, BETWEEN
[                      ]
AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE [COMPANY AND
THE GUARANTORS][COMPANY AND THE OTHER [GRANTORS][OBLIGORS]], AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS
THEREOF.”


 


(c)                                  The Company, the Notes Collateral Agent and the Pari Passu
Collateral Agent each agrees that each Notes Collateral Document and Pari Passu
Collateral Document shall include the following caption (appropriately modified
to conform to definitions applicable thereto):


 


“THIS [AGREEMENT][INDENTURE] AND THE RIGHTS OF THE PARTIES HEREUNDER
ARE SUBJECT TO THE PROVISIONS OF THE OMNIBUS INTERCREDITOR AGREEMENT DATED AS
OF DECEMBER 7, 2009, BETWEEN
[                      ]
AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE [COMPANY AND
THE GUARANTORS][COMPANY AND THE OTHER [GRANTORS][OBLIGORS]], AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS
THEREOF.”


 


provided, however,
that if the jurisdiction in which any such Notes Collateral Document or Pari
Passu Collateral Document will be filed prohibits the inclusion of the language
in clause (b) or (c) above or would prevent a document containing
such language from being recorded, the Working Capital Facility Collateral
Agent, the Notes Collateral Agent and, if applicable, the Pari Passu Collateral
Agent, agree, prior to such Notes Collateral Document or Pari Passu Collateral
Document being entered into, to negotiate in good faith replacement language
stating that the Liens granted under such Notes Collateral Document or Pari
Passu Collateral Document is subject to the provisions of this Agreement.


 


27

















 


(d)                                 The Company, the Notes Collateral Agent and the Pari Passu
Collateral Agent each agrees that each indenture or other primary debt document
governing the Notes Indebtedness and Pari Passu Indebtedness shall include the
following language (appropriately modified to conform to definitions applicable
thereto):


 


“The [Lenders][Holders][other applicable term], [by their acceptance of
the [Notes]][by their execution and delivery hereof], hereby irrevocably
authorize and direct the [Agent][Trustee][other applicable term]  to enter into the Omnibus Intercreditor
Agreement [as defined herein] on behalf of the [Agent][Trustee][other applicable
term] and the  [Lenders][Holders][other
applicable term], and agree to be bound by the provisions thereof as if they
were direct signatories thereof, and to take all actions required to be taken
by them in accordance with the provisions thereof, and to otherwise comply
therewith, and irrevocably authorize and direct the [Agent][Trustee][other
applicable term] to take all actions on its or the [Lenders’][Holders’][other
applicable term] behalf as are necessary to comply with the provisions thereof.  The rights and
remedies of the [Agent][Trustee][other applicable term], on behalf of the
[Lenders][Holders][other applicable term], under this [Agreement][Indenture]
shall be subject to the Omnibus Intercreditor Agreement as in effect from time
to time.  In the event of any conflict
between the terms of the Omnibus Intercreditor Agreement and this
[Agreement][Indenture], the terms of the Omnibus Intercreditor Agreement shall
govern and control.”


 


5.4                                 Rights as
Unsecured Creditors.  Except as
otherwise expressly prohibited in this Agreement, each Junior Secured Party may
exercise rights and remedies as an unsecured creditor against any Obligor in
accordance with the terms of the Notes Documents or Pari Passu Indebtedness
Documents, as applicable, and applicable law. 
For the avoidance of doubt, nothing in this Agreement shall prohibit the
receipt by a Junior Secured Party of the required payments of interest on and
principal of the Notes or Pari Passu Obligations, as applicable, so long as
such receipt is not the direct or indirect result of the taking by the Notes
Collateral Agent or any Noteholder, on the one hand, or the Pari Passu
Collateral Agent or any Pari Passu Lender, on the other hand, of any
Enforcement Action in respect of any Lien held by any of them in contravention
of this Agreement.  In the event that a
Junior Secured Party becomes a judgment lien creditor in respect of any Shared
Collateral as a result of its enforcement of its rights as an unsecured
creditor, the judgment lien held by such Junior Secured Party shall be deemed
part of the Obligations held by such Junior Secured Party and shall be
subordinated to the Liens securing the other Obligations held by the other
Junior Secured Parties to the extent provided in this Agreement.


 


5.5                                 Bailee for Perfection
The Controlling Collateral Agent agrees to hold all of the Shared Collateral in
its possession or control (or in the possession or control of its agents or
bailees) as agent for perfection and bailee for the benefit of and on behalf of
the Working Capital Facility Collateral Agent, the Notes Collateral Agent and
the Pari Passu Collateral Agent solely for the purpose of perfecting the
security interest granted in such Shared Collateral pursuant to the Working
Capital Facility Collateral Documents, Notes Collateral Documents and the Pari
Passu Collateral Documents (such provision being intended, among other things,
to satisfy the


 


28

















 


requirements
of Sections 8-301(a)(2) and 9-313(c) of the UCC),
subject to the terms and conditions of this Section 5.5.


 


(b)                                 The Controlling Collateral Agent shall not have any
obligation whatsoever to any Junior Secured Party to assure that the Shared
Collateral in the Controlling Collateral Agent’s possession or control is
genuine or owned by any Obligor or to preserve rights or benefits of any Person
except as expressly set forth in this Section 5.5.  The duties or responsibilities of the
Controlling Collateral Agent under this Section 5.5 shall be
limited solely to holding the Shared Collateral in its possession or control as
agent for perfection and bailee for the Existing Notes Collateral Agent and the
Interim Notes Collateral Agent and the Pari Passu Collateral Agent, as
applicable, for purposes of perfecting the Lien held by the Existing Notes
Collateral Agent and  the Interim Notes
Collateral Agent and the Pari Passu Collateral Agent, as applicable, and to
using the same degree of care with respect to such Shared Collateral as the
Controlling Collateral Agent uses for similar property pledged to it as collateral
for indebtedness generally.  The
Controlling Collateral Agent shall not be liable to any Junior Secured Party
for any action taken or omitted by it hereunder or in connection herewith,
except to the extent of the Controlling Collateral Agent’s own gross negligence
or willful misconduct as determined by a final non-appealable order of a court
of competent jurisdiction.


 


(c)                                  The Controlling Collateral Agent shall not have, by reason
of any document, a fiduciary relationship in respect of any Junior Secured
Party.


 


(d)                                 If (i) the Controlling Collateral Agent is the Working
Capital Facility Collateral Agent, and if any Notes Obligations remain
outstanding upon the Discharge of Working Capital Facility Obligations, the
Working Capital Facility Collateral Agent shall deliver to the Primary Notes
Collateral Agent as successor Controlling Collateral Agent the Shared
Collateral in its possession or control (or in the possession or control of its
agents or bailees) together with any necessary or reasonably requested
endorsements (or otherwise allow the Primary Notes Collateral Agent to obtain
control of such Shared Collateral), or as a court of competent jurisdiction may
otherwise direct, or (ii) the Controlling Collateral Agent is the Primary
Notes Collateral Agent, and if any Pari Passu Indebtedness remains outstanding
upon the Discharge of Interim Notes Obligations, the Primary Notes Collateral
Agent shall deliver to Pari Passu Collateral Agent the Shared Collateral in its
possession or control (or in the possession or control of its agents or
bailees) together with any necessary or reasonably requested endorsements (or
otherwise allow the Pari Passu Collateral Agent to obtain control of such
Shared Collateral), or as a court of competent jurisdiction may otherwise
direct.  The successor Controlling
Collateral Agent agrees to hold any Shared Collateral so received from the
former Controlling Collateral Agent in its possession or control as bailee for
the remaining Authorized Representatives, and to use the same degree of care
with respect to such Shared Collateral as the successor Controlling Collateral
Agent uses for similar property pledged to it as collateral for indebtedness
generally.


 


5.6                                 Purchase Option.


 


(a)                                  Upon the occurrence and during the continuance of an Event
of Default or an event of default under the Working Capital Facility Documents
that is not cured or waived within thirty (30) days, the Interim Notes
Collateral Agent on behalf of the Interim Notes


 


29

















 


Noteholders,
and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after
written demand by the Trustee or the Interim Notes Collateral Agent, on the one
hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company
for the accelerated payment of all Interim Notes Obligations or Pari Passu
Obligations, as applicable, shall have the option at any time upon five (5) Business
Days’ prior written notice to the Working Capital Facility Collateral Agent to
elect to purchase a portion of the Working Capital Facility Indebtedness from
the Working Capital Facility Lenders, ratably in proportion to the outstanding
Obligations of each outstanding Series of Secured Debt (in each case, the
“Purchasable Portion”).  Such
notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or
Pari Passu Collateral Agent, as applicable, to the Working Capital Facility
Collateral Agent shall be irrevocable; provided, that the Interim
Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall
have the right within ten (10) days following receipt of the information
required to be delivered pursuant to clauses (a) and (b) of the
definition of “Qualified Indemnification Claim” to revoke such election to
purchase such portion of the Working Capital Facility Indebtedness; provided,
further, that such revocation is in writing duly signed by the Interim Notes
Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received
by the Working Capital Facility Collateral Agent prior to the expiration of
such ten-day period.  Neither the
Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have
any rights under this Section 5.6.


 


(b)                                 On the date specified by the Interim Notes Collateral Agent
or Pari Passu Collateral Agent in its respective Exercise Notice (which shall
not be less than five (5) Business Days, nor more than the later of (i) thirty
(30) days after the receipt by the Working Capital Facility Collateral Agent of
the Exercise Notice, and (ii) ten (10) days after receipt by the
Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable,
of the information required to be delivered pursuant to clauses (a) and (b) of
the definition of “Qualified Indemnification Claim” (the later of such dates,
the “Outside Closing Date”)), the Working Capital Facility Collateral
Agent and Working Capital Facility Lenders shall sell to the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the
Working Capital Facility Collateral Agent and Working Capital Facility Lenders,
the respective Purchasable Portion; provided, that (A) the
Working Capital Facility Collateral Agent and Working Capital Facility Lenders
shall retain all rights to be indemnified or held harmless by any Obligor in
accordance with the terms of the Working Capital Facility Documents as to
actions or events that occurred or did not occur prior to the closing of the of
the sale of the Working Capital Facility Indebtedness to the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain
any rights to the security therefor, and (B) nothing contained in clause (A) above
shall restrict or limit the indemnification rights of any Trustee, the Interim
Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu
Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital
Facility Documents assumed as a result of the purchase of the Working Capital
Facility Indebtedness.  The Working
Capital Facility Collateral Agent hereby represents and warrants that, as of
the date it becomes a party to this Agreement, no approval of any court or other
regulatory or governmental authority is required for such sale.


 


(c)                                  Upon the date of such purchase and sale, the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay
to the Working Capital Facility Collateral Agent, for the benefit of Working Capital
Facility Lenders, as the purchase price therefore, the full amount of the
respective Purchasable Portion of all the Working Capital


 


30

















 


Facility
Indebtedness then outstanding and unpaid (including principal, interest, fees
and expenses, including reasonable attorneys’ fees and legal expenses but
excluding any early termination fee or prepayment penalty or premium payable
pursuant to the Working Capital Facility Agreement or any other Working Capital
Facility Document), (ii) furnish cash collateral to the Working Capital
Facility Collateral Agent in such amounts as the Working Capital Facility
Collateral Agent determines is reasonably necessary to secure the Working
Capital Facility Collateral Agent and Working Capital Facility Lenders in
connection with any issued and outstanding letters of credit provided by the
Working Capital Facility Collateral Agent or Working Capital Facility Lenders
(or letters of credit that the Working Capital Facility Collateral Agent has
arranged to be provided by third parties pursuant to the financing arrangements
under the Working Capital Facility Documents of the Working Capital Facility
Collateral Agent and Working Capital Facility Lenders with the Company or any
Obligor) to the Company or any Obligor (but not in any event in an amount
greater than 110% of the aggregate undrawn face amount of such letters of
credit), (iii) agree to reimburse the Working Capital Facility Collateral
Agent and Working Capital Facility Lenders for any checks or other payments
provisionally credited to the Working Capital Facility Indebtedness, and/or as
to which the Working Capital Facility Collateral Agent or Working Capital
Facility Lenders has not yet received final payment and (iv) agree to reimburse
the Working Capital Facility Collateral Agent and Working Capital Facility
Lenders in respect of Qualified Indemnification Claims which in fact result in
any loss, cost, damage or expense (including reasonable attorneys’ fees and
legal expenses) to the Working Capital Facility Collateral Agent and Working
Capital Facility Lenders; provided, that (A) in no event
will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the
one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other
other hand, have any liability for such amounts in excess of the cash proceeds
of Shared Collateral received by the Interim Notes Collateral Agent or the Pari
Passu Collateral Agent, as applicable, net of (1) the reasonable costs of
collection (including reasonable attorneys’ fees and legal expenses) incurred
by or on behalf of the Working Capital Facility Collateral Agent or the Working
Capital Facility Lenders in respect of such Shared Collateral and (2) any
amounts that are required to be turned over to the Working Capital Facility
Collateral Agent or the Working Capital Facility Lenders under this Agreement,
including pursuant to Section 6.6, (B) in no event shall the
Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one
hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other
hand, have any such liability for or in respect of any indemnification claims
(other than the Qualified Indemnification Claims), (C) in no event shall
the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any
such liability for any such losses, costs, damages or expenses to the extent
caused by or resulting from the gross negligence or willful misconduct of the
Working Capital Facility Collateral Agent, as determined by a final
non-appealable order of a court of competent jurisdiction, and (D) any
amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu
Collateral Agent pursuant to this clause (c)(iv) shall constitute Working
Capital Facility Obligations.  Such
purchase price and cash collateral shall be remitted by wire transfer in
federal funds to such bank account of the Working Capital Facility Collateral
Agent in New York, New York, as the Working Capital Facility Collateral Agent
may designate in writing to the Interim Notes Collateral Agent and Pari Passu
Collateral Agent for such purpose not less than three (3) Business Days
prior to the date on which such amounts are to be so remitted.  Interest shall be calculated to but excluding
the Business Day on which such purchase and sale shall occur if the amounts so
paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral
Agent, as applicable, to the bank account


 


31

















 


designated
by the Working Capital Facility Collateral Agent are received in such bank
account prior to 1:00 p.m. (New York City time) and interest shall be
calculated to and including such Business Day if the amounts so paid by the
Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as
applicable, to the bank account designated by the Working Capital Facility
Collateral Agent are received in such bank account later than 1:00 p.m.
(New York City time).


 


(d)                                 Such purchase shall be expressly made without representation
or warranty of any kind by the Working Capital Facility Collateral Agent and
Working Capital Facility Lenders as to the Working Capital Facility
Indebtedness or otherwise and without recourse to the Working Capital Facility
Collateral Agent or Working Capital Facility Lenders, except that the Working
Capital Facility Collateral Agent and Working Capital Facility Lenders shall
represent and warrant: (i) the amount of the Working Capital Facility
Indebtedness being purchased, (ii) that the Working Capital Facility
Collateral Agent and Working Capital Facility Lenders own the Working Capital
Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the
Working Capital Facility Collateral Agent and Working Capital Facility Lenders
have the right to assign the Working Capital Facility Indebtedness and the
assignment is duly authorized.


 


(e)                                  The Working Capital Facility Collateral Agent agrees that it
shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent
five (5) Business Days prior written notice of its intention to commence
the exercise of any enforcement right or remedy against the Shared
Collateral.  In the event that during
such five Business Day period, the Interim Notes Collateral Agent and the Pari
Passu Collateral Agent shall send to the Working Capital Facility Collateral
Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the
Pari Passu Collateral Agent’s intention to exercise the purchase option given
by the Working Capital Facility Collateral Agent to the Interim Notes
Collateral Agent and Pari Passu Collateral Agent under this Section 5.6,
the Working Capital Facility Collateral Agent shall not commence any
foreclosure or other action to sell or otherwise realize upon the Shared
Collateral or immediately desist from taking any further action; provided,
that the purchase and sale with respect to the Working Capital Facility
Indebtedness provided for herein shall have closed by the Outside Closing Date
and the Working Capital Facility Collateral Agent shall have received payment
in full of the Working Capital Facility Indebtedness as provided for herein on
or before the Outside Closing Date. 
Nothing contained in this Section 5.6(e) shall restrict
or prohibit the Working Capital Facility Collateral Agent from taking action to
the extent that the Working Capital Facility Collateral Agent, in its good
faith judgment, deems such action to be necessary to preserve or protect the
Shared Collateral.


 


5.7                                 Escrow.  In connection with the issuance of any Series of
Secured Debt, any Obligor may enter into an escrow agreement (each, an “Escrow
Agreement”) with an escrow agent (each, an “Escrow Agent”), which
may be the Primary Notes Collateral Agent, the Working Capital Facility Collateral
Agent or any Pari Passu Collateral Agent pursuant to which such Obligor may
deposit with such Escrow Agent, from the proceeds of such Series of
Secured Debt, an amount equal to that amount of interest payments on the Series of
Secured Debt specified in the applicable Working Capital Facility Security
Document, Notes Collateral Document or Pari Passu Collateral Document (the “Escrowed
Interest”) and may grant a security interest to the applicable Escrow Agent
in such Escrowed Interest to secure all Obligations under such Series of
Secured Debt.  Notwithstanding anything
to the contrary set forth in this Agreement, the Escrowed Interest (and any
earnings thereon) for a Series of Secured Debt shall


 


32

















 


not
secure any Series of Secured Debt other than the Obligations under the Series of
Secured Debt to which it is pledged and shall be applied to payment of the Series of
Secured Debt it secures in accordance with the terms of the respective Escrow
Agreement and the other Working Capital Facility Documents, Notes Documents or
Pari Passu Indebtedness Documents, as applicable.


 


5.8                                 Collateral
Shared Equally and Ratably Among Senior Subordinated Secured Parties.  Unless otherwise agreed in writing by the
Interim Notes Collateral Agent, the Working Capital Facility Collateral Agent
and the Pari Passu Collateral Agent, the Secured Parties hereby agree that the
payment and satisfaction of all of the Senior Indebtedness will be secured
Equally and Ratably by the security interests in the Shared Collateral
established in favor of the Interim Notes Collateral Agent (for itself and for
the benefit of the Interim Notes Noteholders) and the Pari Passu Collateral
Agent (for itself and for the benefit of the Pari Passu Lenders).  It is understood and agreed that nothing in
this Section 5.8 is intended to alter the priorities among the
Secured Parties and the Working Capital Facility Collateral Agent and Working
Capital Facility Lenders as provided in Section 2 hereof.


 


5.9                                 Voting.  Following the Discharge of Working Capital
Facility Obligations, in connection with any decision by the Senior
Subordinated Secured Parties under this Agreement, the votes of each Series of
Senior Subordinated Secured Debt entitled to vote thereon shall be cast in the
manner provided by, and in accordance with the decision of the holders of such Series of
Senior Subordinated Secured Debt made pursuant to the terms of the
corresponding Secured Debt Documents.


 


5.10                           Intercreditor
Decisions.


 


(a)                                  No amendment or supplement to any Notes Documents or Pari
Passu Indebtedness Document that changes the date, amount or method of
calculation of the payment of principal of, or interest or premium (if any) on
the Notes Indebtedness or the Pari Passu Indebtedness, in an a way that
adversely affects the rights of any holder of Notes Indebtedness or the Pari
Passu Indebtedness, will become effective without the consent of the Interim
Notes Collateral Agent and Pari Passu Collateral Agent.


 


(b)                                 The Interim Notes Collateral Agent and the Interim Notes
Noteholders, on the one hand, and the Pari Passu Collateral Agent and the Pari
Passu Lenders, on the other hand, may, at any time and from time to time,
without the consent of or notice to any Junior Secured Party and without impairing
or releasing the obligations of any person under this Agreement, (i) amend
any agreement related solely to such Series of Secured Debt in accordance
with the terms thereof, (ii) release anyone liable in any manner under or
in respect of the obligations owing in connection with such Series of
Secured Debt (but only in respect of such obligations), and (iii) waive
any provisions of any agreement related solely to such Series of Secured
Debt.


 


Section 6. Insolvency
Proceedings.


 


6.1                                 Insolvency
Proceedings Generally.  This
Agreement shall be applicable both before and after the filing of any petition
by or against any Obligor under the Bankruptcy Code or the commencement of any
other Insolvency Proceedings and all converted or succeeding


 


33

















 


cases
in respect thereof, and all references herein to any Obligor shall be deemed to
apply to the trustee for any Obligor and any Obligor as
debtor-in-possession.  The relative
rights of the Working Capital Facility Collateral Agent, the Interim Notes
Collateral Agent, the Pari Passu Collateral Agent and the Existing Notes
Collateral Agent in or to any distributions from or in respect of any Shared
Collateral or proceeds of Collateral shall continue after the filing of such
petition on the same basis as prior to the date of the petition, subject to any
court order approving the financing of, or use of cash collateral by, any
Obligor as debtor-in-possession.  This
Agreement shall constitute a “subordination agreement” for the purposes of Section 510(a) of
the Bankruptcy Code and shall be enforceable in any Insolvency Proceeding in
accordance with its terms.


 


6.2                                 Financing Issues  From the incurrence of the Working Capital
Facility Obligations until the Discharge of Working Capital Facility
Obligations, if any Obligor shall be subject to any Insolvency Proceeding and
the Working Capital Facility Collateral Agent or any Working Capital Facility
Lender shall desire (i) to permit the use of “Cash Collateral” (as such
term is defined in Section 363(a) of the Bankruptcy Code)
constituting Shared Collateral or (ii) to permit any Obligor to obtain
financing under Section 364 of the Bankruptcy Code (“DIP
Financing”), then the Notes Collateral Agent, on behalf of itself and the
Noteholders, and the Pari Passu Collateral Agent, on behalf of the Pari Passu
Lenders, will raise no objection to such Cash Collateral use or DIP Financing
(provided that such DIP Financing is on terms and conditions no less favorable
to the Company and its subsidiaries than any other debtor in possession
financing available to the Company in the market) and to the extent the Liens
securing the Working Capital Facility Obligations (subject to the principal
amount thereof not exceeding the Working Capital Facility Debt Cap) are
subordinated to or pari passu with such DIP Financing, the Notes Collateral
Agent and the Pari Passu Collateral Agent will subordinate their respective
Liens on the Shared Collateral to the Liens securing such DIP Financing (and
all obligations relating thereto) in the same priorities and to the same extent
as provided herein with respect to the Working Capital Facility and will not
request adequate protection or any other relief in connection therewith
(except, as expressly agreed by the Working Capital Facility Collateral Agent
or to the extent permitted by this Section 6.2 or by Section 6.4(b));
provided, that (i) the aggregate principal amount of the DIP
Financing plus the aggregate outstanding principal amount of Working Capital
Facility Indebtedness plus the aggregate face amount of any letters of credit
issued and not reimbursed under the Working Capital Facility Agreement does not
exceed the Working Capital Facility Debt Cap and (ii) the Notes Collateral
Agent and the Noteholders, and the Pari Passu Collateral Agent and the Pari
Passu Lenders, retain the right to object to any ancillary agreements or
arrangements regarding Cash Collateral use or the DIP Financing that are
materially prejudicial to their interests.


 


(b)                                 From the incurrence of the Interim Notes Obligations until
the Discharge of Interim Notes Obligations, if any Obligor shall be subject to
any Insolvency Proceeding and the Interim Notes Collateral Agent or any Interim
Notes Noteholder shall desire (i) to permit the use of “Cash Collateral”
(as such term is defined in Section 363(a) of the Bankruptcy
Code) constituting Shared Collateral or (ii) to permit any Obligor to
obtain DIP Financing, then the Existing Notes Collateral Agent, on behalf of
itself and the Existing Notes Noteholders, and the Pari Passu Collateral Agent,
on behalf of the Pari Passu Lenders, will raise no objection to such Cash
Collateral use or DIP Financing and to the extent the Liens securing the
Interim Notes Obligations are subordinated to or pari passu with such DIP
Financing, the Existing Notes


 


34

















 


Collateral
Agent and the Pari Passu Collateral Agent will subordinate their respective
Liens on the Shared Collateral to the Liens securing such DIP Financing (and
all obligations relating thereto) and will not request adequate protection or
any other relief in connection therewith (except, as expressly agreed by the
Interim Notes Collateral Agent or to the extent permitted by this Section 6.2
or by Section 6.4(b).


 


6.3                                 Relief from the
Automatic Stay. Each of the Notes Collateral Agent (on behalf of
itself and the Noteholders) and the Pari Passu Collateral Agent (on behalf of
the Pari Passu Lenders) agree that, from the incurrence of the Working Capital
Facility Obligations until the Discharge of Working Capital Facility
Obligations, none of them shall seek relief from the automatic stay or any
other stay in any Insolvency Proceeding in respect of the Shared Collateral,
without the prior written consent of the Working Capital Facility Collateral
Agent and the Required Working Capital Facility Lenders.  Until the Discharge of Interim Notes
Obligations, each of the Existing Notes Collateral Agent (on behalf of itself
and the Existing Notes Noteholders) and the Pari Passu Collateral Agent (on
behalf of the Pari Passu Lenders) agree that none of them shall seek relief
from the automatic stay or any other stay in any Insolvency Proceeding in
respect of the Shared Collateral, without the prior written consent of the Required
Noteholders under the Interim Notes Indenture and the Required Working Capital
Facility Lenders.


 


6.4                                 Adequate Protection  Subject to Section 6.2, each of
the Notes Collateral Agent (on behalf of itself and the Noteholders) and the
Pari Passu Collateral Agent (on behalf of the Pari Passu Lenders), agree that
none of them shall contest (or support any other Person contesting):


 


(i)                                     any request by
the Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders for adequate protection; or


 


(ii)                                  any objection
by the Working Capital Facility Collateral Agent or the Working Capital
Facility Lenders to any motion, relief, action or proceeding based on the
Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders claiming a lack of adequate protection.


 


Subject
to Section 6.2, each of the Existing Notes Collateral Agent (on
behalf of itself and the Existing Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of the Pari Passu Lenders), agree that none of them
shall contest (or support any other Person contesting):


 


(iii)                               any request by
the Interim Notes Collateral Agent or the Interim Notes Noteholders for
adequate protection; or


 


(iv)                              any objection
by the Interim Notes Collateral Agent or the Interim Notes Noteholders to any
motion, relief, action or proceeding based on the Interim Notes Collateral
Agent or the Interim Notes Noteholders claiming a lack of adequate protection.


 


(b)                                 Notwithstanding the foregoing provisions in this Section 6.4,
in any Insolvency Proceeding:


 


35
















 


(i)                                     if the Working
Capital Facility Collateral Agent or the Working Capital Facility Lenders (or
any subset thereof) are granted adequate protection in the form of additional
collateral in connection with any Cash Collateral use or DIP Financing, then
the Interim Notes Collateral Agent (on behalf of itself or any of the Interim
Notes Noteholders) and the Pari Passu Collateral Agent (on behalf of itself or
any of the Pari Passu Lenders) may seek or request adequate protection in the
form of a Lien on such additional collateral, which Lien will be subordinated
to the Liens securing the Working Capital Facility Obligations (subject to the
principal amount thereof not exceeding the Working Capital Facility Debt Cap)
and such Cash Collateral use or DIP Financing (and all obligations relating
thereto) on the same basis as the other Interim Note Liens or Pari Passu Liens,
as applicable, are so subordinated to the Working Capital Facility Obligations
(subject to the principal amount thereof not exceeding the Working Capital
Facility Debt Cap) under this Agreement; and


 


(ii)                                  in the event
the Interim Notes Collateral Agent (on behalf of itself or any of the Interim
Notes Noteholders) or the Pari Passu Collateral Agent (on behalf of itself or
any of the Pari Passu Lenders) seeks or requests adequate protection in respect
of any Interim Notes Obligations or Pari Passu Obligations, as applicable, and
such adequate protection is granted in the form of additional collateral, then
the Interim Notes Collateral Agent (on behalf of itself or any of the Interim
Notes Noteholders) or the Pari Passu Collateral Agent (on behalf of itself or
any of the Pari Passu Lenders), as applicable, agrees that the Working Capital
Facility Collateral Agent (if Working Capital Facility Obligations are then
outstanding) shall also be granted a senior Lien on such additional collateral
as security for the Working Capital Facility Obligations (subject to the
principal amount thereof not exceeding the Working Capital Facility Debt Cap)
and for any Cash Collateral use or DIP Financing provided by the Working
Capital Facility Lenders and that any Note Lien on such additional collateral
shall be subordinated to the Lien on such collateral securing the Working
Capital Facility Obligations (subject to the principal amount thereof not
exceeding the Working Capital Facility Debt Cap) and any such DIP Financing
provided by the Working Capital Facility Lenders (and all obligations relating
thereto) and to any other Liens granted to the Working Capital Facility Lenders
as adequate protection on the same basis as the other Note Liens or other Pari
Passu Liens, as applicable, are so subordinated to such Working Capital
Facility Obligations (subject to the principal amount thereof not exceeding the
Working Capital Facility Debt Cap) under this Agreement.  Except as otherwise expressly set forth in Section 6.2
or Section 6.8 or in connection with the exercise of remedies with
respect to the Shared Collateral, nothing herein shall limit the rights of any
Junior Secured Party (other than the Existing Notes Collateral Agent and the
Existing Notes Noteholders) from seeking adequate protection with respect to
their rights in the Shared Collateral in any Insolvency Proceeding (including
adequate protection in the form of a cash payment, periodic cash payments or
otherwise) and the Working Capital Facility Collateral Agent and the Working
Capital Facility Lenders agree that none of them will contest (or support any
other person contesting) any such request for adequate protection that complies
with and seeks relief not prohibited by the provisions of this Section 6.  Until the Discharge of Working Capital
Facility Obligations and the Discharge of Interim Notes Obligations, none of
the Existing Notes Collateral Agent and the Existing Notes Noteholders or their
Authorized Representatives shall seek or obtain or permit to be granted
adequate protection with respect to their rights in the Shared Collateral in
any Insolvency Proceeding (including adequate protection in the form of a lien
on additional collateral, cash payment, periodic cash payments or otherwise).


 


36

















 


6.5                                 No Waiver.  Subject to Sections 3.1(a), (e) and
Section 6.4(b)(ii), nothing contained herein shall prohibit or in any
way limit the Working Capital Facility Collateral Agent or any Working Capital
Facility Lender from objecting in any Insolvency Proceeding or otherwise to any
action taken by any Junior Secured Party, including, without limitation, action
by a Junior Secured Party seeking adequate protection with respect to its
rights in the Shared Collateral in any Insolvency Proceeding (including
adequate protection in the form of a cash payment, periodic cash payments or
otherwise) or asserting any of its rights and remedies under the Notes
Documents or Pari Passu Indebtedness Documents, as applicable, or
otherwise.  Subject to Sections 3.1(a),
(e) and Section 6.4(b)(ii), nothing contained herein
shall prohibit or in any way limit the Interim Notes Collateral Agent or any
Interim Notes Noteholder from objecting in any Insolvency Proceeding or
otherwise to any action taken by any Junior Secured Party, including, without
limitation, action by a Junior Secured Party seeking adequate protection with
respect to its rights in the Shared Collateral in any Insolvency Proceeding
(including adequate protection in the form of a cash payment, periodic cash
payments or otherwise) or asserting any of its rights and remedies under the
Notes Documents or Pari Passu Indebtedness Documents, as applicable, or
otherwise.


 


6.6                                 Avoidance
Recoveries.  If the
Working Capital Facility Collateral Agent or any Working Capital Facility
Lender; or Notes Collateral Agent or any Noteholder; or Pari Passu Collateral
Agent or any Pari Passu Lender is required in any Insolvency Proceeding or
otherwise to turn over or otherwise pay to the estate of any Obligor any amount
(a “Recovery”), then the relevant Working Capital Facility Indebtedness,
Notes Indebtedness, or Pari Passu Indebtedness shall be reinstated from and
after the Notice Delivery Date to the extent of such Recovery and the Working
Capital Facility Collateral Agent or any Working Capital Facility Lender, or
Notes Collateral Agent or any Noteholder, or Pari Passu Collateral Agent or any
Pari Passu Lender shall be entitled to all of the rights and remedies with
respect to such Recovery under the Working Capital Facility Documents, relevant
Notes Documents, Pari Passu Indebtedness Documents or otherwise that it would
have had if it had not received the payment that formed the basis for such
Recovery.  If this Agreement shall have
been terminated prior to such Recovery, this Agreement shall be reinstated in
full force and effect from and after the date (the “Notice Delivery Date”)
on which the Working Capital Facility Collateral Agent or any Working Capital
Facility Lender, or Notes Collateral Agent or any Noteholder, or Pari Passu
Collateral Agent or any Pari Passu Lender delivers a written notice to the
Notes Collateral Agent and the Pari Passu Collateral Agent or Working Capital
Facility Collateral Agent, as the case may be, advising the Notes Collateral
Agent and the Pari Passu Collateral Agent or the Working Capital Facility
Collateral Agent, as the case may be, of such Recovery, and such prior termination
shall not diminish, release, discharge, impair or otherwise affect the
obligations of the parties hereto from and after the Notice Delivery Date.


 


6.7                                 Reorganization
Securities.  If, in any
Insolvency Proceeding, debt obligations of the reorganized debtor secured by
Liens upon any assets of the reorganized debtor are distributed pursuant to a
plan of reorganization or similar dispositive restructuring plan, on account of
the Working Capital Facility Obligations, the Notes Obligations and the Pari Passu
Obligations, then, to the extent the debt obligations distributed on account of
the Working Capital Facility Obligations (subject to the principal amount
thereof not exceeding the Working Capital Facility


 


37

















 


Debt
Cap), the Notes Obligations and the Pari Passu Obligations are secured by Liens
on the same assets, the provisions of this Agreement will survive the
distribution of such debt obligations pursuant to such plan and will apply with
like effect to the Liens securing such debt obligations.  If, in any Insolvency Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any assets of the
reorganized debtor are distributed pursuant to a plan of reorganization or
similar dispositive restructuring plan, on account of the Interim Notes
Obligations, the Existing Notes Obligations and the Pari Passu Obligations,
then, to the extent the debt obligations distributed on account of the Interim
Notes Obligations, the Existing Notes Obligations and the Pari Passu
Obligations are secured by Liens on the same assets, the provisions of this
Agreement will survive the distribution of such debt obligations pursuant to
such plan and will apply with like effect to the Liens securing such debt
obligations.  Notwithstanding the
foregoing, if any Existing Notes Noteholder shall receive in respect of their
Lien on any Shared Collateral any debt or equity securities that are issued by
a reorganized debtor pursuant to a plan of reorganization or similar dispositive
restructuring plan in connection with an Insolvency Proceeding, then unless
such distribution is made under a plan that is consented to by the affirmative
vote of the class composed of the secured claims of Interim Notes Noteholders,
all such debt or equity securities so received shall be paid or delivered
directly to the Controlling Collateral Agent (to be held and/or applied by the
Controlling Collateral Agent in accordance with the terms of Section 4.1
hereof).


 


6.8                                 Asset Sales in
Bankruptcy.  Each of the
Notes Collateral Agent (for itself and each of the Noteholders) and the Pari
Passu Collateral Agent (for itself and each of the Pari Passu Lenders) agree
that none of them shall object to or oppose a sale or other disposition of any
Collateral free and clear of security interests, liens or other claims under Section 363
of the Bankruptcy Code if Working Capital Facility Indebtedness is outstanding
and the Working Capital Facility Collateral Agent has consented to such sale or
disposition of such assets, and such motion does not impair the rights of the
Noteholders or the Pari Passu Lenders under Section 363(k) of the
Bankruptcy Code; provided, that the Working Capital Facility Debt
Cap shall be reduced by an amount equal to the net cash proceeds of such sale
or other disposition which are used to pay the principal or face amount of the
Working Capital Facility Indebtedness. 
Each of the Existing Notes Collateral Agent (for itself and each of the
Existing Notes Noteholders) and the Pari Passu Collateral Agent (for itself and
each of the Pari Passu Lenders) agrees that none of them shall (i) object
to or oppose a sale or other disposition of any Collateral free and clear of
security interests, liens or other claims under Section 363 of the
Bankruptcy Code if the Primary Notes Collateral Agent has consented to such
sale or disposition of such assets, or (ii) credit bid for any assets that
are subject to any Disposition in any Insolvency Proceeding in accordance with Section 363(k) of
the Bankruptcy Code or otherwise.


 


6.9                                 Separate Grants
of Security and Separate Classification.  Each Secured Party acknowledges and agrees
that (a) the grants of Liens pursuant to the Working Capital Facility
Documents and the Interim Notes Documents and the Pari Passu Indebtedness
Documents and the Existing Notes Documents constitute four separate and
distinct grants of Liens and (b) because of their differing rights in the
Collateral, the secured claims in respect of the Working Capital Facility
Indebtedness, the Interim Notes Indebtedness, the Pari Passu Indebtedness and
the Existing Notes Indebtedness are fundamentally different and must be


 


38

















 


separately
classified in any plan of reorganization proposed or adopted in an Insolvency
Proceeding, and none of them shall seek in any Insolvency Proceeding to have
the Working Capital Facility Indebtedness, on one hand, the Interim Notes
Indebtedness, on another hand, the Pari Passu Indebtedness, on another hand, or
the Existing Notes Indebtedness, on another hand, on any of them, be treated as
part of the same class of creditors or shall oppose any pleading or motion to
have the Working Capital Facility Indebtedness, on one hand, the Interim Notes
Indebtedness, on another hand, the Pari Passu Indebtedness, on another hand, or
the Existing Notes Indebtedness, on another hand, and each of them, to be
treated as separate classes of creditors. 
Notwithstanding the foregoing, if it is held that the secured claims of
the Working Capital Facility Indebtedness, the Interim Notes Indebtedness, the
Pari Passu Indebtedness and/or the Existing Notes Indebtedness in respect of
the Collateral constitute only one secured claim (rather than separate classes
of secured claims as provided herein), then the Secured Parties hereby
acknowledge and agree that all distributions on Collateral securing the
applicable components of such secured claim shall be made as if there were
separate classes of secured claims against the Company and the other Obligors
in respect of such Collateral, all in accordance with the priority set forth in
Section 4.1 hereof.


 


Section 7. Reliance;
Waivers: etc.


 


7.1                                 Reliance
The consent by the Working Capital Facility Lenders to the Lien on the Shared
Collateral granted to the Notes Collateral Agent on behalf of the Noteholders,
and to the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, and
all loans and other extensions of credit made or deemed made on and after the
date hereof by the Working Capital Facility Collateral Agent or any of the
Working Capital Facility Lenders to the Obligors, shall be deemed to have been
given and made in reliance upon this Agreement. 
Each of the Existing Notes Collateral Agent (on behalf of itself and the
Existing Notes Noteholders), the Interim Notes Collateral Agent (on behalf of
itself and the Interim Notes Noteholders) and the Pari Passu Collateral Agent
(on behalf of itself and the Pari Passu Lenders) acknowledge that it and the
relevant Noteholders and Pari Passu Lenders, as applicable, have, independently
and without reliance on the Working Capital Facility Collateral Agent or any
Working Capital Facility Lender, and based on documents and information deemed
by them appropriate, made their own credit analysis and decision to enter into
the Indentures or acquire the Interim Notes Indebtedness or the Existing Notes
Indebtedness or the Pari Passu Indebtedness Documents, as applicable, and to
enter into this Agreement and the transactions contemplated hereby and thereby,
and they will continue to make their own credit decision in taking or not
taking any action under the Interim Notes Documents, the Existing Notes
Documents or the Pari Passu Indebtedness Documents, as applicable, or this
Agreement.  The consent by the Interim
Notes Noteholders and the Interim Notes Collateral Agent to the Lien on the
Shared Collateral granted to the Working Capital Facility Collateral Agent on
behalf of the Working Capital Facility Lenders, to the Existing Notes
Collateral Agent on behalf of the Existing Notes Noteholders, and to the Pari
Passu Collateral Agent on behalf of the Pari Passu Lenders, and all loans and
other extensions of credit made or deemed made before, on and after the date
hereof by the Interim Notes Collateral Agent or any of the Interim Notes
Noteholders to the Obligors, and all Interim Notes acquired, shall be deemed to
have been given and made, or acquired, as applicable, in reliance upon this
Agreement.  Each of the Existing Notes
Collateral Agent (on behalf of itself


 


39

















 


and
the Existing Notes Noteholders), the Working Capital Facility Collateral Agent
(on behalf of itself and the Working Capital Facility Lenders) and the Pari
Passu Collateral Agent (on behalf of itself and the Pari Passu Lenders)
acknowledge that it and the relevant Noteholders and Working Capital Facility
Lenders and Pari Passu Lenders, as applicable, have, independently and without
reliance on the Interim Notes Collateral Agent, the Interim Notes Trustee, or
any Interim Notes Noteholder, and based on documents and information deemed by
them appropriate, made their own credit analysis and decision to enter into the
Existing Notes Documents, the Working Capital Facility Documents or the Pari
Passu Indebtedness Documents, as applicable, this Agreement and the
transactions contemplated hereby and thereby, and they will continue to make
their own credit decision in taking or not taking any action under the Existing
Notes Documents, the Working Capital Facility Documents or the Pari Passu
Indebtedness Documents, as applicable, or this Agreement.


 


(b)                                 The Senior Subordinated Secured Parties hereby acknowledge,
confirm and agree that, for the purposes of determining the Working Capital
Facility Debt Cap, the Working Capital Facility Collateral Agent and the
Working Capital Facility Lenders shall be entitled to conclusively rely, and
shall be fully protected in conclusively relying, upon, without further
inquiry, each certificate duly executed by the president, the chief executive officer,
the chief financial officer, the treasurer, or the principal accounting officer
of the Company in the form established by the Working Capital Facility
Agreement certifying that such principal or face amount of Working Capital
Facility Indebtedness is, at the time of its incurrence, not greater than the
Working Capital Facility Debt Cap, taking into account the principal or face
amount of any other Working Capital Facility Indebtedness that will remain
outstanding immediately following the incurrence of such additional Working
Capital Facility Indebtedness.  Such
certificate shall be addressed to and delivered to the Notes Collateral Agent
substantially concurrently with the delivery of such certificate to the Working
Capital Facility Collateral Agent and/or the Working Capital Facility Lenders; provided,
that the Working Capital Facility Collateral Agent’s and Working Capital
Facility Lenders’ ability to rely on such certificate shall not be conditioned
on the receipt of such certificate by the Notes Collateral Agent or the Pari
Passu Collateral Agent.


 


(c)                                  The Working Capital Facility Collateral Agent, the Working
Capital Facility Lenders, the Notes Collateral Agent and the Noteholders hereby
acknowledge, confirm and agree that, for the purposes of determining the Pari
Passu Indebtedness Cap, the Pari Passu Collateral Agent and the Pari Passu
Lenders shall be entitled to conclusively rely, and shall be fully protected in
conclusively relying, upon, without further inquiry, each certificate duly executed
by the president, the chief executive officer, the chief financial officer, the
treasurer, or the principal accounting officer of the Company in the form
established by the applicable Pari Passi Indebtedness Document certifying that
such principal or face amount of Pari Passu Indebtedness is, at the time of its
incurrence, not greater than the Pari Passu Indebtedness Cap, taking into
account the principal or face amount of any other Pari Passu Indebtedness that
will remain outstanding immediately following the incurrence of such additional
Pari Passu Indebtedness.  Such
certificate shall be addressed to and delivered to the Notes Collateral Agent
and the Working Capital Facility Collateral Agent substantially concurrently
with the delivery of such certificate to the Pari Passu Collateral Agent and/or
the Pari Passu Lenders; provided, that the Pari Passu Collateral
Agent’s and Pari Passu Lenders’ ability to rely on such certificate shall not
be conditioned on the receipt of such certificate by the Notes Collateral Agent
or the Working Capital Facility Collateral Agent.


 


40

















 


7.2                                 No Warranties
or Liability.  Each of the
Notes Collateral Agent (on behalf of itself and the Noteholders) and the Pari
Passu Collateral Agent (on behalf of itself and the Pari Passu Lenders)
acknowledges and agrees that neither the Working Capital Facility Collateral
Agent nor any Working Capital Facility Lender has made any express or implied
representation or warranty, including, without limitation, with respect to the
execution, validity, legality, completeness, collectibility, or enforceability
of any of the Working Capital Facility Obligations or the Working Capital
Facility Documents.  The Working Capital
Facility Collateral Agent and the Working Capital Facility Lenders will be
entitled to manage and supervise their respective loans and extensions of
credit to the Company in accordance with law and as they may otherwise, in
their sole discretion, deem appropriate, and the Working Capital Facility
Collateral Agent and the Working Capital Facility Lenders may manage their
loans and extensions of credit without regard to any rights or interests that
any of the Senior Subordinated Secured Parties have in the Shared Collateral or
otherwise, except as otherwise expressly provided in this Agreement.  Neither the Working Capital Facility
Collateral Agent nor any Working Capital Facility Lender shall have any duty to
any of the Senior Subordinated Secured Parties to act or refrain from acting in
a manner which allows, or results in, the occurrence or continuance of an event
of default or default under any agreements with any Obligor (including, without
limitation, the Notes Documents and the Pari Passu Indebtedness Documents),
regardless of any knowledge thereof which they may have or be charged with.


 


Each
of the Working Capital Facility Collateral Agent (on behalf of itself and the
Working Capital Facility Lenders, the Existing Notes Collateral Agent (on
behalf of itself and the Existing Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) acknowledges
and agrees that neither the Interim Notes Trustee, Interim Notes Collateral
Agent nor any Interim Notes Noteholder has made any express or implied
representation or warranty, including, without limitation, with respect to the
execution, validity, legality, completeness, collectability, or enforceability
of any of the Interim Notes Obligations or the Interim Notes Documents or any
other Obligations or Secured Debt Documents or this Agreement.  The Interim Notes Trustee, Interim Notes
Collateral Agent and the Interim Notes Noteholders will be entitled to manage
and supervise their respective loans and extensions of credit to the Company in
accordance with law and as they may otherwise, in their sole discretion, deem
appropriate, and the Interim Notes Trustee, Interim Notes Collateral Agent and
the Interim Notes Noteholders may manage their loans and extensions of credit
without regard to any rights or interests that any of the other Secured Parties
have in the Shared Collateral or otherwise, except as otherwise expressly
provided in this Agreement.  Neither the
Interim Notes Trustee, Interim Notes Collateral Agent nor any of the Interim
Notes Noteholders shall have any duty to any other Secured Parties to act or
refrain from acting in a manner which allows, or results in, the occurrence or
continuance of an event of default or default under any agreements with any
Obligor (including, without limitation, the Working Capital Facility Documents,
the Notes Documents and the Pari Passu Indebtedness Documents), regardless of
any knowledge thereof which they may have or be charged with.


 


7.3                                 No Waiver of Lien Priorities; Effectiveness as to Certain
Persons No right of the Working Capital
Facility Lenders, the Working Capital Facility Collateral Agent, the Interim
Notes Collateral Agent or the Interim Notes Noteholders, or any of them, to
enforce any provision of this Agreement shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of any Obligor or by any
act or failure to act by any Working Capital


 


41

















 


Facility
Lender or the Working Capital Facility Collateral Agent or the Interim Notes
Collateral Agent or the Interim Notes Noteholders, as applicable, or by any
noncompliance by any Person with the terms, provisions and covenants of this
Agreement, any of the Working Capital Facility Documents, any of the Notes
Documents or any of the Pari Passu Indebtedness Documents, regardless of any
knowledge thereof which the Working Capital Facility Collateral Agent or the
Working Capital Facility Lenders, or the Interim Notes Collateral Agent or the
Interim Notes Noteholders, or any of them, may have or be otherwise charged
with.


 


Except during
any period in which Working Capital Facility Documents are in effect and the
Working Capital Facility Lenders have any obligation to extend or maintain
credit thereunder or Working Capital Facility Indebtedness is outstanding
thereunder, the provisions of this Agreement in favor of the Working Capital
Facility Collateral Agent and the Working Capital Facility Lenders, or relating
to the Working Capital Facility Indebtedness or any Working Capital Facility
Documents, or any Liens thereunder or Collateral therefor, shall not be
effective, and the Interim Notes Collateral Agent shall constitute the
Controlling Collateral Agent for all purposes hereof, and the Interim Notes
Noteholders and the Interim Notes Collateral Agent shall not constitute Junior
Secured Parties hereunder and shall instead constitute Controlling Secured
Parties hereunder.


 


Except during
any period in which Pari Passu Indebtedness Documents are in effect and the
Pari Passu Lenders have any obligation to extend or maintain credit thereunder
or Pari Passu Indebtedness is outstanding thereunder, the provisions of this
Agreement in favor of the Pari Passu Collateral Agent and the Pari Passu
Lenders, or relating to the Pari Passu Indebtedness or any Pari Passu
Documents, or any Liens thereunder or Collateral therefor, shall not be
effective.


 


(b)                                 Without in any way limiting the generality of the foregoing
paragraph (but subject to the rights of the Obligors under the Working Capital
Facility Documents and subject to the provisions of Section 5.3(a)),
the Working Capital Facility Lenders, the Working Capital Facility Collateral
Agent or any of one or more of them may, at any time and from time to time,
without the consent of, or notice to, any Junior Secured Party, without
incurring any liabilities to any Junior Secured Party and without impairing or
releasing the lien priorities and other benefits provided in this Agreement
(even if any right of subrogation or other right or remedy of any Junior
Secured Party is affected, impaired or extinguished thereby) do any one or more
of the following:


 


(i)                                     change the
manner, place or terms of payment or change or extend the time of payment of,
or renew, exchange, amend, increase or alter, the terms of any of the Working
Capital Facility Indebtedness or any Lien in any Working Capital Facility
Collateral or guaranty thereof or any liability of any Obligor or any other
Person to any of the Working Capital Facility Lenders or the Working Capital
Facility Collateral Agent (including, without limitation, any increase in or
extension of any of the Working Capital Facility Indebtedness, without any
restriction as to the amount, tenor or terms of any such increase or extension,
subject to the principal amount thereof not exceeding the Working Capital
Facility Debt Cap) or otherwise amend, renew, exchange, extend, modify or
supplement in any manner any of the Working Capital Facility Documents;


 


42

















 


(ii)                                  sell, exchange,
release, surrender, realize upon, enforce or otherwise deal with in any manner
and in any order any part of the Working Capital Facility Collateral or any
liability of any Obligor or any other Person to any of the Working Capital
Facility Lenders or the Working Capital Facility Collateral Agent, or any
liability incurred directly or indirectly in respect thereof;


 


(iii)                               settle or
compromise any Working Capital Facility Obligations or any other liability of
any Obligor or any other Person or any Lien therefor or any liability incurred
directly or indirectly in respect thereof and apply any sums by whomsoever paid
and however realized to any liability (including, without limitation, any of
the Working Capital Facility Indebtedness) in any manner or order; and


 


(iv)                              exercise or
delay in or refrain from exercising any right or remedy against any Obligor or
any other Person or any Working Capital Facility Collateral or any Lien
therefor, elect any remedy and otherwise deal freely with any Obligor or any
other Person or any Working Capital Facility Collateral or any Lien therefor.


 


Without in
any way limiting the generality of the foregoing paragraphs (but subject to the
rights of the Obligors under the Interim Notes Documents and subject to the
provisions of Section 5.3(a)), the Interim Notes Noteholders, the
Interim Notes Trustee, the Interim Notes Collateral Agent or any of one or more
of them may, at any time and from time to time, without the consent of, or
notice to, any Working Capital Facility Lender or the Working Capital Facility
Collateral Agent or any other Secured Party, without incurring any liabilities
to any other Secured Party and without impairing or releasing the lien
priorities and other benefits provided in this Agreement (even if any right of
subrogation or other right or remedy of any other Secured Party is affected,
impaired or extinguished thereby) do any one or more of the following:


 


(i)                                     change the
manner, place or terms of payment or change or extend the time of payment of,
or renew, exchange, amend, increase or alter, the terms of any of the Interim
Notes Obligations or any Lien in any Collateral or guaranty thereof or any
liability of any Obligor or any other Person to any of the Interim Notes
Noteholders, the Interim Notes Collateral Agent or any of one or more of them
(including, without limitation, any increase in or extension of any of the
Interim Notes Obligations, without any restriction as to the amount, tenor or
terms of any such increase or extension, or otherwise amend, renew, exchange,
extend, modify or supplement in any manner any of the Interim Notes Obligations
or the Interim Notes Documents;


 


(ii)                                  except as
otherwise expressly provided herein, sell, exchange, release, surrender,
realize upon, enforce or otherwise deal with in any manner and in any order any
part of the Collateral or any liability of any Obligor or any other Person to
any of the Interim Notes Noteholders, the Interim Notes Collateral Agent or any
of one or more of them, or any liability incurred directly or indirectly in
respect thereof;


 


(iii)                               settle or
compromise any Interim Notes Obligations or any other liability of any Obligor
or any other Person or any Lien therefor or any liability incurred directly or
indirectly in respect thereof and apply any sums by whomsoever paid and however
realized to any liability (including, without limitation, any of the Interim
Notes Obligations) in any manner


 


43

















 


or order (subject in the
case of Proceeds of Shared Collateral, to the provisions of this Agreement);
and


 


(iv)                              exercise or
delay in or refrain from exercising any right or remedy against any Obligor or
any other Person or any Collateral or any Lien therefor, elect any remedy and
otherwise deal freely with any Obligor or any other Person or any Collateral or
any Lien therefore (subject in the case of Proceeds of Shared Collateral, to
the provisions of this Agreement).


 


(c)                                  Each of the Notes Collateral Agent (on behalf of itself and
the Noteholders) and the Pari Passu Collateral Agent (on behalf of itself and
the Pari Passu Lenders) also agrees that the Working Capital Facility Lenders
and the Working Capital Facility Collateral Agent shall have no liability to
the Notes Collateral Agent or any Noteholder, on the one hand, and the Pari
Passu Collateral Agent or any Pari Passu Lender, on the other hand, and each of
the Notes Collateral Agent (on behalf of itself and the Noteholders) and the
Pari Passu Collateral Agent (on behalf of itself and the Pari Passu Lenders),
hereby waives any claim against any Working Capital Facility Lender or the
Working Capital Facility Collateral Agent, arising out of any and all actions
which any of the Working Capital Facility Lenders or the Working Capital
Facility Collateral Agent may take or permit or omit to take (if not in
violation of the provisions of this Agreement or applicable law ) with respect
to: (i) any of the Working Capital Facility Documents, (ii) the
collection of any of the Working Capital Facility Obligations or (iii) the
foreclosure upon, or sale, liquidation or other disposition of, any of the
Working Capital Facility Collateral in accordance with this Agreement and
applicable law.  Each of the Notes
Collateral Agent (on behalf of itself and the Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders), agrees that
the Working Capital Facility Lenders and the Working Capital Facility
Collateral Agent has no duty to them in respect of the maintenance or
preservation of the Working Capital Facility Collateral, the Working Capital
Facility Obligations or otherwise except as expressly set forth herein.


 


Each of the
Working Capital Facility Collateral Agent (on behalf of itself and the Working
Capital Facility Lenders), the Existing Notes Collateral Agent (on behalf of
itself and the Existing Notes Noteholders) and the Pari Passu Collateral Agent
(on behalf of itself and the Pari Passu Lenders) also agrees that the Interim
Notes Noteholders and the Interim Notes Collateral Agent shall have no liability
to the Working Capital Facility Collateral Agent or any Working Capital
Facility Lender, on one hand, the Existing Notes Collateral Agent or any
Existing Notes Noteholder, on another hand, and the Pari Passu Collateral Agent
or any Pari Passu Lender, on another hand, and each of the Working Capital
Facility Collateral Agent (on behalf of itself and the Working Capital Facility
Lenders), the Existing Notes Collateral Agent (on behalf of itself and the
Existing Notes Noteholders) and the Pari Passu Collateral Agent (on behalf of
itself and the Pari Passu Lenders), hereby waives any claim against any Interim
Notes Noteholders and the Interim Notes Collateral Agent or the Interim Notes
Trustee, arising out of any and all actions which any of the Interim Notes
Noteholders and the Interim Notes Collateral Agent may take or permit or omit
to take (if not in violation of the provisions of this Agreement or applicable
law) with respect to: (i) any of the Interim Notes Documents, (ii) the
collection of any of the Interim Notes Obligations or (iii) the
foreclosure upon, or sale, liquidation or other disposition of, any of the
Collateral in accordance with this Agreement and applicable law.  Each


 


44

















 


of the Working Capital Facility
Collateral Agent (on behalf of itself and the Working Capital Facility
Lenders), the Existing Notes Collateral Agent (on behalf of itself and the
Existing Notes Noteholders) and the Pari Passu Collateral Agent (on behalf of
itself and the Pari Passu Lenders), agrees that the Interim Notes Noteholders
and the Interim Notes Collateral Agent has no duty to them in respect of the
maintenance or preservation of the Collateral, the Interim Notes Obligations or
otherwise except as expressly set forth herein.


 


(d)                                 Each of the Notes Collateral Agent (on behalf of itself and
the Noteholders) and the Pari Passu Collateral Agent (on behalf of itself and
the Pari Passu Lenders) agrees not to assert and hereby waives, to the fullest
extent permitted by law, any right to demand, request, plead or otherwise
assert or otherwise claim the benefit of, any marshalling, appraisal, valuation
or other similar right that may otherwise be available under applicable law or
any other similar rights a junior secured creditor may have under applicable
law.


 


7.4                                 Obligations
Unconditional.  All rights,
interests, agreements and obligations of the Working Capital Facility
Collateral Agent and the Working Capital Facility Lenders, the Existing Notes
Collateral Agent and the Existing Notes Noteholders, the Interim Notes
Collateral Agent and the Interim Notes Noteholders,  and the Pari Passu Collateral Agent and the
Pari Passu Lenders, respectively, hereunder shall remain in full force and
effect irrespective of:


 


(a)                                  any lack of validity or enforceability of any Working
Capital Facility Document, any Notes Documents or any Pari Passu Indebtedness
Document;


 


(b)                                 any change in the time, manner or place of payment of, or in
any other terms of, all or any of the Working Capital Facility Obligations,
Notes Obligations or Pari Passu Obligations, or any amendment or waiver or
other modification (including, without limitation, any increase in the amount
thereof, whether by course of conduct or otherwise) of the terms of (i) the
Working Capital Facility Agreement or any other Working Capital Facility
Document, (ii) the Indentures or any other Notes Documents, or (iii) any
Pari Passu Indebtedness Document;


 


(c)                                  any amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the Working
Capital Facility Obligations, Notes Obligations or Pari Passu Obligations, any
Secured Debt Documents, or any guarantee of any of the foregoing;


 


(d)                                 the commencement of any Insolvency Proceeding in respect of
any Obligor; or


 


(e)                                  any other circumstances which otherwise might constitute a
defense available to, or a discharge of, any Obligor in respect of any of the
Working Capital Facility Obligations, the Interim Notes Obligations, the Pari
Passu Indebtedness or the Existing Notes Obligations, or of any Junior Secured
Party in respect of this Agreement.


 


(f)                                    Nothing in this Section 7.4 shall be construed
as a consent or waiver by the Working Capital Facility Collateral Agent or any
Working Capital Facility Lender to any action by the Notes Collateral Agent or
the Noteholders or under any of the Notes Documents, or any action by the Pari
Passu Collateral Agent and the Pari Passu Lenders under any of the Pari


 


45

















 


Passu
Indebtedness Documents, that is not otherwise permitted under the Working
Capital Facility Documents.  Nothing in
this Section 7.4 shall be construed as a consent or waiver by the
Interim Notes Collateral Agent or any Interim Notes Noteholder to any action by
the Working Capital Facility Collateral Agent or any Working Capital Facility
Lender or under any of the Working Capital Facility Documents, or any action by
the Existing Notes Collateral Agent or the Existing Notes Noteholders or under
any of the Existing Notes Documents, or any action by the Pari Passu Collateral
Agent and the Pari Passu Lenders under any of the Pari Passu Indebtedness
Documents, that is not otherwise permitted under the Interim Notes Documents.


 


Section 8. Miscellaneous.


 


8.1                                 Conflicts.  In the event of any conflict between the
provisions of this Agreement and the provisions of any of the Working Capital
Facility Documents, any of the Notes Documents or the Pari Passu Indebtedness
Documents, the provisions of this Agreement shall govern.  In the event of any conflict between any
instruction, request or direction given by the Controlling Collateral Agent to
any Trustee or any Junior Secured Party pursuant to, and in accordance with,
this Agreement and any instruction, request or direction given by any Working
Capital Facility Lender or the Interim Notes Collateral Agent (unless it is
acting as the Controlling Collateral Agent) or the Existing Notes Collateral
Agent or Pari Passu Collateral Agent or any Interim Notes Noteholder or Pari
Passu Lender or Existing Notes Noteholder to any Trustee or any Junior Secured
Party pursuant to, and in accordance with, this Agreement, the instruction,
request or direction given by the Controlling Collateral Agent shall govern.


 


8.2                                 Continuing Nature
of this Agreement.  This
Agreement shall continue to be effective until only one Series of Secured
Debt remains outstanding.  This is a
continuing agreement of lien subordination, and the Working Capital Facility
Collateral Agent and Working Capital Facility Lenders may continue, at any time
and without notice to any Junior Secured Party, to extend credit and other
financial accommodations and lend monies to or for the benefit of the Obligors
in reliance on this Agreement.  Each of
the Working Capital Facility Collateral Agent, on behalf of itself and, to the
extent permitted by applicable law, the Working Capital Facility Lenders, the
Notes Collateral Agent, on behalf of itself and, to the extent permitted by
applicable law, the Noteholders, and the Pari Passu Collateral Agent, on behalf
of itself and, to the extent permitted by applicable law, the Pari Passu
Lenders, hereby waives any right it may have under applicable law to revoke
this Agreement or any of the provisions of this Agreement.  The terms of this Agreement shall survive,
and shall continue in full force and effect, in any Insolvency Proceeding.


 


8.3                                 Amendments;
Waivers.  No amendment, modification or
waiver of any of the provisions of this Agreement shall be deemed to be made
unless the same shall be in writing signed by the Existing Notes Collateral
Agent, the Interim Notes Collateral Agent, the Pari Passu Collateral Agent (if
any Pari Passu Indebtedness shall be outstanding) (and with respect to any such
waiver, amendment or modification which by the terms of this Agreement requires
the Company’s consent or which increases the obligations or reduces the rights
of the Company or any Guarantor, with the consent of the Company) and the
Working Capital Facility Collateral Agent (if any Working Capital Facility
Obligations shall be outstanding) and each waiver, if any, shall be a waiver
only with respect to the specific instance involved and shall in no way impair
the rights of the parties making such waiver or the obligations of the other
parties to such party in


 


46

















 


any
other respect or at any other time. 
Except as expressly provided herein, the Company and any other Obligor
shall not have any right to amend, modify or waive any provision of this
Agreement, nor shall any consent or signed writing be required of any of them
to effect any amendment, modification or waiver of any provision of this
Agreement.


 


8.4                                 Information
Concerning Financial Condition of the Company and its Subsidiaries.  The Working Capital Facility Collateral Agent
and the Working Capital Facility Lenders, in the first instance, the Notes
Collateral Agent and the Noteholders, in the second instance, and the Pari
Passu Collateral Agent and the Pari Passu Lenders, in the third instance, shall
each be responsible for keeping themselves informed of (a) the financial
condition of the Company and its subsidiaries and all Obligors in respect of
the Working Capital Facility Obligations or the Notes Obligations or the Pari
Passu Obligations, as the case may be, and (b) all other circumstances
bearing upon the risk of nonpayment of the Working Capital Facility
Obligations, the Notes Obligations or the Pari Passu Obligations.  The Working Capital Facility Collateral Agent
and the Working Capital Facility Lenders and the Interim Notes Collateral Agent
and the Interim Notes Noteholders each shall have no duty to advise any other
Secured Party of information known to it or them regarding such condition or
any such circumstances or otherwise.  In
the event the Working Capital Facility Collateral Agent or any of the Working
Capital Facility Lenders, or the Interim Notes Collateral Agent or any of the
Interim Notes Noteholders, in each case in its or their sole discretion,
undertakes at any time or from time to time to provide any such information to
any other Secured Party, it or they shall be under no obligation (i) to
provide any additional information or to provide any such information on any
subsequent occasion, (ii) to undertake any investigation or (iii) to
disclose any information which, pursuant to accepted or reasonable commercial
finance practices, such party wishes to maintain confidential, so long as the
failure to disclose such information will not render information which was
disclosed materially misleading.  None of
the Senior Subordinated Secured Parties shall have a duty to advise the Working
Capital Facility Collateral Agent or any Working Capital Facility Lender or any
other Secured Party of information known to it or them regarding such condition
or any such circumstances or otherwise. 
In the event any Junior Secured Party, in its or their sole discretion,
undertakes at any time or from time to time to provide any such information to
the Working Capital Facility Collateral Agent or any Working Capital Facility
Lender, it or they shall be under no obligation (i) to provide any
additional information or to provide any such information on any subsequent
occasion, (ii) to undertake any investigation or (iii) to disclose
any information which, pursuant to accepted or reasonable commercial finance
practices, such party wishes to maintain confidential, so long as the failure
to disclose such information will not render information which was disclosed
materially misleading.


 


8.5                                 Application of
Payments.  As among
the Working Capital Facility Collateral Agent and the Working Capital Facility
Lenders, in the first instance, and the Notes Collateral Agent and the
Noteholders, in the second instance, and the Pari Passu Collateral Agent and
the Pari Passu Lenders, in the third instance, all payments received by the
Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders may be applied, reversed and reapplied, in whole or in part, to such
part of the Working Capital Facility Indebtedness (subject to the principal
amount thereof not exceeding the Working Capital Facility Debt Cap) as the
Working Capital Facility Collateral Agent and/or the Working Capital Facility
Lenders, in their sole discretion, deem appropriate.  As among the Working Capital Facility
Collateral Agent and


 


47

















 


the
Working Capital Facility Lenders, in the first instance, and the Interim Notes
Collateral Agent, the Interim Notes Trustee, and the Interim Notes Noteholders,
in the second instance, and the Existing Notes Collateral Agent and the
Existing Notes Noteholders, in the third instance, and the Pari Passu
Collateral Agent and the Pari Passu Lenders, in the fourth instance, all
payments received by the Interim Notes Collateral Agent or the Interim Notes
Noteholders may be applied, reversed and reapplied, in whole or in part, to
such part of the Interim Notes Obligations as the Interim Notes Collateral
Agent and/or the Interim Notes Noteholders, in their sole discretion, deem
appropriate.  The Notes Collateral Agent
(on behalf of itself and the Noteholders) and the Pari Passu Collateral Agent
(on behalf of itself and the Pari Passu Lenders) assents to any extension or postponement
of the time of payment of the Working Capital Facility Indebtedness or any part
thereof and to any other indulgence with respect thereto, to any substitution,
exchange or release of any Shared Collateral which may at any time secure any
part of the Working Capital Facility Obligations and to the addition or release
of any other Person primarily or secondarily liable therefor.  The Working Capital Facility Collateral Agent
(on behalf of itself and the Working Capital Facility Lenders) and the Existing
Notes Collateral Agent (on behalf of itself and the Existing Notes Noteholders)
and the Pari Passu Collateral Agent (on behalf of itself and the Pari Passu
Lenders) assents to any extension or postponement of the time of payment of the
Interim Notes Obligations or any part thereof and to any other indulgence with
respect thereto, to any substitution, exchange or release of any Shared
Collateral which may at any time secure any part of the Existing Notes
Obligations and to the addition or release of any other Person primarily or
secondarily liable therefor.


 


8.6                                 Notices.  All notices to the Existing Notes
Noteholders, the Interim Notes Noteholders, the Pari Passu Lenders and the
Working Capital Facility Lenders permitted or required under this Agreement may
be sent to the Existing Notes Collateral Agent, the Interim Notes Collateral
Agent, the Pari Passu Collateral Agent and the Working Capital Facility
Collateral Agent, respectively.  Unless
otherwise specifically provided herein, any notice or other communication
herein required or permitted to be given shall be in writing and may be
personally served, telecopied, electronically mailed or sent by courier service
or U.S. mail and shall be deemed to have been given when delivered in person or
by courier service, upon receipt of a telecopy or electronic mail or four (4) Business
Days after deposit in the U.S. mail (registered or certified, with postage
prepaid and properly addressed).  For the
purposes hereof, the addresses of the parties hereto shall be as set forth
below each party’s name on the signature pages hereto, or, as to each
party, at such other address as may be designated by such party in a written
notice to all of the other parties.


 


8.7                                 Joinder of Additional Secured Parties The Pari Passu Collateral Agent and the Pari Passu Lenders
may, upon compliance with the relevant provisions of the Secured Debt
Documents, become parties hereto by executing and delivering to the Controlling
Collateral Agent and the Interim Notes Collateral Agent (a) a joinder
agreement in the form attached hereto as Exhibit A (“Joinder
Agreement”) and (b) copy of the agreements evidencing such Pari Passu
Indebtedness to which such Person is a party. 
Upon the execution and delivery of any such copy of this Agreement by
any such Person, such Person, shall, upon delivery thereof to the Controlling
Collateral Agent and the Interim Notes Collateral Agent, thereafter become a
party to this Agreement.


 


48
















 


(b)                                 The Working Capital Facility Collateral Agent may, upon
compliance with the relevant provisions of the Secured Debt Documents, become a
party hereto by executing and delivering to the Controlling Collateral Agent
and the Interim Notes Collateral Agent (a) the Joinder Agreement, and (b) a
copy of the agreements evidencing such Working Capital Facility Indebtedness to
which such Person is a party.  Upon the
execution and delivery of any such copy of this Agreement by any such Person,
such Person, shall, upon delivery thereof to the Controlling Collateral Agent
and the Interim Notes Collateral Agent, thereafter become a party to this
Agreement.


 


8.8                                 Further
Assurances.


 


(a)                                  The Working Capital Facility Collateral Agent (on behalf of
itself and the Working Capital Facility Lenders), the Existing Notes Collateral
Agent (on behalf of itself and the Existing Notes Noteholders), the Interim
Notes Collateral Agent (on behalf of itself and the Interim Notes Noteholders),
the Pari Passu Collateral Agent (on behalf of itself and the Pari Passu
Lenders) and the Company, agree that each of them shall take such further
action and shall execute and deliver such additional documents and instruments
(in recordable form, if requested) as the Working Capital Facility Collateral
Agent, the Existing Notes Collateral Agent, the Interim Notes Collateral Agent,
or the Pari Passu Collateral Agent may reasonably request to effectuate the
terms of and the Lien priorities contemplated by this Agreement.


 


8.9                                 Governing Law.  This Agreement has been delivered and
accepted at and shall be deemed to have been made at New York, New York and
shall be governed by and construed and enforced in accordance with the laws of
the State of New York.


 


8.10                           Binding on
Successors and Assigns.  This
Agreement shall be binding upon the Working Capital Facility Collateral Agent,
the Working Capital Facility Lenders, the Existing Notes Trustee, the Interim
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes
Collateral Agent, the Noteholders, the Pari Passu Collateral Agent, the Pari
Passu Lenders, and their respective permitted successors and assigns.


 


8.11                           Specific
Performance.  Each of the
Working Capital Facility Collateral Agent and the Working Capital Facility
Lenders, in the first instance, the Interim Notes Collateral Agent and the
Interim Notes Noteholders, in the second instance, and the Pari Passu
Collateral Agent and the Pari Passu Lenders, in the third instance, may demand
specific performance of this Agreement. 
The Working Capital Facility Collateral Agent (on behalf of itself and
the Working Capital Facility Lenders), the Existing Notes Collateral Agent (on
behalf of itself and the Existing Notes Noteholders), the Interim Notes
Collateral Agent (on behalf of itself and the Interim Notes Noteholders), and
the Pari Passu Collateral Agent (on behalf of itself and the Pari Passu
Lenders) hereby irrevocably waive any defense based on the adequacy of a remedy
at law and any other defense which might be asserted to bar the remedy of specific
performance in any action which may be brought by the Interim Notes Collateral
Agent or the Interim Notes Noteholders, the Working Capital Facility Collateral
Agent or the Working Capital Facility Lenders, or the Pari Passu Collateral
Agent or the Pari Passu Lenders, as the case may be.


 


8.12                           Section Titles;
Time Periods; Capacities.  The
section titles contained in this Agreement are and shall be without substantive
meaning or content of any kind whatsoever and


 


49

















 


are
not a part of this Agreement.  In the
computation of time periods, unless otherwise specified, the word “from” means
“from and including” and each of the words “to” and “until” means “to but
excluding” and the word “through” means “to and including”.  All references to the Company or any
Guarantor shall include the Company or such Guarantor as an obligor under the
Working Capital Facility Documents, any of the Notes Documents or the Pari
Passu Indebtedness Documents, regardless of its capacity as a Company or
guarantor thereunder.


 


8.13                           Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which shall
together constitute one and the same document. 
Delivery of an executed counterpart of this Agreement by facsimile or
electronic transmission shall be equally as effective as delivery of an
original executed counterpart of this Agreement.  Any party delivering an executed counterpart of
this Agreement by facsimile or electronic transmission also shall deliver an
original executed counterpart of this Agreement, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Agreement.


 


8.14                           Authorization.  By its signature, each Person executing this
Agreement on behalf of a party hereto represents and warrants to the other
parties hereto that it is duly authorized to execute this Agreement and to bind
the Persons for which it acts as Authorized Representative to the terms and
conditions hereof.


 


8.15                           No Third Party
Beneficiaries.  This
Agreement and the rights and benefits hereof shall inure to the benefit of each
of the parties hereto and its respective successors and assigns and shall inure
to the benefit of each of the Working Capital Facility Lenders, the Noteholders
and the Pari Passu Lenders.  Nothing in
this Agreement shall impair, as between the Obligors and the Working Capital
Facility Collateral Agent and the Working Capital Facility Lenders, or as between
the Obligors and the Trustee, the Notes Collateral Agent and the Noteholders,
or as between the Obligors and the Pari Passu Collateral Agent and the Pari
Passu Lenders, the obligations of the Obligors to pay principal, interest, fees
and other amounts as provided in the Working Capital Facility Documents, the
Notes Documents and the Pari Passu Indebtedness Documents, respectively.


 


8.16                           Subrogation.  With respect to the value of any payments or
distributions in cash or other assets that any of the Noteholders or the Notes
Collateral Agent, on the one hand, or any of the Pari Passu Lenders or the Pari
Passu Collateral Agent, on the other hand, pays over to the Working Capital
Facility Collateral Agent or the Working Capital Facility Lenders under the terms
of this Agreement (including, without limitation, any payments pursuant to Section 5.6(b)),
the Noteholders and the Notes Collateral Agent, on the one hand, and the Pari
Passu Lenders and the Pari Passu Collateral Agent, on the other hand, shall be
subrogated to the rights of the Working Capital Facility Collateral Agent and
the Working Capital Facility Lenders; provided, that the Notes
Collateral Agent (on behalf of itself and the Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) hereby agrees
not to assert or enforce all such rights of subrogation it may acquire as a
result of any payment hereunder until the Discharge of Working Capital Facility
Obligations.  With respect to the value
of any payments or distributions in cash or other assets that any of the
Existing Notes Noteholders or the Existing Notes Collateral Agent, on the one
hand, or any of the Pari Passu Lenders or the Pari Passu Collateral Agent, on
the other hand, pays over to the Interim 
Notes Collateral Agent or the


 


50

















 


Interim
Notes Noteholders under the terms of this Agreement (including, without
limitation, any payments pursuant to Section 5.6(b)), the Existing
Notes Noteholders and the Existing Notes Collateral Agent, on the one hand, and
the Pari Passu Lenders and the Pari Passu Collateral Agent, on the other hand,
shall be subrogated to the rights of the Interim  Notes Collateral Agent and the Interim Notes
Noteholders; provided, that the Existing Notes Collateral Agent
(on behalf of itself and the Existing Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) hereby agrees
not to assert or enforce all such rights of subrogation it may acquire as a
result of any payment hereunder until the Discharge of Interim Notes
Obligations.  The Company acknowledges
and agrees that the value of any payments or distributions in cash, property or
other assets received by the Notes Collateral Agent, the Noteholders, the Pari
Passu Collateral Agent or the Pari Passu Lenders that are paid over to the
Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders or the Interim Notes Collateral Agent or the Interim Notes Noteholders
pursuant to this Agreement shall not reduce any of the relevant Notes
Indebtedness or the Pari Passu Indebtedness, as applicable.


 


8.17                           Certain
Regulatory Requirements. 
Notwithstanding any provision to the contrary in this Agreement, no
party to this Agreement will take any action hereunder in contravention of Section 6.15
of the Interim Notes Collateral Agreement.


 


[The remainder of this page has been intentionally left blank.]


 


51

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.


 


 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Existing Notes Trustee and Existing
  Notes Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Interim Notes Trustee and Interim Notes
  Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


52

















 


OBLIGOR
ACKNOWLEDGMENT


 


Each
of the undersigned hereby acknowledges and agrees to the foregoing terms and provisions.  By its signature below, the undersigned
agrees that it will, together with its successors and assigns, be bound by the
provisions of the within and foregoing Intercreditor Agreement.


 


Each
of the undersigned agrees that the Controlling Collateral Agent possessing or
controlling Shared Collateral does so as bailee and agent for perfection (such
bailment and agency for perfection being intended, among other things, to
satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of
the UCC) for the other Secured Parties, to the extent each has a Lien on such
Shared Collateral, and is hereby authorized to and may turn over such Shared
Collateral to the Interim Notes Collateral Agent or, after the Discharge of
Interim Note Obligations, the Pari Passu Collateral Agent, in accordance with
the foregoing Intercreditor Agreement, after the Discharge of Working Capital
Facility Obligations.


 


Each
of the undersigned acknowledges and agrees that: (i) although it may sign
this Obligor Acknowledgment to the Intercreditor Agreement it is not a party
thereto and does not and will not receive any right, benefit, priority or
interest under or because of the existence of the foregoing Intercreditor
Agreement and (ii) it will execute and deliver such additional documents
and take such additional action as may be necessary or desirable in the
reasonable opinion of the Working Capital Facility Collateral Agent, the Notes
Collateral Agent or the Pari Passu Collateral Agent to effectuate the
provisions and purposes of the foregoing Intercreditor Agreement.


 


	
   

  	
  FIBERTOWER CORPORATION

  
	
   

  	
  FIBERTOWER NETWORK SERVICES CORP.

  
	
   

  	
  ART LEASING, INC.

  
	
   

  	
  ART LICENSING CORP.

  
	
   

  	
  TELIGENT SERVICES ACQUISITION, INC.

  
	
   

  	
  FIBERTOWER SOLUTIONS CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [

  	
  ]

  
	
   

  	
  [

  	
  ]

  
	
   

  	
  Attention: [

  	
  ]

  
	
   

  	
  Telecopy No.: [

  	
  ]

  
	
   

  	
  email address: [

  	
  ]

  
					



 


53

















 


Exhibit A


 


[FORM OF JOINDER AGREEMENT]


 


JOINDER
AGREEMENT, dated as of
[                            
      ,           ],
to the AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of
[                ]
[    ], 2009 (as amended, restated or otherwise modified
from time to time, the “Intercreditor Agreement”), among  (a) WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, in its capacity as trustee
pursuant to the Existing Notes Indenture (as hereinafter defined) for the
Existing Notes Noteholders (as hereinafter defined) (in such capacity, together
with its successors and assigns in such capacity, the “Existing Notes
Trustee”); (b) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national
banking association, in its capacity as collateral agent pursuant to the
Existing Notes Collateral Agreements (as hereinafter defined) for the benefit
of the Existing Notes Trustee and the Existing Notes Noteholders (in such
capacity, together with its successors and assigns in such capacity, the “Existing
Notes Collateral Agent”); (c) WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, in its capacity as trustee pursuant to the
Interim Notes Indenture (as hereinafter defined) for the Interim Notes
Noteholders (as hereinafter defined) (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Trustee”); (d) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Interim Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes
Trustee and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Collateral Agent”);
(e) each additional AUTHORIZED REPRESENTATIVE from time to time  party hereto for the Additional Secured
Parties of the Series of Secured Debt with respect to which it is acting
in such capacity; and (f) FIBERTOWER CORPORATION, a Delaware corporation,
FIBERTOWER NETWORK SERVICES CORP., a Delaware corporation, ART LEASING, INC., a
Delaware corporation, TELIGENT SERVICES ACQUISITION, INC., a Delaware
corporation, ART LICENSING CORP., a Delaware corporation, and FIBERTOWER
SOLUTIONS CORPORATION, a Delaware corporation.


 


A.  Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Intercreditor Agreement.


 


B.  As a condition to the ability of the Company
to incur Working Capital Facility Indebtedness or Pari Passu Indebtedness and
to secure such indebtedness with a Lien on the Shared Collateral, in each case
under and pursuant to the Intercreditor Agreement, the Working Capital Facility
Collateral Agent and the Pari Passu Collateral Agent, as the case may be, is
required to become an Authorized Representative under, and is required to
become subject to and bound by, the Intercreditor Agreement.  Section 8.7 of the Intercreditor
Agreement provides that such Persons may become an Authorized Representative
under, and become subject to and bound by, the Intercreditor Agreement,
pursuant to the execution and delivery by such Person of a joinder agreement in
the form of this Joinder Agreement.  The
undersigned is executing this Joinder Agreement in accordance with the
requirements of the applicable Secured Debt Documents.


 


SECTION 1.  Accordingly, the undersigned (the “Additional
Authorized Representative”) by its signature below becomes an Authorized
Representative under, and the


 


1

















 


related
Additional Secured Parties become subject to and bound by, the Intercreditor
Agreement with the same force and effect as if the Additional Authorized
Representative had originally been named therein as an Authorized
Representative, and the Additional Authorized Representative, on behalf of
itself and such Additional Secured Parties, hereby agrees to all the terms and
provisions of the Intercreditor Agreement applicable to it as an Authorized
Representative in respect of such Obligations and the Additional Secured
Parties that it represents as Secured Parties. 
The Intercreditor Agreement is hereby incorporated herein by reference.


 


SECTION 2.  [The undersigned Additional Authorized
Representative hereby acknowledges that (i) the Notes Collateral Agent,
acting for and on behalf of the Noteholders, has been granted Liens upon the
Noteholder Collateral pursuant to the Notes Documents to secure the Notes
Obligations and (ii) to the extent any Pari Passu Indebtedness is
outstanding, the Pari Passu Collateral Agent, acting for and on behalf of the
Pari Passu Lenders, has been granted Liens upon the Pari Passu Collateral pursuant
to the Pari Passu Indebtedness Documents to secure the Pari Passu Obligations
(subject to the principal amount thereof not exceeding the Pari Passu
Indebtedness Cap)(1)] [The undersigned Additional Authorized Representative
hereby acknowledges that (i) to the extent any Working Capital Facility
Indebtedness is outstanding, the Working Capital Facility Collateral Agent,
acting for and on behalf of Working Capital Facility Lenders, has been granted
Liens upon the Working Capital Facility Collateral pursuant to the Working
Capital Facility Documents to secure the Working Capital Facility Obligations
(subject to the principal amount thereof not exceeding the Working Capital
Facility Debt Cap) and (ii) the Notes Collateral Agent, acting for and on
behalf of the Noteholders, has been granted Liens upon the Noteholder
Collateral pursuant to the Notes Documents to secure the Notes Obligations.(2)]


 


SECTION 3.  The undersigned Additional Authorized
Representative represents and warrants to the Controlling Agent and the other
Secured Parties that (i) it has full power and authority to enter into
this Joinder Agreement, in its capacity as [agent] [trustee], (ii) this
Joinder Agreement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with the terms of such Agreement and (iii) the applicable
Secured Debt Documents provide that, upon the Additional Authorized
Representative’s entry into this Agreement, the Additional Secured Parties that
it represents, will be subject to
and bound by the provisions of the Intercreditor Agreement as Secured Parties.


 


SECTION 4.  This Joinder Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract.  This Joinder Agreement shall become effective
when the Controlling Collateral Agent shall have received a counterpart of this
Joinder Agreement that bears the signature of the undersigned Additional
Authorized Representative.  Delivery of
an executed signature page to this Joinder Agreement by facsimile
transmission shall be effective as delivery of a manually signed counterpart of
this Joinder Agreement.


 


SECTION 5.  Except as expressly supplemented hereby, the
Intercreditor Agreement shall remain in full force and effect.


 






(1) Include
for Joinder Agreement executed by Working Capital Facility Collateral Agent.


 


(2) Include
for Joinder Agreement executed by Pari Passu Collateral Agent.


 


2

















 


SECTION 6.  THIS JOINDER AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


[Signature on following page]


 


3

















 


IN
WITNESS WHEREOF, the undersigned Additional Authorized Representative and the
Controlling Agent have duly executed this Joinder Agreement as of the day and
year first above written.


 


	
   

  	
  [NAME OF ADDITIONAL AUTHORIZED REPRESENTATIVE], as [                 ] for the holders of [                     ],

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention of:

  
	
   

  	
  Telecopy:

  
					



 


 


	
  ACKNOWLEDGED
  AND AGREED:

  	
   

  
	
   

  	
   

  
	
  [NAME
  OF CONTROLLING COLLATERAL AGENT],

  	
   

  
	
  as
  Controlling Collateral Agent,

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:    Authorized Signatory

  	
   

  
	
   

  	
   

  
	
  Address
  for notices:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention
  of:

  	
   

  
	
  Telecopy:

  	
   

  



 


4
















 


EXHIBIT B


 


AMENDED AND RESTATED
INTERCREDITOR AGREEMENT


 


This AMENDED AND RESTATED INTERCREDITOR
AGREEMENT, dated as of [            ]
[     ], 20[   ], is entered into,
pursuant to and in accordance with the terms of the Omnibus Intercreditor
Agreement, by and among (a) [WELLS FARGO BANK, NATIONAL ASSOCIATION]
[substitute any successor, as applicable], a national banking association, in
its capacity as trustee pursuant to the Existing Notes Indenture (as
hereinafter defined) for the Existing Notes Noteholders (as hereinafter
defined) (in such capacity, together with its successors and assigns in such
capacity, the “Existing Notes Trustee”); (b) [WELLS FARGO BANK,
NATIONAL ASSOCIATION] [substitute any successor, as applicable], a national
banking association, in its capacity as collateral agent pursuant to the
Existing Notes Collateral Agreements (as hereinafter defined) for the benefit
of the Existing Notes Trustee and the Existing Notes Noteholders (in such
capacity, together with its successors and assigns in such capacity, the “Existing
Notes Collateral Agent”); (c) [WELLS FARGO BANK, NATIONAL ASSOCIATION]
[substitute any successor, as applicable], a national banking association, in
its capacity as trustee pursuant to the New Notes Indenture (as hereinafter
defined) for the New Notes Noteholders (as hereinafter defined) (in such
capacity, together with its successors and assigns in such capacity, the “New
Notes Trustee”); (d) [WELLS FARGO BANK, NATIONAL ASSOCIATION]
[substitute any successor, as applicable], a national banking association, in
its capacity as collateral agent pursuant to the New Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes
Trustee and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “New Notes Collateral Agent”);
(e) at such time, if any, as the Revolving Credit Agreement is entered
into and becomes effective and designated as such for purposes hereof, the
Revolving Agent; and (f) FIBERTOWER CORPORATION, a Delaware corporation
(the “Borrower” or the “Company”), FIBERTOWER NETWORK SERVICES
CORP., a Delaware corporation, ART LEASING, INC., a Delaware corporation,
TELIGENT SERVICES ACQUISITION, INC., a Delaware corporation, ART LICENSING CORP.,
a Delaware corporation, and FIBERTOWER SOLUTIONS CORPORATION, a Delaware
corporation.


 


W I T N E S S E T H:


 


WHEREAS, the Company (as hereinafter
defined), the other Obligors (as hereinafter defined) and the Existing Notes
Trustee and Existing Notes Collateral Agent have entered into the Indenture,
dated as of November 9, 2006, (as such Indenture may be amended, modified,
supplemented, extended, renewed, restated or refinanced, the “Existing Notes
Indenture”) governing the 9.00% Convertible Senior Secured Notes due 2012
(such notes, the “Existing Notes”) issued by the Company to the Existing
Notes Noteholders;


 


WHEREAS, prior to the date hereof the
Company, the other Obligors and Wells Fargo Bank, National Association, as
Interim Notes Agent, have entered into (i) an Amended and Restated
Intercreditor Agreement (the “Interim Notes Intercreditor Agreement”)
pursuant to the 


 

















 


terms of the Omnibus
Intercreditor Agreement (as defined below) and (ii) the Interim Notes
Indenture governing the Interim Notes issued by the Company to the Interim
Notes Noteholders (as defined in the Interim Notes Intercreditor Agreement);


 


WHEREAS, the Interim Notes have, concurrently
with the effectiveness of this Agreement, been mandatorily redeemed in
accordance with the provisions thereof, and the Interim Notes Obligations have
been satisfied and the New Notes have been issued as partial consideration for
such Mandatory Redemption and, together with other consideration, in exchange
for the Interim Notes, and pursuant to the provisions of the Omnibus
Intercreditor Agreement, dated as of December        ,
2009, among the Company, the other Obligors, the Interim Notes Agent, the
Existing Notes Agent and the New Notes Agent and the other creditors, if any,
party thereto (as amended, modified, supplemented, extended, renewed or
restated in accordance with the term thereof, the “Omnibus Intercreditor
Agreement”), this Agreement has become effective upon effectiveness of the
New Notes Indenture and issuance of the New Notes pursuant thereto in
connection with such Mandatory Redemption;


 


WHEREAS, the Company and the other Obligors
[has entered][may enter] into a Revolving Credit Agreement which the Company
desires to secure, all in a manner consistent with the provisions and
priorities set forth herein, that provides for extensions of credit not to
exceed the Maximum Revolving Credit Principal Amount.


 


WHEREAS, it is a condition precedent to the
issuance by the Company of the New Notes upon consummation of the Mandatory
Redemption that the Existing Notes Agent, on behalf of itself and the Existing
Notes Creditors, the New Notes Agent, on behalf of itself and the Term Loan
Creditors, the Company and the other Obligors enter into this Agreement;


 


WHEREAS, the Existing Notes Agent, on behalf
of itself and the Existing Notes Creditors, the Term Loan Agent, on behalf of
itself and the Term Loan Creditors, and, at such time as the Revolving Credit
Agreement may become effective and the Revolving Agent becomes a party hereto,
the Revolving Agent, on behalf of itself and the Revolving Creditors, wish to
set forth their agreement as to certain of their respective rights and
obligations with respect to the assets and properties of the Company and the
other Obligors and their understanding relative to their respective positions
in certain assets and properties of the Company and the other Obligors.


 


NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Existing Notes Agent, on behalf of
itself and the Existing Notes Creditors, the Term Loan Agent, on behalf of
itself and the Term Loan Creditors, and, at such time as the Revolving Credit
Agreement may become effective and the Revolving Agent becomes a party hereto,
the Revolving Agent, on behalf of itself and the Revolving Creditors, and the
Obligors party hereto, hereby agree as follows:


 


Section 1.                                            Definitions.


 


1.1           General Terms.  As used in
this Agreement, the following terms (including those in the preamble and
recitals hereto) shall have the respective meanings indicated 


 


2

















 


below, such meanings to be applicable equally
to both the singular and the plural forms of the terms defined:


 


“Access Period”
means, with respect to each parcel or item of Term Loan Priority Collateral,
the period, that begins on the fifth Business Day after which both of the
following have occurred: (a) the Revolving Agent has commenced an
Enforcement Action and (b) the Revolving Agent or any other Revolving Creditor
initially has actual access, whether or not utilized, to such parcel or item of
Term Loan Priority Collateral for the purpose of taking physical possession of,
removing or otherwise controlling, or using in any manner, Revolving Credit
Priority Collateral located at such parcel or item of Term Loan Priority
Collateral (the “Initial Access Date”), and ends on
the earliest of (i) the day that is 180 days after the Initial Access Date
plus such number of days, if any, after the Initial Access Date that it is
stayed or otherwise prohibited by law or court order from exercising remedies
with respect to the associated Revolving Credit Priority Collateral, (ii) the
date on which all or substantially all of the Revolving Credit Priority
Collateral associated with such parcel or item of Term Loan Priority Collateral
is sold, removed, collected or liquidated, (iii) the Revolving Credit
Termination Date and (iv) the date on which the Event of Default which
resulted in commencement of the applicable Enforcement Action against such
Revolving Credit Priority Collateral has been cured or waived in writing.


 


“Account”  shall have
the meaning set forth in the Uniform Commercial Code as in effect in the State
of New York from time to time, including all rights to payment for goods sold
or leased, or for services rendered.


 


“Affiliate”
means with respect to any Person, another Person that directly or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified. 
As used herein, “Control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have correlative meanings.


 


“Agreement”
means this Amended and Restated Intercreditor Agreement..


 


“Bank Product Obligations”
means, with respect to any Obligor, any obligations of such Obligor owed to any
Revolving Creditor (or any of its Affiliates) in respect of any of the
following products, services or facilities extended to any Obligor by a
Revolving Lender or any of its Affiliates: (a) any services provided from
time to time by any Revolving Lender or any of its Affiliates to any Obligor in
connection with operating, collections, payroll, trust, or other depository or
disbursement accounts, including automated clearinghouse, e-payable, electronic
funds transfer, wire transfer, controlled disbursement, overdraft, depository,
information reporting, lockbox and stop payment services; (b) products
under an agreement relating to any swap, cap, floor, collar, option, forward,
cross right or obligation, or combination thereof or similar transaction, with
respect to interest rate, foreign exchange, currency, or commodity risk; (c) commercial
credit card and merchant card services; and (d) banking products or
services as may be requested by any Obligor, other than Letters of Credit.


 


3

















 


“Bankruptcy Code”
means the provisions of Title 11 of the United States Code, 11 U.S.C.
§§101 et seq.


 


“Bankruptcy Law”
means the Bankruptcy Code and any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law.


 


“Borrower” has
the meaning set forth in the preamble hereto.


 


“Business Day”
means any day of the year that is not a Saturday, a Sunday or a day on which
banks are required or authorized to close in New York City or Chicago,
Illinois.


 


“Cash Proceeds”  shall mean all proceeds of any Collateral
consisting of cash, checks and other near-cash items.


 


“Chattel Paper”  shall mean all “chattel paper” as defined
in Article 9 of the Uniform Commercial Code as in effect in the State of
New York from time to time, including, without limitation, “electronic chattel paper”
or “tangible chattel paper”, as each term is defined in the Uniform Commercial
Code as in effect in the State of New York from time to time.


 


“Collateral”
means all assets and properties of any kind whatsoever, real or personal,
tangible or intangible and wherever located, of any Obligor, whether now owned
or hereafter acquired, upon which a Lien (including, without limitation, any
Liens granted in any Insolvency Proceeding) is now or hereafter granted or
purported to be granted in favor of a Secured Creditor, as security for all or
any part of the Obligations, provided that as to the Existing Notes Creditors,
Collateral shall be limited to assets and properties in which the Existing
Notes Creditors have a Lien pursuant to the Existing Notes Documents as in
effect on the date hereof, and only the Proceeds thereof, and shall not include
any other assets and properties, or Proceeds thereof, on which the Revolving
Creditors or Term Loan Creditors may from time to time have a Lien to secure
their Obligations, and nothing in this Agreement shall be read to provide that
the Existing Notes Creditors have any right to acquire, or that any Obligor has
any obligation to provide to any Existing Notes Creditor, any Lien on any
assets and properties on which they do not have a Lien pursuant to the Existing
Notes Documents as in effect on the date hereof, or Proceeds thereof, or to
permit the granting of a Lien in favor of any Existing Notes Creditor on any
assets or properties where prohibited by Section 2.4(d) hereof.


 


“Company” has
the meaning set forth in the preamble hereto.


 


“Debt Action”
means (a) the filing of a lawsuit by any Secured Creditor solely to
collect the Obligations owed to such Secured Creditor and not to exercise
secured creditor remedies in respect of the Collateral, (b) the demand by
any Secured Creditor for accelerated payment of any and all of the Obligations
owed to such Secured Creditor, (c) the filing  of
any notice of claim and the voting of any such claim in any Insolvency
Proceeding involving an Obligor in a manner not prohibited by, and not
inconsistent with, the terms of Section 6, (d) the filing of
any motion in any Insolvency Proceeding permitted by, and not inconsistent
with, the terms of Section 6 or (e) the filing of any
defensive pleading in any Insolvency Proceeding not inconsistent with the terms
of this Agreement.


 


“DIP Financing”
has the meaning set forth in Section 6.1.


 


4

















 


“Disposition”
means any sale, lease, license, exchange, transfer or other disposition, and “Dispose” and “Disposed of”
shall have correlative meanings.


 


“Distribution”
means, with respect to any indebtedness or obligation of a Person, (a) any
payment or distribution by or on behalf of such Person (or any guarantor or
surety thereon) of cash, securities or other property, by setoff or otherwise,
on account of such indebtedness or obligation or (b) any redemption,
purchase or other acquisition of such indebtedness or obligation by such Person
(or any guarantor or surety thereon).


 


“Enforcement Action”
means (a) the exercise of any enforcement remedies under any Obligation
Document, the UCC or other applicable law in respect of the Collateral by the
applicable Secured Creditor, (b) any action by any Secured Creditor to
foreclose on the Lien of such Person in any Collateral, (c) any action by
any Secured Creditor to take possession of, or sell or otherwise realize upon,
or to exercise any other enforcement rights or remedies with respect to, any
Collateral, including any Disposition after the occurrence of an Event of
Default of any Collateral by an Obligor with the consent of, or at the
direction of, a Secured Creditor, including, without limitation, by
notification of account debtors, (d) the taking of any other actions by a
Secured Creditor against any Collateral, including the taking of control or
possession of, or the exercise of any right of setoff with respect to, any
Collateral and including the exercise of any voting rights relating to any
capital stock composing a portion of the Collateral and/or (e) the commencement
by any Secured Creditor of any legal proceedings or actions against or with
respect to any Obligor or any of such Obligor’s property or assets or any
Collateral to facilitate any of the actions described in clauses (a), (b), (c),
(d) and (e) above, including the commencement of any Insolvency
Proceeding; provided that this definition shall not include any Debt
Action.


 


“Event of Default”
means each “Event of Default” or similar term, as such term is defined in any
Term Loan Credit Document or any Revolving Credit Document.


 


“Excess Revolving Credit
Obligations”  means, as of
any date of determination, the sum of (a) the portion of the principal
amount of the loans outstanding under the Revolving Credit Documents and the
undrawn amount of all outstanding Letters of Credit (disregarding for purposes
of this calculation Letters of Credit to the extent cash collateralized in
accordance with the Revolving Credit Agreement) and, without duplication of
reimbursement obligations having been refinanced with proceeds of loans, the
unreimbursed amount of all Letters of Credit as of such date that is in excess
of the Maximum Revolving Credit Principal Amount as of such date plus (b) without
duplication, the portion of accrued and unpaid interest and fees on account of
such portion of the loans and Letters of Credit described in clause (a) of
this definition; provided, however, that any interest accruing
on, or fees or reimbursement obligations in respect of, out of pocket fees
(including legal fees and disbursements) or other expenses of the Revolving
Agent or other Revolving Creditors that are reimbursable by the Obligors under
the terms of the Revolving Credit Documents and that accrue, or are incurred,
after the occurrence of an Insolvency Proceeding or after the date when
Revolving Agent or the Term Loan Agent, as applicable, commences Enforcement
Action with respect to any of the Collateral shall not constitute Excess
Revolving Credit Obligations, regardless of whether any such amounts are added
to the principal balance of the loans pursuant to the terms of the Revolving
Credit 


 


5

















 


Documents.  Any
DIP Financing by the Revolving Creditors within the limits of Section 6.1(a)(iii)(A)
shall not constitute Excess Revolving Credit Obligations.


 


“Excess Term Obligations”
means, as of any date of determination, the sum of (a) the portion of the
principal amount of the loans outstanding under the Term Loan Credit Documents
as of such date that is in excess of the Maximum Term Loan Principal Amount as
such date plus (b) without duplication, the portion of accrued and unpaid
interest on account of such portion of the loans described in clause (a) of
this definition; provided, however, that any interest accruing
on, or reimbursement obligations in respect of, out of pocket fees (including
legal fees and disbursements) or other expenses of the Term Loan Agent or other
Term Loan Creditors that are reimbursable by the Obligors under the terms of
the Term Loan Credit Documents and that accrue, or are incurred, after the
occurrence of an Insolvency Proceeding or after the date when Revolving Agent
or the Term Loan Agent, as applicable, commences Enforcement Action with
respect to any of the Collateral shall not constitute Excess Term Obligations,
regardless of whether any such amounts are added to the principal balance of
the loans pursuant to the terms of the Term Loan Credit Documents. Any DIP
Financing by the Term Loan Creditors within the limits of Section 6.1(b)(iii)(A) shall
not constitute Excess Term Obligations.


 


“Exigent Circumstances”
means (a) a fraud has been committed by any Obligor in connection with the
Revolving Credit Obligations or Term Loan Obligations, as applicable, including
any withholding of collections of Accounts or other Proceeds or any other
property in violation of the terms of the Revolving Credit Documents or Term
Loan Credit Documents, as applicable, or (b) an event or circumstance that in
the judgment of the Revolving Agent materially and imminently threatens the
value of, or ability of the Revolving Agent to realize upon, its Priority
Collateral, or, in the judgment of the Term Loan Agent materially and
imminently threatens the value of, or ability to realize upon, its Priority
Collateral.


 


“Existing
Notes” means the notes issued and outstanding from time to time
under the Existing Notes Indenture.


 


“Existing
Notes Agent” means, collectively, the Existing Notes Trustee and/or
Existing Notes Collateral Agent under the Existing Notes Indenture and the
other Existing Notes Documents.


 


“Existing Notes Creditors”
means , at any time, the Existing Notes Agent, the “Holders” (as defined in the
Existing Notes Indenture), any other administrative agent under the Existing
Notes Indenture and any other Existing Notes Documents, any collateral agent
under the Existing Notes Indenture and any other Existing Notes Documents, each
lender or other creditor under the Existing Notes Indenture and any other
Existing Notes Documents, each holder of any Hedging Obligations that at the
time of the incurrence of such Hedging Obligations is a lender or other
creditor under the Term Loan Credit Agreement or an Affiliate thereof and is a
secured party under any Existing Notes Document, the beneficiaries of each
indemnification obligation undertaken by any Obligor under any Existing Notes
Document, and each other holder of, or obligee in respect of, any Existing
Notes Obligations, in each case to the extent designated as a secured party under
any Existing Notes Document outstanding at such time.


 


6

















 


“Existing
Notes Documents” means the Existing Notes Indenture and the Existing
Notes, and the “Escrow Agreement”, the “Note Guarantees”, the “Collateral
Agreements” and the other “Notes Documents”, each as defined in the Existing
Notes Indenture as in effect on [           ]
[       ], 20[    ].


 


“Existing
Notes Indenture” means the Indenture, dated as of November 9,
2006, between the Company and the other Obligors, and Wells Fargo Bank,
National Association, as trustee and collateral agent, relating to the Company’s
9.00% Convertible Senior Secured Notes due 2012.


 


“Existing Notes Noteholders” means the holders from time to time of the Existing Notes issued
and outstanding from time to time under the Existing Notes Indenture.


 


“Existing
Notes Obligations” means the Existing Notes and all other “Note
Obligations” (as defined in the Existing Notes Indenture) owing or outstanding
from time to time under the Existing Notes Indenture and the other Existing
Notes Documents.


 


“Existing Notes Refinancing
Conditions” means that the following conditions must be met with
respect to any applicable amendment, restatement, supplement, modification,
substitution, Refinancing, renewal or replacement of the Existing Notes
Documents: (i) it has a final maturity no sooner than, and a weighted
average life (measured as of the date of such amendment, restatement,
supplement, modification, substitution, Refinancing, renewal or replacement) no
less than that applicable to the Existing Notes Obligations on the date hereof;
(ii) in the case of any secured Refinancing, substantially concurrently
with the entry into definitive documentation evidencing such indebtedness, the
lenders thereunder shall enter into an intercreditor agreement on terms no less
favorable to the Revolving Creditors and the Term Loan Creditors than this
Agreement or execute an Intercreditor Agreement Joinder, (iii) Liens on no
categories of Collateral not subject to the Liens securing the Existing Notes
Obligations on the date hereof are granted to secure it; and (iii) no
additional Person is obligated on such indebtedness that is not obligated on
the Existing Notes Obligations on the date hereof, and (iv) it shall
contain no representations, warranties, covenants or events of default not
contained in the Existing Notes Indenture on the date hereof after giving
effect to the amendment thereof deleting such provisions on or about the date hereof,
unless consented to by the Revolving Agent and the Term Loan Agent at the
direction of the majority holders of the Revolving Credit Obligations and the
Term Loan Obligations, respectively, but in no event shall any representations,
warranties, covenants or events of default contained in the Existing Notes
Documents (with such consent as aforesaid) be (x) more restrictive in any
respect on any Obligor than the least restrictive analogous provisions in the
Revolving Credit Documents and the Term Loan Credit Documents or (y) address
substantive restrictions or other matters not contained in both the Revolving
Credit Documents and the Term Loan Credit Documents.


 


“Existing Notes Secured
Claim” means any portion of the Existing Notes Obligations.


 


“General Intangibles”  (i) shall
mean all “general intangibles” as defined in Article 9 of the UCC, including “payment intangibles” also as
defined in Article 9 of the Uniform Commercial Code as in effect in the
State of New York from time to time and (ii) shall 


 


7

















 


include, without limitation, all interest rate or
currency protection or hedging arrangements, all tax refunds and all licenses,
permits, concessions and authorizations, (in each case, regardless of whether
characterized as general intangibles under the Uniform Commercial Code as in
effect in the State of New York from time to time).


 


“Hedging Obligations”
means, with respect to any Obligor, any obligations of such Obligor under an
agreement relating to any non-speculative, ordinary course of business swap,
cap, floor, collar, option, forward, cross right or obligation, or combination
thereof or similar transaction, with respect to interest rate, foreign
exchange, currency or commodity risk.


 


“Insolvency Proceeding”
means any of the following: (a) any case or proceeding with respect to any
Obligor under the Bankruptcy Code or any other federal or state bankruptcy,
insolvency, reorganization or other law affecting creditors’ rights or any
other or similar proceedings seeking any stay, reorganization, arrangement,
composition or readjustment of the obligations and indebtedness of such
Obligor, in each case, whether or not voluntary, (b) any proceeding
seeking the appointment of any trustee, receiver, liquidator, custodian or
other insolvency official with similar powers with respect to any Obligor or
any of its assets in each case, whether or not voluntary, (c) any
proceeding for liquidation, dissolution or other winding up of the business of
the Company or any other Obligor whether or not voluntary and whether or not
involving bankruptcy or insolvency, that, in the case of an Obligor other than
the Company, is not permitted under the Revolving Credit Documents and the Term
Loan Credit Documents or (d) any assignment for the benefit of creditors
or any marshalling of assets of any Obligor.


 


“Intercreditor
Agreement Joinder” means an agreement substantially in the form of Exhibit A.


 


“Interim
Notes” means the notes issued and outstanding under the Interim
Notes Indenture.


 


“Interim
Notes Agent” means the trustee and/or collateral agent under the
Interim Notes Indenture and the other Interim Notes Documents.


 


“Interim Notes Indenture” means the Indenture, dated as of December 7, 2009,
between the Company and the other Obligors, and Wells Fargo Bank, National
Association, as trustee and collateral agent, relating to the Company’s 9.00%
Mandatorily Redeemable Convertible Senior Secured Notes due 2012.


 


“Interim Notes Documents” means the Interim Notes Indenture and the Interim Notes, and
the “Escrow Agreement”, the “Note Guarantees”, the “Collateral Agreements” and
the other “Notes Documents”, each as defined in the Interim Notes Indenture.


 


“Interim Notes Obligations” means the Interim Notes and all other “Note Obligations” (as
defined in the Interim Notes Indenture) owing or outstanding from time to time
under the Interim Notes Indenture and the other Interim Notes Documents.


 


“Inventory”  shall mean:
(i) all “inventory” as defined in the Uniform Commercial Code as in effect
in the State of New York from time to time and (ii) all goods held for
sale or lease or to be furnished under contracts of service or so leased or
furnished, all raw 


 


8

















 


materials, work in process, finished goods, and
materials used or consumed in the manufacture, packing, shipping, advertising,
selling, leasing, furnishing or production of such inventory or otherwise used
or consumed in  any  Obligor’s
business; all goods in which any  Obligor has an interest in mass or a
joint or other interest or right of any kind; and all such goods that are
returned to or repossessed by any Obligor, and all accessions thereto and
products thereof (in each case, regardless of whether characterized as
inventory under the Uniform Commercial Code as in effect in the State of New
York from time to time).  Inventory shall include each item of property
that at any time is or at any time was part of the rental fleet, whether
classified as “inventory,” “rental equipment” or “fixed asset” on the financial
statements of the Company.


 


“Junior Adequate Protection
Liens” has the meaning set forth in Section 6.2.


 


“Junior Lien Default Notice”
means a notice by the Term Loan Agent to the Revolving Agent or by the
Revolving Agent to the Term Loan Agent, indicating that an Event of Default
under the Term Loan Credit Documents or Revolving Credit Documents,
respectively, has occurred and that the Term Loan Agent or Revolving Agent, as
the case may be, intends to take Enforcement Action against Collateral (other than
Collateral that as to such Secured Creditor, is Priority Collateral).


 


“Junior Documents”
means (i) as to the Revolving Credit Priority Collateral, the Term Loan
Credit Documents, (ii) as to the Term Loan Priority Collateral, the Revolving
Credit Documents, and (iii) as to all Collateral, at all times prior to
Payment in Full of the Term Loan Obligations and the Revolving Credit
Obligations, the Existing Notes Documents.


 


“Junior Obligations”
means (i) as to the Term Loan Priority Collateral, the Revolving Credit
Obligations, (ii) as to the Revolving Credit Priority Collateral, the Term
Loan Obligations, and (iii) as to all Collateral, at all times prior to
Payment in Full of the Term Loan Obligations and the Revolving Credit
Obligations, the Existing Notes Obligations. Junior Obligations also means as
to Term Loan Priority Collateral, any Excess Term Obligations, and as to any
Revolving Credit Priority Collateral, any Excess Revolving Credit Obligations.


 


“Junior Secured Creditor”
means, as to the Term Loan Priority Collateral, the Revolving Agent acting on
behalf of itself and the Revolving Creditors, and as to the Revolving Credit
Priority Collateral, the Term Loan Agent acting on behalf of itself and the
Term Loan Creditors, and as to all Collateral, at all times prior to Payment in
Full of the Term Loan Obligations and the Revolving Credit Obligations, the
Existing Notes Creditors.  Junior Secured
Creditor also means the Revolving Agent acting on behalf of itself and the
Revolving Creditors as to its Lien on Revolving Credit Priority Collateral to
the extent securing Excess Revolving Credit Obligations and the Term Loan Agent
acting on behalf of itself and the Term Loan Creditors as to its Lien on Term
Loan Priority Collateral to the extent securing Excess Term Obligations.


 


“L/C Issuer”
means any bank or financial institution that issues, arranges or provides
credit support for a Letter of Credit issued or deemed issued pursuant to the
Revolving Credit Agreement.


 


9

















 


“Letters of Credit”
means any standby or documentary letter of credit issued or arranged by L/C
Issuer for the account of Borrower, or any indemnity, guarantee, exposure
transmittal memorandum or similar form of credit support issued or arranged by
Revolving Agent or L/C Issuer for the benefit of Borrower.


 


“Lien” means any
mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit
arrangement, encumbrance, easement, lien (statutory or otherwise), security
interest or other security arrangement and any other preference, priority or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale contract or other title retention arrangement, the interest of
a lessor under a capital lease and any synthetic or other financing lease
having substantially the same economic effect as any of the foregoing.


 


“Mandatory Redemption”
means “Mandatory Redemption”, as defined in the New Notes Indenture.


 


“Mandatory Redemption Date”
means “Mandatory Redemption Date”, as defined in the New Notes Indenture.


 


“Maximum Revolving Credit
Principal Amount” means, as of any date of determination, (a) $20,000,000,
minus (b) permanent reductions of
revolving loan commitments under the Revolving Credit Documents after the date
hereof that are accompanied by principal payments outstanding under such
commitments (other than those made in connection with a Refinancing permitted
under Section 4.2), plus  (c) accrued
and unpaid interest and fees (excluding any portion of interest and fees referred
to in clause (b) of the definition of Excess Revolving Credit Obligations), and
costs, expenses, indemnities, and other amounts (other than principal, unless
constituting amounts of interest and fees that are added to principal) payable
pursuant to the terms of the Revolving Credit Documents, whether or not, in the
case of interest or fees, the same are added to the principal amount of the
Revolving Credit Obligations and including the same as would accrue and become
due but for the commencement of an Insolvency Proceeding, whether or not
allowed in any such Insolvency Proceeding, plus  (d) advances
(whether or not added to the principal of the revolving loan) made by the
Revolving Lenders or the Revolving Agent in order to protect, preserve or
enhance the value of any Revolving Credit Priority Collateral or to pay amounts
that the Borrower is obligated to pay under the Revolving Credit Documents to
protect the Collateral, plus (e) Bank
Product Obligations, plus (f) Hedging
Obligations to a Revolving Creditor.


 


“Maximum Term Loan
Principal Amount” means, as of any date of determination, (a) $                   ,
minus (b) the sum of all principal
payments of the term loans constituting Term Loan Obligations (including
voluntary and mandatory prepayments) after the date hereof, but excluding
prepayments resulting from any Refinancing permitted under Section 4.1,
plus  (c) accrued and unpaid
interest and fees (excluding any portion of interest and fees referred to in
clause (b) of the definition of Excess Term Obligations) and costs,
expenses, indemnities, and other amounts (other than principal, unless
constituting amounts of interest and fees that are added to principal) payable
pursuant to the terms of the Term Loan Credit Documents, whether or not, in the
case of interest or fees, the same are added to the principal amount of the
Term Loan Obligations and including the same as would accrue and become due but
for the commencement of an Insolvency Proceeding, whether or not allowed in any
such 


 


10

















 


Insolvency Proceeding, plus
(d) advances (whether or not added to the principal of the term loans) made
by the Term Lenders or the Term Loan Agent in order to protect, preserve or
enhance the value of any Term Loan Priority Collateral or to pay amounts that
any Obligor is obligated to pay under the Term Credit Documents to protect the
Collateral, plus (e) all Term Loan
Hedging Obligations not included in clause (a).(1)


 


“New License Subsidiary” has the meaning specified therefor in the New Notes
Indenture.


 


“New Notes”
means the notes issued and outstanding from time to time under the New Notes
Indenture, including any notes issued in lieu of interest and in respect of
capitalized, or “pay in kind”, interest accruing on any such notes outstanding
from time to time in accordance with the New Notes Indenture.


 


“New Notes Agent” means the New Notes Trustee and/or New Notes Collateral
Agent under the New Notes Indenture and the other New Notes Documents.


 


“New Notes Indenture” means the Indenture, dated as of [             ],
20[    ], between the Company and the other Obligors, and
Wells Fargo Bank, National Association, as trustee and collateral agent,
relating to the Company’s 9.00% Senior Secured Notes due 20[   ],
to be substantially in the form of Exhibit [     ]
hereto.


 


“New Notes Documents” means the New Notes Indenture and the New Notes, and the “Escrow
Agreement”, the “Note Guarantees”, the “Collateral Agreements” and the other “Notes
Documents”, each as defined in the New Notes Indenture.


 


“New Notes Obligations” means the New Notes and all other “Note Obligations” (as
defined in the New Notes Indenture) owing or outstanding from time to time
under the New Notes Indenture and the other New Notes Documents.


 


“New Notes Noteholders” means the holders from time to time of the New Notes issued
and outstanding from time to time under the New Notes Indenture.


 


“Non-Priority Collateral”
means (i) as to the Term Loan Creditors, the Revolving Credit Priority
Collateral, (ii) as to the Revolving Creditors, the Term Loan Priority
Collateral, and (iii) as to the Existing Notes Creditors, any and all
Collateral.  Non-Priority Collateral
shall also mean, as to the Term Loan Creditors, the Term Loan Priority
Collateral to the extent securing Excess Term Obligations, and as to the
Revolving Creditors, the Revolving Credit Priority Collateral to the extent
securing the Excess Revolving Credit Obligations.


 


“Obligation Documents”
means the Revolving Credit Documents and the Term Loan Credit Documents and the
Existing Notes Documents, or any of them.


 


“Obligations”
means the Term Loan Obligations and the Revolving Credit Obligations and the
Existing Notes Obligations, or any of them.


 


 


11
















 


“Obligor” means
the Company and each other Person liable on or in respect of any Obligations,
or that has granted a Lien on any property or assets as Collateral, together
with such Person’s successors and assigns, including a receiver, trustee or
debtor-in-possession on behalf of such Person.


 


“Paid in Full”
or “Payment in Full” means, with respect to
any Obligations, that: (a) all of such Obligations (other than contingent
indemnification obligations for which no underlying claim has been asserted)
have been paid, performed or discharged in full (with all such Obligations
consisting of monetary or payment obligations having been paid in full in
cash), (b) no Person has any further right to obtain any loans, letters of
credit, bankers’ acceptances, or other extensions of credit under the Revolving
Credit Agreement or the other Revolving Credit Documents in the case of
Revolving Credit Obligations or the Term Loan Credit Agreement or the other
Term Loan Credit Documents in the case of the Term Loan Obligations and all
commitments to extend credit under such applicable agreements shall have
terminated, (c) any and all letters of credit, bankers’ acceptances or
similar instruments issued under such documents have been cancelled and
returned (or backed by stand-by guarantees or letters of credit in form and
substance reasonably acceptable to (and from financial institutions
satisfactory to) Revolving Agent or Term Loan Agent, as applicable, or cash
collateralized at the amounts required to obtain a release of liens under the
terms of the applicable Revolving Credit Documents) in accordance with the
terms of such documents, and (d) any costs, expenses and indemnification
obligations not yet due and payable but with respect to which a claim has been
threatened or asserted in writing under any Obligation Document, are backed by
a letter of credit or cash collateral in an amount and on terms reasonably
satisfactory to the Term Loan Agent or Revolving Agent, as applicable.


 


“Payment Rights”
means any right of any Obligor to the payment of money arising from the
Disposition of any Inventory or rendition of services, whether such right to
payment constitutes an Account or Payment Intangible or is evidenced by or
consists of a Document, Instrument, Chattel Paper, Letter-of-Credit Right or
Supporting Obligation.


 


“Permitted Collateral Sale”
means (i) any Disposition of Priority Collateral (other than after the
occurrence and during the continuance of an Insolvency Proceeding by or against
the relevant Obligor and other than in connection with an Enforcement Action or
a Disposition described in clause (ii) below) so long as such Disposition
is permitted under the Priority Documents as in effect on the date hereof and
by the Junior Documents as in effect on the date hereof (other than, in the
case of the New Notes Indenture, pursuant to Section 6.01 thereof); and (ii) any
Disposition of Priority Collateral (other than in an Insolvency Proceeding by
or against the relevant Obligor) permitted under the applicable Priority
Documents as in effect on the date hereof, but not permitted under the
applicable Junior Document, in connection with an Enforcement Action against
such Priority Collateral by the relevant Priority Secured Creditor or a
Disposition by the relevant Obligor during the continuation of an Event of
Default under the Priority Documents with the written permission of the
Priority Secured Creditor; provided, that, in each case above, the Liens
of the Junior Secured Creditors in such Priority Collateral shall continue as
to the Proceeds thereof and such Proceeds received are applied as provided in Section 3.8
hereof.


 


12

















 


“Person” means
an individual, partnership, corporation (including a business trust and a
public benefit corporation), joint stock company, estate, association, firm,
enterprise, trust, limited liability company, unincorporated association, joint
venture, governmental authority or any other entity or regulatory body.


 


“Primary Junior Secured
Creditor” means a Junior Secured Creditor of the type described in
the first sentence of the definition of “Junior Secured Creditor”.


 


“Primary Priority Secured
Creditor” means a Priority Secured Creditor of the type described in
the first sentence of the definition of “Priority Secured Creditor”.


 


“Priority Claim Avoidance”
has the meaning set forth in Section 6.4.


 


“Priority Collateral”
means, as to the Term Loan Creditors, the Term Loan Priority Collateral, and,
as to the Revolving Creditors, the Revolving Credit Priority Collateral, and,
as to the Existing Notes Creditors, none of the Collateral.  Priority Collateral also means, as to any
Revolving Creditors, the Term Loan Priority Collateral to the extent securing
Excess Term Obligations and as to any Term Loan Creditors, the Revolving Credit
Priority Collateral to the extent securing Excess Revolving Credit Obligations;
provided that the right of the Term Loan Creditors to take any
Enforcement Action with respect to their Non-Priority Collateral, and the right
of the Revolving Creditors to take any Enforcement Action with respect to their
Non-Priority Collateral, and the right of the Existing Notes Creditors to take
any Enforcement Action with respect to their Non-Priority Collateral shall in
each case be subject to the provisions of Section 3.


 


“Priority Documents”
means, as to the Revolving Credit Priority Collateral, the Revolving Credit
Documents and as to the Term Loan Priority Collateral, the Term Loan Credit
Documents.  The Existing Notes Documents
shall not constitute Priority Documents for any purpose of this Agreement. at
any time prior to the Payment in Full of all Term Loan Obligations and all
Revolving Credit Obligations, and all Revolving Credit Documents and Term Loan
Credit Documents shall both constitute Priority Documents as they relate to the
Existing Notes Documents, the Existing Notes Obligations or the Existing Notes
Creditors, or any Liens in favor of the Existing Notes Creditors, for all
purposes of this Agreement.


 


“Priority Obligations”
means, as to the Term Loan Priority Collateral, the Term Loan Obligations and
as to the Revolving Credit Priority Collateral, the Revolving Credit
Obligations.  The Existing Notes
Obligations shall not constitute Priority Obligations for any purpose of this
Agreement at any time prior to the Payment in Full of all Term Loan Obligations
and all Revolving Credit Obligations, and all Revolving Credit Obligations and
Term Loan Obligations shall both constitute Priority Obligations as they relate
to the Existing Notes Obligations or the Existing Notes Creditors, or any Liens
in favor of the Existing Notes Creditors, for all purposes of this Agreement.


 


“Priority Secured Creditor”
means, as to the Term Loan Priority Collateral, the Term Loan Agent, and as to
the Revolving Credit Priority Collateral, the Revolving Agent.  The Existing Notes Creditors shall not
constitute Priority Secured Creditors for any purpose of this Agreement at any
time prior to the Payment in Full of all Term Loan Obligations and all 


 


13

















 


Revolving Credit Obligations, and the Term Loan Agent
and the Revolving Agent shall both constitute Priority Security Creditors as
they relate to the Existing Notes Obligations or the Existing Notes Creditors,
or any Liens in favor of the Existing Notes Creditors, for all purposes of this
Agreement.


 


Priority Secured Creditor also means, as to Term Loan
Priority Collateral, to the extent securing Excess Term Obligations, the
Revolving Agent, and as to Revolving Credit Priority Collateral, to the extent
securing Excess Revolving Credit Obligations, the Term Loan Agent.  A Person’s rights as a Priority Secured
Creditor described in the second sentence of this definition shall be limited
as set forth in the definition of Secondary Priority Secured Creditor and the
other applicable provisions hereof.


 


“Proceeds”  of
Collateral shall mean: (i) all “proceeds”, as defined in Article 9 of
the Uniform Commercial Code as in effect in the State of New York from time to
time, (ii) payments or distributions made with respect to such Collateral
and (iii) whatever is receivable or received when such Collateral or proceeds
thereof is sold, leased, licensed, exchanged, collected or otherwise disposed
of, whether such disposition is voluntary or involuntary.  Proceeds shall not include, as to any
Existing Notes Creditor, Proceeds of any Collateral on which the Existing Notes
Creditor do not have a valid and perfected Lien, or on which they may acquire a
Lien in violation of the provisions hereof, including Section 2.4(d) hereof


 


“Refinance”, “Refinancings” and “Refinanced”
means, in respect of any Obligations, to issue other indebtedness in exchange
or replacement for or the proceeds of which are used to repay such Obligations,
in whole or in part.


 


“Release Documents”
has the meaning set forth in Section 2.6.


 


“Release Event”
means the taking of any Enforcement Action by a Secured Creditor against all or
any portion of Collateral that is Priority Collateral as to such Secured
Creditor (including a Disposition conducted by any Obligor with the express
written consent of such Secured Creditor during the continuance of an Event of
Default under the relevant Priority Documents) or, after the occurrence and
during the continuance of an Insolvency Proceeding by or against any Obligor,
the entry of an order of the Bankruptcy Court pursuant to Section 363 or
1129 of the Bankruptcy Code (or similar Bankruptcy Law) authorizing the sale of
all or any portion of such Collateral with the support of such Secured Creditor;
provided, that, upon any such sale, the Liens of the Junior Secured
Creditors in the Collateral shall continue as to the Proceeds thereof, and,
subject to any necessary approvals of any applicable Bankruptcy Court, such
Proceeds received are applied as provided in Section 3.8 hereof, .


 


“Revolver Cash Collateral”
has the meaning set forth in Section 6.1.


 


“Revolver Purchase Option
Closing Date” has the meaning set forth in Section 5.1.


 


“Revolving Agent”
means the collateral agent (or the administrative agent acting as collateral
agent) under any Revolving Credit Agreement, and its successors and assigns in
such capacity and, from and after the execution of a Revolving Credit
Substitute Facility, one or more other agents, collateral agents, trustees or
similar contractual representatives for one or 


 


14

















 


more holders of indebtedness or other Obligations
evidenced thereunder or governed thereby and its successors and assigns in such
capacity, but in no event shall any Obligor or Affiliate thereof be, or
appoint, the Revolving Agent.


 


“Revolving Agent’s Purchase
Notice” has the meaning set forth in Section 5.2.


 


“Revolving Credit Agreement”
means (a) the initial Revolving Credit Agreement, if any, entered into by
the Company, designated as the “Revolving Credit Agreement” for purposes of
this Agreement by written notice from the Company to the Term Loan Agent, and
permitted to be entered into under the terms of the Term Loan Credit Agreement
then in effect, and otherwise complying with the provisions hereof and (i) providing
for Liens on no categories of Collateral not subject to the Liens securing the
Term Loan Obligations are granted to secure it unless such categories of
Collateral also secure the Term Loan Obligations; (ii) providing that no
additional Person is obligated on the indebtedness under such Revolving Credit
Agreement unless such additional Person also is or becomes a pari passu obligor
on the Term Loan Obligations; (iii) not including any limitations on the
ability of the Company and the other Obligors to make payments under any Term
Loan Credit Document, (iv) not providing for aggregate extensions of
credit thereunder at any time that exceed the Maximum Revolving Credit
Principal Amount and (v) being subject to the condition that no “Default”
or “Event of Default” (as defined in the Term Loan Credit Agreement as then in
effect) exists, and (b) each Revolving Credit Substitute Facility, if any, in
each case as amended, restated, supplemented, replaced, substituted or
Refinanced in accordance with the terms of this Agreement and permitted to be
entered into under the terms of the Term Loan Credit Agreement then in effect,
and otherwise complying with the provisions hereof and providing for extensions
of credit not exceeding the Maximum Revolving Credit Principal Amount,
provided, however, that in each case in clause (a) and (b) above, (x) the
Revolving Agent thereunder shall have duly executed and delivered to each other
party hereto a signed counterpart of this Agreement and shall be irrevocably
and validly entitled under the terms of such Revolving Credit Agreement to bind
the Revolving Creditors to all of the terms and conditions hereof by such
execution and delivery and (y) in no event shall any Obligor or Affiliate
thereof be permitted to be a Revolving Creditor thereunder.


 


“Revolving Credit Documents”
means the Revolving Credit Agreement, if any, all other agreements, documents
and instruments at any time executed and/or delivered by the Company or any
other Person with, to or in favor of the Revolving Agent or any Revolving
Creditor in connection therewith or related thereto, if any, including such
documents evidencing successive Refinancings of the Revolving Credit
Obligations, if any, in each case, as amended, amended and restated,
supplemented, modified, replaced, substituted or renewed from time to time in
accordance with the terms of this Agreement (provided that the aggregate
extensions of credit thereunder at any time shall not exceed the Maximum
Revolving Credit Principal Amount).


 


“Revolving Credit
Obligations” means all “Obligations” as defined in the Revolving
Credit Agreement, if any, provided that the aggregate extensions of credit
thereunder at any time shall not exceed the Maximum Revolving Credit Principal
Amount, and including without limitation all Banking Product Obligations and
Hedging Obligations, all obligations to post cash collateral in respect of
Letters of Credit or indemnities in respect thereof, and all other 


 


15

















 


obligations, liabilities and indebtedness of every
kind, nature and description owing by the Company to the Revolving Agent and
the other Revolving Creditors evidenced by or arising under one or more of the
Revolving Credit Documents (including the Revolving Loans and letter of credit
obligations), whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or unliquidated,
including principal, interest, charges, fees, costs, indemnities and reasonable
expenses, however evidenced, whether as principal, surety, endorser, guarantor
or otherwise, whether now existing or hereafter arising, whether arising
before, during or after the initial or any renewal term of the Revolving Credit
Agreement and whether arising before, during or after the commencement of any
Insolvency Proceeding with respect to the Company (and including the payment of
interest, fees, costs and other charges (including default rate interest) which
would accrue and become due but for the commencement of such Insolvency
Proceeding, but in the case of default rate interest and other amounts accruing
or payable in excess of basic contract rates specified in the Revolving Credit
Documents, only to the extent such amounts are allowed in any such Insolvency
Proceeding), exclusive of the Excess Revolving Credit Obligations, which Excess
Revolving Credit Obligations, if any, shall be excluded from (and shall not
constitute) Revolving Credit Obligations solely for purposes of this Agreement.


 


“Revolving Credit
Obligations Purchaser” has the meaning set forth in Section 5.1.


 


“Revolving Credit Priority
Collateral” means, all present and future right, title and interest
of the Company and each other Obligor in and to the following, whether now
owned or hereafter acquired, existing or arising, and wherever located:


 


(a)           all
Accounts and Payment Rights (and all Instruments, Chattel Paper,
Letter-of-Credit Rights, Supporting Obligations, and Documents evidencing the
obligation of any account debtor to pay any obligation that constitutes an
Account or Payment Right);


 


(b)           to the
extent not otherwise included above, all Payment Intangibles, Instruments,
Chattel Paper, Investment Property and Documents, in each case in this clause (b) evidencing,
derived from, constituting or relating to the property described in clause (a) above
or Proceeds or products thereof;


 


(c)           Money
(other than identifiable Proceeds of Term Loan Priority Collateral), Deposit
Accounts (except for identifiable Proceeds of Term Loan Priority Collateral
contained therein, and other than the Term Loan Priority Collateral Account
(other than identifiable Proceeds of Revolving Credit Priority Collateral
contained therein)), Securities Accounts containing Proceeds of property
described in clause (a) or (b) above (except for identifiable
Proceeds of Term Loan Priority Collateral contained therein) and all lock-boxes
at any bank containing Proceeds of property described in clause (a) or (b) above
(except for identifiable Proceeds of Term Loan Priority Collateral contained
therein, and other than the Term Loan Priority Collateral Account (other than
identifiable Proceeds of Revolving Credit Priority Collateral contained
therein)), including, except as otherwise provided herein, Proceeds of property
described in clause (a) or (b) above consisting of Money and
Certificated Securities, Uncertificated Securities, Securities Entitlements and
Investment Property or other assets credited to or deposited in any such
Deposit Account or Securities Account (including Proceeds 


 


16

















 


of property described in clause (a) or (b) above
constituting cash, cash equivalents, marketable securities and other funds held
in or on deposit in any such Deposit Account or Securities Account), but
excluding in each case above the Term Loan Priority Collateral Account (other
than identifiable Proceeds of Revolving Credit Priority Collateral contained
therein) and identifiable Proceeds of Term Loan Priority Collateral;


 


(d)           books,
Records, documents, ledger cards, computer programs, software and other
property, in each case, to the extent related to any of the foregoing; and


 


(e)           all
Proceeds of any of the Revolving Credit Priority Collateral described in
clauses (a) through (d) above, in any form (including any insurance
proceeds in respect of any or all of the foregoing).


 


Without limitation of the foregoing, property of a type
described in any one or more of the foregoing clauses (a) through (e) and
acquired by an Obligor, or created, after the commencement of an Insolvency
Proceeding with respect to such Obligor, and which, but for the application of Section 552
of the Bankruptcy Code, would constitute Collateral, shall, for the purposes of
this Agreement, nonetheless constitute “Revolving Credit Priority Collateral.”


 


“Revolving Credit
Refinancing Conditions” means that the following conditions must be
met with respect to any applicable amendment, restatement, supplement,
modification, substitution, Refinancing, renewal or replacement of the
Revolving Credit Documents: with respect to any such amendment, restatement,
supplement, modification, substitution, Refinancing, renewal or replacement: (i)
in the case of any secured Refinancing, substantially concurrently with the
entry into of definitive documentation evidencing such indebtedness, the
lenders thereunder shall enter into an intercreditor agreement on terms no less
favorable to the Term Loan Creditors than this Agreement or execute an Intercreditor
Agreement Joinder, (ii) Liens on no categories of Collateral not subject
to the Liens securing the Term Loan Obligations are granted to secure it unless
such categories of Collateral also secure the Term Loan Obligations; (iii) no
additional Person is obligated on such indebtedness unless such additional
Person also is or becomes an obligor on the Term Loan Obligations; (iv) it
does not include any limitations on the ability of the Company to make payments
under any Term Loan Credit Document, (iv) it does not provide for
aggregate extensions of credit thereunder at any time that exceed the Maximum
Revolving Credit Principal Amount and (vi) in the case of a Refinancing,
immediately after giving effect to such Refinancing, no “Default” or “Event of
Default” (as defined in the Term Loan Credit Agreement as then in effect)
exists.


 


“Revolving Credit Secured
Claim” means any portion of the Revolving Credit Obligations.


 


“Revolving Credit
Substitute Facility” means any facility that Refinances the Revolving
Credit Agreement then in existence pursuant to Section 4.2.  For the avoidance of doubt, no Revolving
Credit Substitute Facility shall be required to be a revolving or asset-based
loan facility and may be a facility evidenced or governed by a credit
agreement, loan agreement, note agreement, promissory note, indenture or any
other agreement or instrument; provided that any such Revolving Credit
Substitute Facility shall be subject to the terms of this Agreement for all
purposes set forth herein (including the Lien priorities as set forth herein as
of the date hereof 


 


17

















 


and provided that such facility does not provide for
aggregate extensions of credit thereunder at any time that exceed the Maximum
Revolving Credit Principal Amount ).


 


“Revolving Credit
Termination Date” means the date on which all Revolving Credit
Obligations have been Paid in Full.


 


“Revolving Creditors”
means , at any time, if any, the Revolving Agent, the Revolving Lenders, the
administrative agent under the Revolving Credit Agreement, the collateral Agent
under the Revolving Credit Agreement, each lender, issuing bank and swingline
lender under the Revolving Credit Agreement, each holder of any Hedging
Obligations and Banking Product Obligations that at the time of the incurrence
of such Hedging Obligations or Banking Product Obligations is a lender under
the Revolving Credit Agreement or an Affiliate thereof and is a secured party
under any Revolving Credit Document, the beneficiaries of each indemnification
obligation undertaken by any Obligor under any Revolving Credit Document, each
other Person that provides letters of credit, guarantees or other credit
support related thereto under any Revolving Credit Document and each other holder
of, or obligee in respect of, any Revolving Credit Obligations (including
pursuant to an Revolving Credit Substitute Facility), in each case to the
extent designated as a secured party under any Revolving Credit Document
outstanding at such time, but in no event shall any Obligor or Affiliate
thereof be or become a Revolving Creditor.


 


“Revolving Lenders”
means the lenders from time to time party from time to time to a Revolving
Credit Agreement, if any, but in no event shall any Obligor or Affiliate thereof
be or become a Revolving Lender.


 


“Revolving Loans”
means the loans, if any, outstanding under the Revolving Credit Documents from
time to time.


 


“Secondary Junior Secured
Creditor” means a Junior Secured Creditor of the type described in
the second sentence of the definition of “Junior Secured Creditor”.


 


“Secondary Priority Secured
Creditor” means a Priority Secured Creditor of the type described in
the second sentence of the definition of “Priority Secured Creditor”.  As more fully set forth in Section 2.1,
(i) the Term Loan Agent in its capacity as Secondary Priority Secured
Creditor shall not take any Enforcement Action or actions hereunder with
respect to the Revolving Credit Priority Collateral prior to the Revolving
Credit Termination Date; and (ii) the Revolving Agent in its capacity as
Secondary Priority Secured Creditor shall not take any Enforcement Action or
other action hereunder with respect to the Term Loan Priority Collateral prior
to the Term Loan Termination Date.


 


“Secured Creditors” means the
Term Loan Creditors and the Revolving Creditors and the Existing Notes
Creditors, or any of them.


 


“Senior Adequate Protection
Liens” has the meaning set forth in Section 6.2.


 


“Standstill Period”
means the period commencing on the date of an Event of Default and ending upon
the date which is the earlier of (a) 180 days after the later of (i) the
date the Junior Secured Creditor has declared an Event of Default under its
Obligation Documents 


 


18

















 


and has accelerated its Junior Obligations and (ii) the
date that the Priority Secured Creditor has received a Junior Lien Default
Notice with respect to such Event of Default stating that the Junior
Obligations have been declared due and payable and (b) the date on which
the Priority Obligations of such Priority Secured Creditor have been Paid in
Full; provided that (i) in the event that as of any day during such
180  days, no Event of Default in respect
of the Junior Obligations is continuing, then the Standstill Period shall be
deemed not to have commenced and (ii) the 180 day period specified above
shall be tolled during any period an Insolvency Proceeding has occurred and is
continuing.


 


“Term Lenders”
means the “Lenders” or “Term Lenders” or “Holders” or “Noteholders” (or
comparable term) under and as defined in any Term Loan Credit Agreement.


 


“Term Loan”
means each term loan or other loan or extension of credit made or outstanding
under the Term Loan Credit Documents from time to time.


 


“Term Loan Agent”
means (i) so long as New Notes Obligations are outstanding under the New
Notes Documents, the New Notes Agent, (ii) and after all New Notes
Obligations have been Paid in Full, and so long as Term Loan Obligations are
outstanding under any Term Loan Substitute Facility or the agreements and other
documents securing, guaranteeing, evidencing, governing or otherwise relating
to the foregoing, in each case, as amended, amended and restated, supplemented,
modified, replaced, substituted or renewed from time to time in accordance with
the terms of this Agreement, one or more other agents, collateral agents,
trustees or similar contractual representatives for one or more holders of
indebtedness or other Term Loan Obligations outstanding thereunder or in respect
thereof from time to time.


 


“Term Loan Agent’s Purchase
Notice” has the meaning set forth in Section 5.1.


 


“Term Loan Credit
Agreement” means (a) the New Notes
Indenture and (b) upon Payment in Full of the New Notes Obligations
outstanding under the New Notes Indenture, the credit agreement, loan
agreement, note agreement, promissory note, indenture or any other agreement or
instrument primarily evidencing or governing each Term Loan Credit Substitute
Facility, in each case as the same may from time to time be amended, amended
and restated, supplemented, modified, replaced, substituted, renewed or
Refinanced in accordance with the terms of this Agreement.


 


“Term Loan Credit Documents”
means the Term Loan Credit Agreement, all New Notes Documents, and all other
agreements, documents and instruments at any time executed and/or delivered by
any Obligor or any other Person with, to or in favor of the Term Loan Agent or
any other Term Loan Creditor in connection therewith or related thereto,
including such documents evidencing successive Refinancings of the Term Loan
Obligations, and any Term Loan Credit Substitute Facility, and all agreements
and other documents securing, guaranteeing, evidencing, governing or otherwise
relating to any of the foregoing, in each case, as amended, amended and
restated, supplemented, modified, replaced, substituted or renewed from time to
time in accordance with the terms of this Agreement.


 


“Term Loan Credit
Substitute Facility” means any facility that Refinances the Term
Loan Credit Agreement then in existence pursuant to Section 4.1.  For the avoidance of 


 


19

















 


doubt, the Term Loan Credit Substitute Facility may be
a facility evidenced or governed by a credit agreement, loan agreement, note
agreement, promissory note, indenture or any other agreement or instrument; provided
that any such Term Loan Substitute Facility shall be subject to the terms of
this Agreement for all purposes set forth herein (including the Lien priorities
as set forth herein as of the date hereof).


 


“Term Loan Creditors”
means , at any time, the Term Loan Agent, the Term Lenders, the administrative
agent under the Term Loan Credit Agreement and any other Term Loan Credit
Documents, the collateral agent under the Term Loan Credit Agreement and any
other Term Loan Credit Documents, each lender, noteholder or other creditor
under the Term Loan Credit Agreement, each holder of any Term Loan Hedging
Obligations that at the time of the incurrence of such Hedging Obligations is a
lender or noteholder under the Term Loan Credit Agreement or an Affiliate
thereof and is a secured party under any Term Loan Credit Document, the
beneficiaries of each indemnification obligation undertaken by any Obligor
under any Term Loan Credit Document, and each other holder of, or obligee in
respect of, any Term Loan Obligations (including pursuant to a Term Loan Credit
Substitute Facility), in each case to the extent designated as a secured party
under any Term Loan Credit Document outstanding at such time.


 


“Term Loan Hedging
Obligation” means any Hedging Obligations owed by the Borrower to
the Term Loan Creditors or any of their Affiliates pursuant to agreements
entered into in connection with any Term Loan Credit Agreement.


 


“Term Loan Obligations”
means all obligations, liabilities and indebtedness of every kind, nature and
description owing by the Company and each other Obligor under the Term Loan
Credit Documents, whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or unliquidated,
including principal, interest, charges, fees, costs, indemnities and reasonable
expenses, however evidenced, and whether as principal, surety, endorser,
guarantor or otherwise, whether now existing or hereafter arising, whether
arising before, during or after the initial or any renewal term of the Term
Loan Credit Agreement and whether arising before, during or after the
commencement of any Insolvency Proceeding with respect to the Company or any other
Obligor (as such term is defined in the Term Loan Credit Agreement) (and
including the payment of any interest, fees, costs and other charges (including
default rate interest) which would accrue and become due but for the
commencement of such Insolvency Proceeding, but in the case of default rate
interest and other amounts accruing or payable in excess of basic contract
rates specified in the Term Loan Credit Documents, only to the extent such
amounts are allowed in any such Insolvency Proceeding), exclusive of the Excess
Term Obligations, which Excess Term Obligations shall be excluded from (and
shall not constitute) Term Loan Obligations solely for purposes of this
Agreement.


 


“Term Loan Priority
Collateral” means all Collateral other than Revolving Credit
Priority Collateral.  Without limitation
of the foregoing, property not of a type described in the definition of “Revolving
Credit Priority Collateral,” and acquired by an Obligor, or created, after the
commencement of an Insolvency Proceeding with respect to such Obligor, and
which, but for the application of Section 552 of the Bankruptcy Code,
would constitute Collateral, shall, for the purposes of this Agreement,
nonetheless constitute “Term Loan Priority Collateral.” Notwithstanding the
foregoing, in no event shall property that is otherwise Term 


 


20

















 


Loan Priority Collateral constitute Revolving Credit
Priority Collateral due to the fact that it was acquired by the Company or any
other Obligor with the Proceeds of Revolving Credit Priority Collateral.


 


“Term Loan Priority
Collateral Account” means any deposit account established or
maintained by an Obligor or the Term Loan Agent or any representative of either
of the foregoing for the sole purpose of holding the identifiable Proceeds of
any Disposition of Term Loan Priority Collateral that are required to be held
in such account or accounts pursuant to the terms of any Term Loan Credit
Document as in effect on the date hereof (or any comparable provision of any
successor Term Loan Credit Document).


 


“Term Loan Purchase Option
Closing Date” has the meaning set forth in Section 5.2.


 


“Term Loan Refinancing
Conditions” means that the following conditions must be met with
respect to any applicable amendment, restatement, supplement, modification,
substitution, Refinancing, renewal or replacement of the Term Loan Credit
Documents if a Revolving Credit Agreement then exists and the Revolving Agent
is a party hereto: (i) it has a final maturity no sooner than (unless such
final maturity is more than six months after the stated final maturity of the
Revolving Credit Obligations as in effect on the date hereof) and a weighted
average life (measured as of the date of such amendment, restatement,
supplement, modification, substitution, Refinancing, renewal or replacement) no
less than that applicable to the Term Loan Obligations on the date hereof; (ii)
in the case of any secured Refinancing, substantially concurrently with the
entry into definitive documentation evidencing such indebtedness, the lenders
thereunder shall enter into an intercreditor agreement on terms no less
favorable to the Revolving Creditors than this Agreement or execute an
Intercreditor Agreement Joinder, (ii) Liens on no categories of Collateral
not subject to the Liens securing the Revolving Credit Obligations are granted
to secure it unless such categories of Collateral also secure the Revolving
Credit Obligations; and (iii) no additional Person is obligated on such
indebtedness unless such additional Person also is or becomes an obligor on the
Revolving Credit Obligations.


 


“Term Loan Secured Claim”
means any portion of the Term Loan Obligations.


 


“Term Loan  Termination Date” means the date on which all Term Loan
Obligations have been Paid in Full (but shall not be deemed to occur if a
Refinancing of any then existing Term Loan Obligations occurs or a Term Loan
Credit Substitute Facility is entered into in connection with the repayment and
Refinancing of any then existing Term Loan Obligations).


 


“Term Obligations
Purchaser” has the meaning set forth in
Section 5.1.


 


“UCC” means the
Uniform Commercial Code of any applicable jurisdiction and, if the applicable
jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial
Code as in effect in the State of New York.


 


“UCC Notice” has
the meaning set forth in Section 3.2.


 


The terms “Certificated Security,”
“Commodity Account,” “Deposit Account,” “Document,” “Equipment,” “Goods,” “Healthcare Insurance Receivable,” “Instrument,”


 


21
















 


“Investment Property,”
“Letter-of-Credit Right,” “Money,” “Payment Intangible,”
“Records,” “Securities
Account,” “Securities Entitlements,”
“Supporting Obligations” and “Uncertificated Securities” have the meanings ascribed to
them in the Uniform Commercial Code as in effect in the State of New York from
time to time.


 


1.2           Certain
Matters of Construction.  The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement and section references are to this Agreement unless
otherwise specified.  For purposes of
this Agreement, the following additional rules of construction shall apply: (a) wherever
from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and the plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the masculine,
the feminine and the neuter, (b) the term “including” shall not be
limiting or exclusive, unless specifically indicated to the contrary, (c) all
references to statutes and related regulations shall include any amendments of
same and any successor statutes and regulations, (d) unless otherwise
specified, all references to any instruments or agreements, including
references to any of this Agreement and the Obligation Documents, shall include
any and all amendments or other modifications thereto and any and all
extensions or renewals thereof, and refinancings and replacements thereof, in
each case, made in accordance with the terms thereof and hereof, and (e) the
terms “property” and “asset” or “properties” and “assets” shall have the same
meaning.


 


Section 2.                                            Security
Interests; Priorities.


 


2.1           Priorities.


 


(a)           Each Secured
Creditor hereby acknowledges that other Secured Creditors have been, or may in
the future be, granted Liens upon the Collateral to secure their respective
Obligations and hereby consent to such grant.


 


(b)           (i) The
Liens of the Term Loan Agent, the Term Loan Creditors and any agent,
representative or trustee representative acting on behalf of the Term Loan
Agent or Term Loan Creditors on the Term Loan Priority Collateral to the extent
securing (or purporting to secure) the Term Loan Obligations are and shall be
senior in right, priority, operation and effect to the Liens of (x) the
Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors on the
Term Loan Priority Collateral and (y) the Existing Notes Agent, the
Existing Notes Creditors and any agent, representative or trustee acting on
behalf of the Existing Notes Agent or Existing Notes Creditors on the Term Loan
Priority Collateral and (ii) such Liens of (x) the Revolving Agent,
the Revolving Creditors and any agent, representative or trustee acting on
behalf of the Revolving Agent or Revolving Creditors, if any, on the Term Loan
Priority Collateral and (y) the Existing Notes Agent, the Existing Notes
Creditors and any agent, representative or trustee acting on behalf of the
Existing Notes Agent or Existing Notes Creditors, in each case above, on the
Term Loan Priority Collateral, in each case above, are and shall be junior and
subordinate in right, priority, operation and effect to the Liens of the Term
Loan Agent, the Term Loan Creditors and any agent, representative or trustee
representative acting on behalf of the Term Loan Agent or Term Loan Creditors
in the Term Loan Priority Collateral to the extent securing (or purporting to 


 


22

















 


secure) the Term Loan Obligations.  The Liens of the Term Loan Agent, the Term
Loan Creditors and any agent, representative or trustee representative acting
on behalf of the Term Loan Agent or Term Loan Creditors on the Term Loan
Priority Collateral, to the extent securing (or purporting to secure) Excess
Term Obligations, shall be junior and subordinate to the Liens, if any, of the
Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors on the
Term Loan Priority Collateral, to the extent securing Revolving Credit
Obligations. The Liens of the Term Loan Agent, Term Loan Creditors and any
agent, representative or trustee acting on behalf of the Term Loan Agent or
Term Loan Creditors on the Revolving Credit Priority Collateral, to the extent
securing (or purporting to secure) the Term Loan Obligations, shall be senior
to the Liens, if any, of the Revolving Agent, the Revolving Creditors and any
agent, representative or trustee acting on behalf of the Revolving Agent or
Revolving Creditors in the Revolving Priority Collateral, to the extent
securing (or purporting to secure) Excess Revolving Credit Obligations.


 


The Liens of the Term Loan Agent, the Term Loan Creditors and
any agent, representative or trustee representative acting on behalf of the
Term Loan Agent or Term Loan Creditors on the Revolving Credit Priority
Collateral to the extent securing (or purporting to secure) the Term Loan
Obligations are and shall be senior in right, priority, operation and effect to
the Liens of the Existing Notes Agent, the Existing Notes Creditors and any
agent, representative or trustee acting on behalf of the Existing Notes Agent
or Existing Notes Creditors on the Revolving Credit Priority Collateral and
such Liens of the Existing Notes Agent, the Existing Notes Creditors and any
agent, representative or trustee acting on behalf of the Existing Notes Agent
or Existing Notes Creditors on the Revolving Credit Priority Collateral, in
each case above, are and shall be junior and subordinate in right, priority,
operation and effect to the Liens of the Term Loan Agent, the Term Loan
Creditors and any agent, representative or trustee representative acting on
behalf of the Term Loan Agent or Term Loan Creditors in the Revolving Credit
Priority Collateral to the extent securing (or purporting to secure) the Term
Loan Obligations.


 


(c)           (i) The
Liens, if any, of the Revolving Agent, the Revolving Creditors and any agent,
representative or trustee acting on behalf of the Revolving Agent or Revolving
Creditors on the Revolving Credit Priority Collateral to the extent securing
Revolving Credit Obligations shall be senior in right, priority, operation and
effect to the Liens of (x) the Term Loan Agent, Term Loan Creditors and
any agent, representative or trustee acting on behalf of the term Loan Agent or
Term Loan Creditors on the Revolving Credit Priority Collateral and (y) the
Existing Notes Agent, the Existing Notes Creditors and any agent,
representative or trustee acting on behalf of the Existing Notes Agent or
Existing Notes Creditors on the Revolving Credit Priority Collateral and (ii) such
Liens of (x) the Term Loan Agent, Term Loan Creditors and any agent,
representative or trustee acting on behalf of the Term Loan Agent or Term Loan
Creditors and (y) the Existing Notes Agent, the Existing Notes Creditors
and any agent, representative or trustee acting on behalf of the Existing Notes
Agent or Existing Notes Creditors, in each case above, on the Revolving Credit
Priority Collateral, in each case above, are and shall be junior and
subordinate in right, priority, operation and effect to the Liens, if any, of
the Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors in the
Revolving Credit Priority Collateral to the extent securing (or purporting to
secure) Revolving Credit Obligations. 
The Liens, if any, of the Revolving Agent, the Revolving Creditors and
any Agent, representative or trustee acting on 


 


23

















 


behalf of the Revolving Agent or Revolving Creditors on the
Revolving Credit Priority Collateral, to the extent securing (or purporting to
secure) Excess Revolving Credit Obligations, shall be junior and subordinate to
the Liens of the Term Loan Agent, Term Loan Creditors and any agent,
representative or trustee acting on behalf of the Term Loan Agent or Term Loan
Creditors on the Revolving Credit Priority Collateral, to the extent securing
(or purporting to secure) Term Loan Obligations. The Liens, if any, of the
Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors on the
Term Loan Priority Collateral, to the extent securing (or purporting to secure)
the Revolving Credit Obligations, shall be senior to the Liens of the Term Loan
Agent, Term Loan Creditors and any agent, representative or trustee acting on
behalf of the Term Loan Agent or Term Loan Creditors in the Term Loan Priority
Collateral, to the extent securing (or purporting to secure) Excess Term
Obligations.


 


The Liens, if any, of the Revolving Agent, the Revolving
Creditors and any agent, representative or trustee representative acting on
behalf of the Revolving Agent or Revolving Creditors on the Term Loan Priority
Collateral to the extent securing (or purporting to secure) the Revolving
Credit Obligations are and shall be senior in right, priority, operation and
effect to the Liens of the Existing Notes Agent, the Existing Notes Creditors
and any agent, representative or trustee acting on behalf of the Existing Notes
Agent or Existing Notes Creditors on the Term Loan Priority Collateral and such
Liens of the Existing Notes Agent, the Existing Notes Creditors and any agent,
representative or trustee acting on behalf of the Existing Notes Agent or
Existing Notes Creditors on the Term Loan Priority Collateral, in each case
above, are and shall be junior and subordinate in right, priority, operation
and effect to the Liens, if any, of the Revolving Agent, the Revolving
Creditors and any agent, representative or trustee representative acting on
behalf of the Revolving Agent or Revolving Creditors in the Term Loan Priority
Collateral to the extent securing (or purporting to secure) the Revolving
Credit Obligations.


 


(d)           The
priorities of the Liens provided in this Section 2.1 shall not be
altered or otherwise affected by any amendment, modification, supplement,
extension, renewal, restatement, replacement or Refinancing of any of the
Obligations, by any action or inaction which any of the Secured Creditors may
take or fail to take in respect of any Collateral or, except as expressly
contemplated hereby, by the release of any Collateral or the release of any of
the guarantees of any of the Obligations.


 


(e)           All
rights, powers and priorities of the Term Loan Agent as a Primary Priority
Secured Creditor are senior and superior to the rights, powers and priorities
of the Revolving Agent as a Secondary Priority Secured Creditor, and all
rights, powers and priorities of the Term Loan Agent and the other Term Loan
Creditors as secured creditors in respect of the Collateral are senior and
superior to all rights, however arising, of the Existing Notes Creditors as
secured creditors in respect of the Collateral. 
The Revolving Agent as a Secondary Priority Secured Creditor shall exercise
no rights, powers or remedies as a Priority Secured Creditor so long as the
Term Loan Obligations have not been Paid in Full (without prejudice to its
rights as a Junior Secured Creditor under Section 3).  The Existing Notes Creditors shall exercise
no rights, powers or remedies as secured parties in respect of the Collateral
so long as the Term Loan Obligations have not been Paid in Full.  If at any time no Revolving Credit Agreement
shall be in effect, the Term Loan Agent shall be entitled to act a Primary
Priority Secured Creditor in 


 


24

















 


respect of the Term Loan Priority Collateral and the
Revolving Credit Priority Collateral for all purposes of this Agreement.


 


(f)            All
rights, powers and priorities of the Revolving Agent as a Primary Priority
Secured Creditor are senior and superior to the rights, powers and priorities
of the Term Loan Agent as a Secondary Priority Secured Creditor, and all
rights, powers and priorities of the Revolving Agent and the other Revolving
Creditors as secured creditors in respect of the Collateral are senior and
superior to all rights, however arising, of the Existing Notes Creditors as
secured creditors in respect of the Collateral. The Term Loan Agent as a
Secondary Priority Secured Creditor shall exercise no rights, powers or
remedies as a Priority Secured Creditor so long as the Revolving Credit
Obligations have not been Paid in Full (without prejudice to its rights as a
Junior Secured Creditor under Section 3). 
The Existing Notes Creditors shall exercise no rights, powers or
remedies as secured parties in respect of the Collateral so long as the
Revolving Credit Obligations have not been Paid in Full.


 


(g)           All
rights, powers and priorities of the Term Loan Agent as a Primary Junior
Secured Creditor are senior and superior to the rights, powers and priorities
of the Revolving Agent as a Secondary Junior Secured Creditor.  The Revolving Agent as a Secondary Junior
Secured Creditor shall exercise no rights, powers or remedies as a Junior
Secured Creditor so long as the Term Loan Obligations have not been Paid in
Full, but at all times the Revolving Agent as a Secondary Junior Secured
Creditor shall have the obligations and responsibilities of a Junior Secured
Creditor.


 


(h)           All
rights, powers and priorities of the Revolving Agent as a Primary Junior
Secured Creditor are senior and superior to the rights, powers and priorities
of the Term Loan Agent as a Secondary Junior Secured Creditor.  The Term Loan Agent as a Secondary Junior
Secured Creditor shall exercise no rights, powers or remedies as a Junior
Secured Creditor so long as the Revolving Credit Obligations have not been Paid
in Full, but at all times the Term Loan Agent as a Secondary Junior Secured
Creditor shall have the obligations and responsibilities of a Junior Secured
Creditor.


 


2.2           No
Alteration of Priority.  The
priorities set forth in this Agreement in respect of Collateral are applicable
irrespective of the order, time, method or manner of the creation, attachment,
or perfection, or the order or time of filing or recordation of any document or
instrument, or other method of perfecting a Lien in favor of each Secured
Creditor in any Collateral, and notwithstanding any conflicting terms or
conditions that may be contained in any of the Obligation Documents, any
provision of any agreement, document, instrument or applicable law and
notwithstanding any subsequent failure to maintain perfection of the Lien in
favor of the applicable Secured Creditor, provided that there has been an
initial valid perfection of the Lien in such Collateral as to the relevant
Secured Creditor under applicable law. 
The parties hereto acknowledge and agree that it is their intention that
the Collateral securing the Revolving Credit Obligations and the Collateral
securing the Term Loan Obligations as of the date hereof be identical in all
material respects (except with respect to priorities as set forth in Section 2.1
hereof) and, in furtherance of such intent, the parties hereto agree:  (a) to cooperate in good faith in order
to determine, upon any request by the Revolving Agent or the Term Loan Agent,
the specific assets included in the Collateral securing their respective
Obligations, the steps taken to perfect the Liens thereon and the identity of
the respective parties obligated under 


 


25

















 


any Obligation Document, and (b) any Lien obtained by
any Secured Creditor in respect of any judgment obtained in respect of any
obligations shall be subject in all respects to the terms of this
Agreement.  The parties hereto further
acknowledge and agree that it is their intention that the Collateral securing
the Revolving Credit Obligations and the Collateral securing the Term Loan
Obligations include at all times all of the Collateral securing the Existing
Notes Obligations (subject to the priorities as set forth in Section 2.1
hereof) and, in furtherance of such intent, the Existing Notes Creditors
agree:  (a) to cooperate in good
faith in order to determine, upon any request by the Revolving Agent or the
Term Loan Agent, the specific assets included in the Collateral securing the
Existing Notes Obligations, the steps taken to perfect the Liens thereon and
the identity of the respective parties obligated under any Obligation Document
and (b) any Lien obtained by any Existing Notes Creditor in respect of any
judgment obtained in respect of any obligations shall be subject in all
respects to the terms of this Agreement.. 
The parties hereto further acknowledge and agree that it is not their
intention that the Collateral securing the Existing Notes Obligations include
all Collateral securing the Revolving Credit Obligations and the Term Loan
Obligations, and that there may be Collateral securing the Revolving Credit
Obligations and the Term Loan Obligations that does not secure the Existing
Notes Obligations , including without limitation as contemplated by Section 2.4(d)


 


2.3           Perfection; Contesting Liens. 
Each Secured Creditor shall be
solely responsible for creating, perfecting and maintaining the perfection of
its Lien in the Collateral in which such Secured Creditor has been or is
intended to be granted a Lien, provided that pursuant to the Existing
Notes Documents and New Notes Documents, the Obligors party to such agreements
have agreed to be solely responsible for creating, perfecting and maintaining
Liens in the Collateral which secure the Existing Note Obligations or New Notes
Obligations, as the case may be.  The
foregoing provisions of this Agreement are intended solely to govern the respective
Lien priorities as among the Secured Creditors in respect of Collateral and
shall not impose on any Secured Creditor any obligations in respect of the
Disposition of Proceeds or any Collateral that would conflict with prior
perfected claims therein in favor of any other Person or any order or decree of
any court or governmental authority or any applicable law.  Each Secured Creditor agrees that it will not
(a) institute, join in or support any contest of the validity, perfection,
priority or enforceability of the Liens granted to, or purported to be granted
to, any other Secured Creditor in the Collateral (or any property purported to
be included in the Collateral), including, without limitation, any equity
interests in, or any assets of, any New License Subsidiary or any proceeds
thereof, or the enforceability of the Term Loan Obligations or the Revolving
Credit Obligations (provided that nothing in this Agreement shall be
construed to prevent or impair the rights of the Term Loan Agent or the
Revolving Agent to enforce this Agreement); or (b) prior to payment in
full of the Term Loan Obligations, assert any right as an unsecured creditor
or, in the case of the Existing Notes Creditors, a secured creditor, in, to or
under any equity interests in, or any assets of, any New License Subsidiary or
any proceeds thereof.


 


2.4           Limitation
on New Liens.


 


(a)           The
parties hereto acknowledge that, as of the date hereof, (i) the Liens of
the Term Loan Agent under the Term Loan Credit Documents do not encumber any
assets of any Obligor which assets are not subject to a Lien of the Revolving
Agent under the Revolving Credit Documents (unless as of the date hereof there
are no Revolving Credit Documents in effect) and (ii) the Liens of the
Revolving Agent under the Revolving Credit Documents, if any, 


 


26

















 


do not encumber any assets of any Obligor which assets are
not subject to a Lien of the Term Loan Agent under the Term Loan Credit
Documents and (iii) the Liens of the Existing Notes Creditors under the
Existing Notes Documents do not encumber any assets of any Obligor which assets
are not subject to a Lien of the Term Loan Agent under the Term Loan Credit
Documents and a Lien of the Revolving Agent under the Revolving Credit
Documents (unless as of the date hereof there are no Revolving Credit Documents
in effect).


 


(b)           During any
period when Revolving Credit Obligations are outstanding and until such
Revolving Credit Obligations have been Paid in Full, no Term Loan Creditor
shall acquire after the initial closing date under the Term Loan Credit
Agreement any Lien on any assets of any Obligor securing any Term Loan
Obligation which assets are not also subject to the Lien, if any shall then
exist, of the Revolving Agent under the Revolving Credit Documents, unless the
Revolving Agent shall be notified thereof and shall have had an opportunity to
create a Lien thereon comparable to the Lien thereon in favor of the Term Loan
Creditors, provided that, notwithstanding the foregoing, if the Revolving Agent
shall have had an opportunity to create such a comparable Lien and shall have
failed to do so beyond 30 days after the later of (x) the date it receives
notice thereof and (y) the date it has the opportunity to create such
comparable Lien, the Term Loan Creditors shall nevertheless be entitled to
create and maintain such Lien on such assets though they are not also subject
to the Lien of the Revolving Agent under the Revolving Credit Documents.  Such Liens, if created in favor of the Term
Loan Agent or Term Loan Creditors and the Revolving Agent or Revolving
Creditors shall be subject to the Lien priorities set forth herein.  If any Term Loan Creditor shall acquire or
hold any Lien on any assets of any Obligor securing any Term Loan Obligation
which assets are not also subject to the Lien of the Revolving Agent under the
Revolving Credit Documents (other than by reason of the failure of the
Revolving Agent or the other Revolving Creditors to obtain such a Lien as
contemplated by the first sentence hereof), subject to the Lien priorities set
forth herein, then the Term Loan Agent (or the relevant Term Loan Creditor)
shall, without the need for any further consent of any other Term Loan Creditor
and notwithstanding anything to the contrary in any other Term Loan Credit
Document be deemed to also hold and have held, and the applicable Obligors
hereby grant in favor of the Revolving Agent for the benefit of the Revolving
Creditors as security for the Revolving Credit Obligations, such a comparable
Lien for the benefit of the Revolving Agent as security for the Revolving
Credit Obligations (subject to the Lien priorities set forth herein and other
terms hereof) and the Company shall promptly notify the Revolving Agent in
writing of the existence of such Lien.


 


(c)           Until the
Term Loan Obligations have been Paid in Full, no Revolving Creditor shall
acquire after the initial closing date under the Revolving Credit Agreement any
Lien on any assets of any Obligor securing any Revolving Credit Obligation
which assets are not also subject to the Lien of the Term Loan Agent under the
Term Loan Credit Documents, unless the Term Loan Agent shall be notified
thereof and shall have had an opportunity to create a Lien thereon comparable
to the Lien thereon in favor of the Revolving Loan Creditors, provided that,
notwithstanding the foregoing, if the Term Loan Agent shall have had an
opportunity to create such a comparable Lien and shall have failed to do so
beyond 30 days after the later of (x) the date it receives notice thereof
and (y) the date it has the opportunity to create such comparable Lien,
the Revolving Loan Creditors shall nevertheless be entitled to create and
maintain such Lien on such assets though they are not also subject to the Lien
of the Term Loan Agent under the Term Loan Credit Documents.  Such Liens, if created in favor of the Term
Loan Agent or 


 


27

















 


Term Loan Creditors and the Revolving Agent or Revolving
Creditors shall be subject to the Lien priorities set forth herein.  If any Revolving Creditor shall acquire or
hold any Lien on any assets of any Obligor securing any Revolving Credit
Obligation which assets are not also subject to the Lien of the Term Loan Agent
under the Term Loan Credit Documents (other than by reason of the failure of
the Term Loan Agent or the other Term Loan Creditors to obtain such a Lien as
contemplated by the first sentence hereof), subject to the Lien priorities set
forth herein, then the Revolving Agent (or the relevant Revolving Creditor)
shall, without the need for any further consent of any other Revolving Creditor
and notwithstanding anything to the contrary in any other Revolving Credit
Document be deemed to also hold and have held, and the applicable Obligors
hereby grant in favor of the Term Loan Agent for the benefit of the Term Loan
Creditors as security for the Term Loan Obligations, such a comparable Lien for
the benefit of the Term Loan Agent as security for the Term Loan Obligations
(subject to the Lien priorities set forth herein and other terms hereof) and
the Company shall promptly notify the Term Loan Agent in writing of the
existence of such Lien.


 


(d)           No
Existing Notes Creditor shall, after the date hereof, acquire any Lien on (i) any
assets of any Obligor that do not at such time secure the Term Loan Obligations
and, if then outstanding, the Revolving Credit Obligations, or (ii) any
equity interests in, or any assets of, any New License Subsidiary or any
proceeds thereof.


 


2.5           Proceeds
of Collateral.  Subject to the
proviso to the first sentence of Section 6.5, any Non-Priority
Collateral or Proceeds thereof received by any Secured Creditor including,
without limitation, any such Non-Priority Collateral constituting Proceeds, or
any payment or Distribution, that may be received by any Secured Creditor (a) in
connection with the exercise of any right or remedy (including any right of
setoff) with respect to Non-Priority Collateral, (b) in connection with
any insurance policy claim or any condemnation award (or deed in lieu of
condemnation) as to Non-Priority Collateral, (c) from the collection or
other Disposition of, or realization on, Non-Priority Collateral, whether or
not pursuant to an Insolvency Proceeding or (d) in violation of this Agreement,
shall be segregated and held in trust and promptly paid over to the Priority
Secured Creditor, in the same form as received, with any necessary
endorsements, and each Junior Secured Creditor hereby authorizes the Priority
Secured Creditor to make any such endorsements as agent for such Junior Secured
Creditor (which authorization, being coupled with an interest, is
irrevocable).  In furtherance of the
foregoing, any Collateral or Proceeds thereof received by any Existing Notes
Creditor including, without limitation, any such Collateral constituting
Proceeds, or any payment or Distribution, that may be received by any Existing
Notes Creditor (a) in connection with the exercise of any right or remedy
(including any right of setoff) with respect to any Collateral, (b) in
connection with any insurance policy claim or any condemnation award (or deed
in lieu of condemnation) as to any Collateral, (c) from the collection or
other Disposition of, or realization on, any Collateral, whether or not
pursuant to an Insolvency Proceeding or (d) in violation of this
Agreement, shall be segregated and held in trust and promptly paid over to the
Priority Secured Creditor, in the same form as received, with any necessary
endorsements, and each Existing Notes Creditor hereby authorizes the Priority
Secured Creditor to make any such endorsements as agent for such Existing Notes
Creditor (which authorization, being coupled with an interest, is
irrevocable).  The Term Loan Agent, on
behalf of itself and the Term Loan Creditors, and the Existing Notes Agent, on
behalf of itself and the Existing Notes Creditors, each acknowledges and agrees
that the Revolving Credit Agreement includes a revolving commitment and that in
the ordinary 


 


28

















 


course of business Revolving Agent will apply Proceeds of
Revolving Credit Priority Collateral in accordance with the terms thereof
(which may not permanently reduce such revolving commitment) and may make
advances thereunder from time to time, and may apply Proceeds of Term Loan
Priority Collateral not required pursuant to the provisions of the Term Loan
Credit Documents as in effect on the date hereof or this Agreement to be paid
over to the Term Loan Agent or Term Loan Creditors to repay Revolving Credit
Obligations in the ordinary course.  The
Existing Notes Agent, on behalf of itself and the Existing Notes Creditors,
acknowledges and agrees that the Revolving Credit Agreement includes a
revolving commitment and that in the ordinary course of business Revolving
Agent will apply Proceeds of Revolving Credit Priority Collateral in accordance
with the terms thereof (which may not permanently reduce such revolving
commitment) and may make advances thereunder from time to time, and may apply
Proceeds of Term Loan Priority Collateral not required pursuant to the
provisions of the Term Loan Credit Documents as in effect on the date hereof or
this Agreement to be paid over to the Term Loan Agent or Term Loan Creditors to
repay Revolving Credit Obligations in the ordinary course.  The Revolving Agent, on behalf of itself and
the Revolving Creditors, acknowledges and agrees that the Term Loan Credit
Agreement contains provisions requiring prepayment of the Term Loan Obligations
and that the Obligors may continue to make such prepayments of Term Loan
Obligations notwithstanding any provision to the contrary in the Revolving
Credit Agreement or other Revolving Credit Documents.  The Existing Notes Agent, on behalf of itself
and the Existing Notes Creditors, acknowledges and agrees that Collateral and
Proceeds thereof may be applied to repayment or prepayment of the Revolving
Credit Obligations and Term Loan Obligations in accordance with the provisions
thereof, and prior to payment of the Existing Notes Obligations notwithstanding
any contrary provision in any Existing Notes Document.


 


2.6           Release
of Collateral Upon Permitted Collateral Sale.  Each Junior Secured Creditor shall at any
time in connection with any Permitted Collateral Sale of Collateral that, as to
such Junior Secured Creditor, is Non-Priority Collateral and that is made free
and clear of the Liens of the Priority Secured Creditors (such Lien continuing
as to Proceeds):  (a) upon the
request of the Priority Secured Creditor as to such Collateral subject to such
Permitted Collateral Sale, release or otherwise terminate its Liens on such
Collateral (provided that such Lien shall continue as to Proceeds
thereof), (b) promptly deliver such terminations of financing statements,
partial lien releases, mortgage satisfactions and discharges, endorsements,
assignments or other instruments of transfer, termination or release
(collectively, “Release Documents”) and take such
further actions as the Priority Secured Creditor shall reasonably require in
order to release and/or terminate such Junior Secured Creditor’s Liens on such
Collateral subject to such Permitted Collateral Sale (but not the Proceeds of
such Collateral), and (c) be deemed to have consented under the applicable
Obligation Documents to such Permitted Collateral Sale free and clear of the
Junior Secured Creditor’s security interest (it being understood that the
Junior Secured Creditor shall still, subject to the terms of this Agreement,
have a security interest with respect to the Proceeds of such Collateral) and
to have waived the provisions of the applicable Obligation Documents to the
extent necessary to permit such transaction.


 


2.7           Release
of Collateral Upon Release Event. 
The Junior Secured Creditor shall, at any time in connection with a
Release Event with respect to any Collateral that, as to such Junior Secured
Creditor, is Non-Priority Collateral:  (a) upon
the request of the Priority Secured Creditor with respect to such Collateral
subject to such Release Event (which request 


 


29

















 


will specify the principal proposed terms of the sale and the
type and amount of consideration expected to be received in connection
therewith), release or otherwise terminate its Liens on such Collateral (provided
that such Lien shall continue as to Proceeds thereof), to the extent the
Disposition of such Collateral is either by (i) the Priority Secured
Creditor or its agents or representatives or (ii) any Obligor with the
consent of the Priority Secured Creditor, (b) be deemed to have consented
under the applicable Obligation Documents to such Disposition free and clear of
the Junior Secured Creditor’s Liens (it being understood that the Junior
Secured Creditor shall still, subject to the terms of this Agreement, have a security
interest with respect to the Proceeds of such Collateral) and to have waived
the provisions of the applicable Obligation Documents to the extent necessary
to permit such transaction and (c) deliver such Release Documents and take such
further actions as Priority Secured Creditor may reasonably require in
connection therewith; provided that such release by the Junior Secured
Creditor shall not extend to, or otherwise affect any of the rights of the
Junior Secured Creditor to, the Proceeds from any such Disposition of such
Collateral subject to the provisions hereof.


 


2.8           Power
of Attorney.  As to any Collateral
that, as to any Junior Secured Creditor, is Non-Priority Collateral, such
Junior Secured Creditor hereby irrevocably constitutes and appoints the
Priority Secured Creditor as to such Collateral and any officer of such
Priority Secured Creditor, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of the Junior Secured Creditor and in the name of the Junior Secured
Creditor or in such Priority Secured Creditor own name, from time to time in
such Priority Secured Creditor discretion, for the purpose of carrying out the
terms of Sections 2.6 and 2.7 hereof, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of such Sections,
including any Release Documents, and, in addition, to take any and all other
appropriate and commercially reasonable action for the purpose of carrying out
the terms of such Sections, all subject to the limitations set forth therein,
such power of attorney being coupled with an interest and irrevocable until the
Term Loan Termination Date, if the Junior Secured Creditor is the Revolving
Agent, or the Revolving Credit Termination Date, if the Junior Secured Creditor
is the Term Loan Agent.  The Junior
Secured Creditor hereby ratifies all that said attorneys shall lawfully do or
cause to be done pursuant to the power of attorney granted in this Section 2.8
if done in accordance with the provisions hereof.  No Person to whom this power of attorney is
presented, as authority for the Priority Secured Creditor to take any action or
actions contemplated hereby, shall be required to inquire into or seek
confirmation from any Junior Secured Creditor as to the authority of the
Priority Secured Creditor to take any action described herein, or as to the
existence of or fulfillment of any condition to this power of attorney, which
is intended to grant to the Priority Secured Creditor the authority to take and
perform the actions contemplated herein. 
The Junior Secured Creditor irrevocably waives any right to commence any
suit or action, in law or equity, against any Person that acts in reliance upon
or acknowledges the authority granted under this power of attorney.


 


2.9           Waiver.  Each Secured Creditor (a) subject to the
requirement that the Company shall be required to designate by written notice
to the Term Loan Agent any Revolving Credit Agreement for purposes hereof, as
contemplated hereby, waives any and all notice from any Secured Creditor of the
creation, renewal, extension or accrual of any of the Obligations under the
Obligation Documents and notice of or proof of reliance by the Secured
Creditors upon this Agreement and protest, demand for payment or notice except
to the extent otherwise 


 


30

















 


specified herein and (b) acknowledges and agrees that
the other Secured Creditors have relied upon the Lien priority and other
provisions hereof in entering into the Obligation Documents and in making funds
available to the Company, subject to the provisions hereof.


 


2.10         Notice
of Interest In Collateral.  This
Agreement, and the execution and delivery by any party hereto to the other
parties hereto, is intended, in part, to constitute an authenticated
notification of a claim by each Secured Creditor to the other Secured Creditors
of an interest in the Collateral in accordance with the provisions of Sections
9-611 and 9-621 of the UCC.


 


Section 3.                                            Enforcement
of Security.


 


3.1           No
Duties of Priority Secured Creditor. 
Each Junior Secured Creditor acknowledges and agrees that the Priority
Secured Creditor shall not have any duties or other obligations to such Junior
Secured Creditor with respect to any Priority Collateral, other than to
transfer to such Junior Secured Creditor (other than any Existing Notes
Creditor, until such time as all Revolving Credit Obligations and all Term Loan
Obligations shall have been Paid in Full) any remaining Collateral that
constitutes Non-Priority Collateral and any Proceeds of the sale or other
disposition of any such Collateral that constitutes Non-Priority Collateral
remaining in its possession following the Payment in Full of the associated
Priority Obligations, or in the case of the Existing Notes Creditors as Junior
Secured Creditors, all Priority Obligations, in each case without
representation or warranty on the part of the Priority Secured Creditor.  In furtherance of the foregoing, each Junior
Secured Creditor acknowledges and agrees that until the Payment in Full of the
associated Priority Obligations secured by any Collateral on which such Junior
Secured Creditor holds a Lien, the Priority Secured Creditor shall be entitled,
for the benefit of the holders of such Priority Obligations, to sell, transfer
or otherwise dispose of or deal with such Collateral, as provided in the
Priority Documents but in no event inconsistent with the other provisions of
this Agreement, without regard to any junior Lien or any rights to which the
holders of the Junior Obligations would otherwise be entitled as a result of
such Lien, except as otherwise provided herein. 
Without limiting the foregoing, each Junior Secured Creditor agrees that
the Priority Secured Creditor shall not have any duty or obligation first to
sell, dispose of or otherwise liquidate all or any portion of such Priority
Collateral (or any other collateral securing the Priority Obligations), in any
manner that would maximize the return to such Junior Secured Creditor,
notwithstanding that the order and timing of any such realization, sale,
disposition or liquidation may affect the amount of proceeds actually received
by such Junior Secured Creditor from such realization, sale, disposition or
liquidation.  Following the Payment in
Full of the associated Priority Obligations, or in the case of the Existing
Notes Creditors as Junior Secured Creditor, all Priority Obligations, the
Junior Secured Creditor may, subject to any other agreements binding on such
Junior Secured Creditor, assert their rights under the New York UCC or
otherwise to any Proceeds remaining following a sale, disposition or other
liquidation of Collateral by, or on behalf of, the Priority Secured Creditor or
the Junior Secured Creditor.  Each Junior
Secured Creditor waives any claim such Junior Secured Creditor may now or
hereafter have against the Priority Secured Creditor arising out of any actions
that the Priority Secured Creditor takes or omits to take (including actions
with respect to the creation, perfection or continuation of Liens on any
Collateral, actions with respect to the foreclosure upon, sale, release or
depreciation of, or failure to realize upon, any of the Collateral, and actions
with respect to the collection of any claim for all or any part of the Priority
Obligations from any account debtor, 


 


31

















 


guarantor or any other party) in accordance with this Agreement
and the Priority Documents, or arising out of the collection of the Priority
Obligations or the valuation, use, protection or release of any security for
the Priority Obligations if effected in accordance with this Agreement and the
Priority Documents.


 


3.2           Management
of Collateral.  Subject to the other
terms and conditions of this Agreement, each Priority Secured Creditor shall
have the exclusive right to manage, perform and enforce the terms of the
applicable Obligation Documents with respect to its Priority Collateral, to
exercise and enforce all privileges and rights thereunder according to its sole
discretion and the exercise of its sole business judgment, including the
exclusive right to take or retake control or possession of such Priority Collateral
and to hold, prepare for sale, process, Dispose of, or liquidate such Priority
Collateral and to incur expenses in connection with such Disposition and to
exercise all the rights and remedies of a secured lender under the UCC of any
applicable jurisdiction.  In conducting
any public or private sale under the UCC of its Priority Collateral, the
Priority Secured Creditor shall give the Junior Secured Creditor such notice (a
“UCC Notice”) of such sale as may be
required by the applicable UCC; provided, however, that 10 days’
notice shall be deemed to be commercially reasonable notice.  Except as specifically provided in this Section 3.2
or Section 3.4 below, notwithstanding any rights or remedies
available to a Junior Secured Creditor under any of the applicable Obligation
Documents, applicable law or otherwise, no Junior Secured Creditor shall,
directly or indirectly, take any Enforcement Action with respect to Collateral
that, as to such Junior Secured Creditor, is Non-Priority Collateral; provided
that, subject at all times to the provisions of Section 2,
upon the expiration of the applicable Standstill Period, a Junior Secured
Creditor (other than any Existing Notes Creditor) may take any Enforcement
Action as to such Collateral (provided that it gives the Priority
Secured Creditor at least 10 Business Days written notice prior to taking such
Enforcement Action); provided, further, that notwithstanding the
expiration of the Standstill Period or anything herein to the contrary, in no
event shall any Junior Secured Creditor take any Enforcement Action or exercise
or continue to exercise any such rights or remedies, or commence or petition
for any such action or proceeding (including any foreclosure action or
proceeding or any Insolvency Proceeding) as to its Non-Priority Collateral if
either (i) an Insolvency Proceeding occurs and is continuing or (ii) the
Priority Secured Creditor shall have commenced the enforcement or exercise of
any rights or remedies with respect to more than a de minimis portion of such
Non-Priority Collateral, or with respect to any of such Non-Priority Collateral
as to which the Junior Secured Creditor has commenced an Enforcement Action, as
applicable, or commenced any such action or proceeding (including, without
limitation, any of the following (if undertaken and pursued to consummate a
Disposition of such Collateral within a commercially reasonable time): the
solicitation of bids from third parties to conduct the liquidation of all or
any material portion of such Collateral, the engagement or retention of sales
brokers, marketing agents, investment bankers, accountants, auctioneers or
other third parties for the purpose of valuing, marketing, promoting or selling
all or any material portion of such Collateral, the notification of account
debtors to make payments to the Priority Secured Creditor or its agents, the
initiation of any action to take possession of all or any material portion of
such Collateral or the commencement of any legal proceedings or actions against
or with respect to the foreclosure and sale of all or any material portion of
such Collateral), or the diligent attempt in good faith to vacate any stay
prohibiting an Enforcement Action with respect to all or any material portion
of such Collateral or diligently attempting in good faith to vacate any stay
prohibiting an Enforcement Action.


 


32
















 


3.3                                 Notices of
Default.  Each Secured Creditor shall
give to the other Secured Creditors prior to or substantially concurrently with
the giving thereof to any Obligor (a) a copy of any written notice by any
Secured Creditor of an Event of Default under any of its Obligation Documents
or a written notice of demand for payment from any Obligor and (b) a copy
of any written notice sent by such Secured Creditor to any Obligor stating such
Secured Creditor’s intention to exercise any material enforcement rights or
remedies against such Obligor, including written notice pertaining to any
foreclosure on all or any material part of its Priority Collateral or other
judicial or non-judicial remedy in respect thereof, and any legal process
served or filed in connection therewith; provided that the failure of
any Secured Creditor to give such required notice shall not result in any
liability to such Secured Creditor or affect the enforceability of any
provision of this Agreement, including the relative priorities of the Liens of
the Secured Creditors as provided herein, and shall not affect the validity or
effectiveness of any such notice as against the Company or any other Obligor; provided,
further, that the foregoing shall not in any way impair any claims that
any Secured Creditor may have against any other Secured Creditor as a result of
any failure of any Secured Creditor to provide a UCC Notice in accordance with
the provisions of this Agreement and applicable law (including without
limitation any liability that any Secured Creditor may have to any other
Secured Creditor as a result of any such failure).


 


3.4                                 Permitted Actions; Restricted Prepayments.  Section 3.2
shall not be construed to limit or impair in any way the right of:  (i) any Secured Creditor (other than any
Existing Notes Creditor) to bid for or purchase Collateral at any private or
judicial foreclosure upon such Collateral initiated by any Secured Creditor, (ii) any
Secured Creditor to join (but not control) any foreclosure or other judicial
lien enforcement proceeding with respect to the Collateral initiated by another
Secured Creditor for the sole purpose of protecting such Secured Creditor’s
Lien on the Collateral, so long as it does not delay or interfere with the
exercise by such other Secured Creditor of its rights under this Agreement, the
Obligation Documents and under applicable law and (iii) the Junior Secured
Creditor to exercise any rights expressly granted to them under this Agreement,
subject to the provisions hereof, and to receive any remaining proceeds of
Collateral that as to such Junior Secured Creditor is Non-Priority Collateral
after the Priority Obligations have been Paid in Full.  No Existing Notes Creditor shall exercise any
right to credit bid its Existing Notes Obligations, or claims in respect
thereof, at any private or judicial foreclosure upon such Collateral initiated
by any Secured Creditor.


 


3.5                                 Collateral In Possession.


 


(a)                                  Each of the Revolving Agent and the Term Loan Agent and the
Existing Notes Agent hereby acknowledges that, to the extent that it holds, or
a third party holds on its behalf, physical possession of or has “control” (as
defined in the UCC) over Collateral for purposes of perfecting its Lien
therein, such possession or control is also for the benefit of, and the
Revolving Agent and the Term Loan Agent, or such third party on its behalf, as
applicable, will be deemed to be holding such Collateral as agent for, the Term
Loan Agent and the other Term Loan Creditors or the Revolving Agent and the
other Revolving Creditors and the Existing Notes Agent and the other Existing
Notes Creditors, as applicable, as agent and bailee for perfection, solely to
the extent required to perfect their security interests in such
Collateral.  Nothing in the preceding
sentence shall be construed to impose any duty on the Revolving Agent or the
Term Loan Agent or Existing Notes Agent (or any third party acting on either
such


 


33

















 


Person’s
behalf) with respect to such Collateral or provide the Term Loan Agent, any
other Term Loan Creditor, the Revolving Agent or any other Revolving Creditor,
or the Existing Notes Agent or any other Existing Notes Creditor, as
applicable, with any rights with respect to such Collateral beyond those specified
in this Agreement, the Revolving Credit Documents and the Term Loan Credit
Documents and the Existing Notes Documents, as applicable.  Promptly following the Term Loan Termination
Date or Revolving Credit Termination Date, as the case may be, the Term Loan
Agent or the Revolving Agent, as the case may be, shall, upon the request of
the Revolving Agent or the Term Loan Agent, as the case may be, deliver, or
cause any third party holding such Collateral on its behalf to deliver, the
remainder of the Collateral, if any, in its possession to the designee of the
requesting Secured Creditor (except as may otherwise be required by applicable
law or court order).  Promptly following
the later of the Term Loan Termination Date and the Revolving Credit Termination
Date, the Term Loan Agent or the Revolving Agent, as the case may be, shall,
upon the request of the Existing Notes Agent, deliver, or cause any third party
holding such Collateral on its behalf to deliver, the remainder of the
Collateral, if any, in its possession to the designee of the Existing Notes
Creditor (except as may otherwise be required by applicable law or court
order).


 


(b)                                 It is understood and agreed that this Section 3.5
is intended solely to assure continuous perfection of the Liens granted under
the applicable Obligation Documents, and nothing in this Section 3.5
shall be deemed or construed as altering the priorities or obligations set
forth elsewhere in this Agreement.  The
duties of each party under this Section 3.5 shall be mechanical and
administrative in nature, and no party shall have, or be deemed to have, by
reason of this Agreement or otherwise a fiduciary relationship in respect of
the other party.


 


3.6                                 Waiver of Marshalling and Similar Rights.  Each Secured
Creditor, to the fullest extent permitted by applicable law, waives as to each
other Secured Creditor any requirement regarding, and agrees not to demand,
request, plead or otherwise claim the benefit of, any marshalling,
appraisement, valuation or other similar right that may otherwise be available
under applicable law.


 


3.7                                 Insurance and Condemnation Awards.  So long as the Term
Loan Termination Date has not occurred, the Term Loan Agent, and so long as the
Revolving Credit Termination Date has not occurred, the Revolving Agent, shall
have the exclusive right, subject to the rights of the Company under the
applicable Obligation Documents, to settle and adjust claims in respect of its
Priority Collateral under policies of insurance and to approve any award
granted in any condemnation or similar proceeding, or any deed in lieu of
condemnation, in respect of its Priority Collateral.  After the occurrence of the Term Loan
Termination Date, the Revolving Agent, and after the occurrence of the
Revolving Credit Termination Date, the Term Loan Agent, shall have the
exclusive right, subject to the rights of the Company under the applicable
Obligation Documents, to settle and adjust claims in respect of its
Non-Priority Collateral under policies of insurance and to approve any award granted
in condemnation or similar proceeding, or any deed in lieu of condemnation, in
respect of its Non-Priority Collateral. 
Prior the later of the Term Loan Termination Date and the Revolving
Credit Termination Date, the Existing Loan Creditors shall have no right to
settle or adjust claims in respect of its Non-Priority Collateral under
policies of insurance or to approve any award granted in condemnation


 


34

















 


or similar
proceeding, or any deed in lieu of condemnation, in respect of its Non-Priority
Collateral.


 


3.8                                 Application of Proceeds of Priority Collateral.  (a) 
Notwithstanding the Lien priorities established pursuant hereto as between the
Revolving Creditors and the Term Loan Creditors, the parties hereto agree that
the Proceeds of Term Loan Priority Collateral shall be distributed to
satisfaction of the Term Loan Obligations and the Revolving Credit Obligations
until Paid in Full, according to the priority of application set forth below:


 


(i)                                     FIRST, to the fees and expenses of, and reimbursements and
indemnification owed to, the Term Loan Agent under this Agreement and under the
Term Loan Credit Documents to which it is a party that are unpaid as of the
applicable date of receipt of such Proceeds, and to any Secured Creditor that
has theretofore advanced or paid any such fees and expenses of, and
reimbursements and indemnification owed to, the Term Loan Agent in respect of
the Term Loan Priority Collateral, in an amount equal to the amount thereof so
advanced or paid by such Secured Creditor,


 


(ii)                                  SECOND, to the pro rata
payment of the then unpaid Term Loan Obligations and Revolving Credit
Obligations (pro rata based on the aggregate
outstanding amount thereof as of the date of payment after giving pro forma
effect to any substantially simultaneous application of Proceeds of Revolving
Credit Priority Collateral to satisfaction of the Revolving Credit
Obligations), until Paid in Full,


 


(iii)                               THIRD, to the payment of the Existing Notes Obligations then
due and owing, and


 


(iv)                              FOURTH, to the Company and the other Obligors or their
successors or assigns, as their interests may appear, or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.


 


(b) 
In accordance with the Lien priorities established pursuant hereto as between
the Revolving Creditors, the Term Loan Creditors and the Existing Notes
Creditors, the parties hereto agree that the Proceeds of Revolving Credit
Priority Collateral shall be distributed to satisfaction of the Revolving
Credit Obligations, the Term Loan Obligations and the Existing Notes
Obligations until Paid in Full, according to the priority of application set
forth below:


 


(i)                                     FIRST, to the fees and expenses of, and reimbursements and
indemnification owed to, the Revolving Agent under this Agreement and under the
Revolving Credit Documents to which it is a party that are unpaid as of the
applicable date of receipt of such Proceeds, and to any Secured Creditor that
has theretofore advanced or paid any such fees and expenses of, and
reimbursements and indemnification owed to, the Revolving Agent in respect of
the Revolving Credit Priority Collateral, in an amount equal to the amount
thereof so advanced or paid by such Secured Creditor,


 


(ii)                                  SECOND, to the payment of the then unpaid Revolving Credit
Obligations (after giving pro forma effect to any substantially simultaneous
application of Proceeds of Term Loan Priority Collateral to satisfaction of the
Revolving Credit Obligations), until Paid in Full,


 


35

















 


(iii)                               THIRD, to the payment of the then unpaid Term Loan
Obligations, until Paid in Full,


 


(iv)                              FOURTH, to the payment of the Existing Notes Obligations then
due and owing, and


 


(v)                                 FIFTH, to the Company and the other Obligors or their
successors or assigns, as their interests may appear, or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.


 


Section 4.                                            Covenants


 


4.1                                 Amendment of Term Loan Credit Documents.  The Term Loan
Creditors may at any time and from time to time and without consent of or
notice to the Revolving Agent or any other Revolving Creditor or the Existing
Notes Agent or any other Existing Notes Creditor, without incurring any
liability to the Revolving Agent or any other Revolving Creditor or the
Existing Notes Agent or any other Existing Notes Creditor, and without
impairing or releasing any rights or obligations hereunder or otherwise, amend,
restate, supplement, modify, substitute, Refinance, renew or replace any or all
of the Term Loan Credit Documents; provided, however, that Term
Loan Creditors agree, solely for the benefit of the Revolving Agent and the
other Revolving Creditors and not for the benefit of the Existing Notes
Creditors, that they shall not amend, restate, supplement, modify, substitute,
Refinance, renew or replace any or all of the Term Loan Credit Documents in any
manner that would violate the Term Loan Refinancing Conditions and shall not
impose any mandatory prepayments not in existence in the Term Loan Credit
Documents as in effect on the date hereof.


 


4.2                                 Amendments to Revolving Credit Documents.  The Revolving
Creditors may at any time and from time to time and without consent of or
notice to any Term Loan Creditor, without incurring any liability to the Term
Loan Agent or any other Term Loan Creditor and without impairing or releasing
any rights or obligations hereunder or otherwise, amend, restate, supplement,
modify, substitute, Refinance, renew or replace any or all of the Revolving
Credit Documents; provided, however, that the Revolving Creditors
agree, solely for the benefit of the Term Loan Agent and the other Term Loan
Creditors and not for the benefit of the Existing Notes Creditors, that they
shall not amend, restate, supplement, modify, substitute, Refinance, renew or
replace any or all of the Revolving Credit Documents in any manner that would
violate the Revolving Credit Refinancing Conditions.


 


4.3                                 Amendments to Existing Notes Documents.  The Existing Notes
Creditors may at any time and from time to time and without consent of or
notice to any Term Loan Creditor or Revolving Creditor, without incurring any
liability to the Term Loan Agent or any other Term Loan Creditor or the Revolving
Agent or any other Revolving Creditor and without impairing or releasing any
rights or obligations hereunder or otherwise, amend, restate, supplement,
modify, substitute, Refinance, renew or replace any or all of the Existing
Notes Documents; provided, however, that Existing Notes Creditors
shall not amend, restate, supplement, modify, substitute, Refinance, renew or
replace any or all of the Existing Notes Documents in any manner that would
violate the Existing Notes Refinancing Conditions.


 


36

















 


4.4                                 Enforcement Actions by Junior Secured Creditors.  Each Junior Secured
Creditor shall give the Priority Secured Creditor at least 10 Business Days’
written notice prior to taking any Enforcement Action as to any Collateral
that, as to such Junior Secured Creditor, is Non-Priority Collateral, which
notice may be given during the pendency of any Standstill Period.  Notwithstanding the foregoing, the Existing
Notes Creditors shall not take any Enforcement Action as to any Collateral
prior to Payment in Full of all Revolving Credit Obligations and all Term Loan
Obligations.


 


4.5                                 Legend; Authority.  Term Loan Agent and Revolving Agent and
Existing Notes Agent agree to cause Term Loan
Credit Agreement, the Revolving Credit Agreement and the Existing Notes
Indenture, respectively, and each
related mortgage and each other security document, to contain the following
legend:


 


“THIS
[AGREEMENT][INDENTURE] AND THE RIGHTS OF THE PARTIES HEREUNDER ARE SUBJECT TO
THE PROVISIONS OF THE OMNIBUS INTERCREDITOR AGREEMENT DATED AS OF [                                    ],
20[    ], BETWEEN [                      ]
AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE [COMPANY AND
THE GUARANTORS][COMPANY AND THE OTHER [GRANTORS][OBLIGORS]], AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.”


 


Notwithstanding
the foregoing, if the jurisdiction in which any of the foregoing documents will
be filed prohibits the inclusion of any language above or would prevent a
document containing any such language from being recorded, the parties hereto,
agree, prior to such document being entered into, to negotiate in good faith
replacement language stating that the Liens granted under such document are
subject to the provisions of this Agreement.


 


Term Loan
Agent and Revolving Agent and Existing Notes Agent agree to cause the Term Loan
Credit Agreement, the Revolving Credit Agreement and the Existing Notes
Indenture, respectively, to contain the following provision:


 


“The
[Lenders][Holders][other applicable term], [by their acceptance of the
[Notes]][by their execution and delivery hereof], hereby irrevocably authorize
and direct the [Agent][Trustee][other applicable term] to enter into the
Omnibus Intercreditor Agreement [as defined herein] on behalf of the
[Agent][Trustee][other applicable term] and the [Lenders][Holders][other
applicable term], and agree to be bound by the provisions thereof as if they
were direct signatories thereof, and to take all actions required to be taken
by them in accordance with the provisions thereof, and to otherwise comply
therewith, and irrevocably authorize and direct the [Agent][Trustee][other
applicable term] to take all actions on its or the [Lenders’][Holders’][other
applicable term] behalf as are necessary to comply with the provisions thereof.  The rights
and remedies of the [Agent][Trustee][other applicable term], on behalf of the
[Lenders][Holders][other applicable term], under this [Agreement][Indenture]
shall be subject to the Omnibus Intercreditor Agreement as in effect from time
to time.  In the event of any conflict
between the terms of the Omnibus Intercreditor Agreement and this
[Agreement][Indenture], the terms of the Omnibus Intercreditor Agreement shall govern
and control.”


 


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Section 5.                                            Purchase
Options


 


5.1                                 Term Loan Agent Purchase Option.


 


(a)                                  Purchase Notice.  The Term Loan Creditors, acting through the
Term Loan Agent as a single group, shall have the option to purchase from the
Revolving Agent all but not less than all of the Revolving Credit Obligations
at any time following the (i) acceleration of the Revolving Credit
Obligations or termination of the commitment thereunder, (ii) the first
commencement of an Enforcement Action by Revolving Agent with respect to a
material portion of the Revolving Credit Priority Collateral or (iii) the
commencement of any Insolvency Proceeding. 
The Revolving Agent shall promptly deliver to the Term Loan Agent notice
of the first to occur of the events described in clauses (i), (ii) or (iii) of
this paragraph (a).  The Term Loan Agent
(on behalf of the exercising Term Loan Creditors (the “Revolving
Credit Obligations Purchaser”)) shall exercise this option by giving
written notice (the “Term Loan  Agent’s Purchase Notice”) of its election to the Revolving
Agent within ten (10) Business Days following the delivery to the Term
Loan Agent of such notice.  The Term Loan
Agent’s Purchase Notice, once delivered, shall be irrevocable and shall not be
subject to withdrawal or rescission.


 


(b)                                 Purchase Option Closing.  On the date specified by Term Loan Agent in
the Term Loan Agent’s Purchase Notice (which shall not be less than 3 Business
Days nor more than 15 Business Days after delivery to the Revolving Agent of
the Term Loan Agent’s Purchase Notice) (the “Revolver
Purchase Option Closing Date”),
Revolving Creditors shall sell to Revolving Credit Obligations Purchaser and
the Revolving Credit Obligations Purchaser shall purchase from Revolving
Creditors the Revolving Credit Obligations, without recourse, representation or
warranty  (except as set forth in Section 5.1(e) below).


 


(c)                                  Purchase Price.  Such purchase and sale shall be made by
execution and delivery by the applicable parties of an assignment agreement in
form and substance reasonably satisfactory to all such parties.  On the Revolving Purchase Option Closing
Date, the Revolving Credit Obligations Purchaser  shall
(i) pay to the Revolving Agent as the purchase price an amount equal to
100% of the Revolving Credit Obligations outstanding on the date of payment to
Revolving Agent (including, without limitation, all unpaid interest, fees and
any other charges accruing after the commencement of a bankruptcy, insolvency
or liquidation proceeding, to the extent such amounts are allowed or are
recoverable pursuant to Section 506 of the Bankruptcy Code or otherwise)
other than Revolving Credit Obligations cash collateralized in accordance with clause
(ii) below, then outstanding and unpaid, (ii) furnish cash
collateral to Revolving Agent in such amounts as Revolving Agent determines is
reasonably necessary to secure Revolving Agent in connection with any issued
and outstanding Letters of Credit constituting Revolving Credit Obligations
(but not in any event in an amount greater than 105% of the aggregate undrawn
amount of such Letters of Credit) and any costs, expenses and indemnification
obligations not yet due and payable but with respect to which a claim has been
threatened or asserted in writing under any Obligation Document, (iii) agree
to reimburse Revolving Creditors for any loss, cost, damage or expense
(including reasonable attorneys’ fees and legal expenses) in connection with
any commissions, fees, costs or expenses related to any issued and outstanding
letters of credit and any checks or other payments provisionally credited to
the Revolving Credit Obligations, and/or as to which Revolving Creditors have
not yet received final payment and (iv) assume any then existing loan commitment
thereunder. The


 


38

















 


purchase
price shall be remitted by wire transfer or immediately available funds to such
bank account of the Revolving Agent as the Revolving Agent may designate in
writing to Term Loan Agent for such purpose. 
Interest shall be calculated to but excluding the Business Day on which
such purchase and sale shall occur if the amounts so paid by the Revolving
Credit Obligations Purchaser to the bank account designated by the Revolving
Agent are received in such bank account prior to 2:00 p.m. New York
time.  Subject to the provisions of Section 5.1(d),
following the consummation of such purchase, the Revolving Credit Obligations
Purchaser shall be entitled to all rights and benefits under the Revolving
Credit Documents to which the Revolving Creditors were entitled immediately
prior to consummation of such purchase, including the right to receive fee
income, expense reimbursement and indemnification.  All cash collateral and other amounts
delivered or paid pursuant to clause (ii) of the preceding sentence in
excess of amounts finally determined to be necessary to satisfy all
reimbursements, costs, expenses and indemnification obligations owing in
respect of items referred to in such clause (ii) shall be repaid to the
Revolving Credit Obligations Purchaser for distribution pro rata to the Persons
who paid such amounts to the Revolving Agent pursuant to such clause (ii).


 


(d)                                 Survival of Indemnification Rights; Excess Revolving Credit
Obligations.  Notwithstanding the foregoing provisions of
this Section 5.1, (i) no sale of the Revolving Credit
Obligations shall terminate or impair any Obligor’s obligations to indemnify
the Revolving Creditors pursuant to the Revolving Credit Documents, all of
which indemnity obligations shall survive any such sale or assignment as an
unsecured obligation of such Obligor; (ii) as between any Obligor and the
Revolving Creditors, no such indemnification obligations shall be amended or
modified without the Revolving Agent’s prior written consent; and (iii) Revolving
Creditors shall retain all rights under the Revolving Credit Documents with
respect to Excess Revolving Credit Obligations, but shall have no right to
exercise any such rights until all Revolving Credit Obligations and Term Loan
Obligations have been Paid in Full, unless the Term Loan Agent shall otherwise
agree and any such exercise must otherwise comply with the terms of this
Agreement.


 


(e)                                  Representations and Warranties.  Such purchase and sale shall be expressly
made with the following representations and warranties by the Revolving
Creditors:  (i)  the amount of the
Revolving Credit Obligations being purchased (including the principal of and
accrued and unpaid interest on and fees, including breakage fees and other
charges in connection with, such Revolving Credit Obligations), and the extent
of any existing loan commitment thereunder, (ii) that the Revolving
Creditors own the Revolving Credit Obligations being purchased free and clear
of any liens granted by the Revolving Creditors or Revolving Agent, and (iii) the
Revolving Creditors have the full right and power to assign the Revolving
Credit Obligations being purchased and such assignment has been duly authorized
by all necessary action by Revolving Agent.


 


(f)                                    Early Termination Fee.  If any early termination fee, prepayment
premium, yield maintenance or similar fee is provided for under the Revolving
Credit Documents at the time of the purchase and sale under this Section 5.1
but is not yet due and payable under the Revolving Credit Documents and
otherwise due as part of the purchase price under Section 5.1(c),
Term Loan Creditors agree not to modify or reduce such fee and, if such fee
becomes due and payable within 90 days after such purchase and sale, Term Loan
Creditors


 


39

















 


shall remit
such fee to Revolving Agent as and when such fee is paid by Company or such
other Obligors.


 


5.2                                 Revolving Agent Purchase Option


 


(a)                                  Purchase Notice.  Revolving Creditors shall have the option to
purchase from the Term Loan Creditors all but not less than all of the Term
Loan Obligations at any time following (i) Term Loan Agent or Term Loan
Creditors have accelerated the maturity of all or a material portion of the
Term Loan Obligations, (ii) the commencement of an Enforcement Action by
Term Loan Agent with respect to a material portion of the Term Loan Priority
Collateral, (iii) the commencement of any Insolvency Proceeding, or (iv) the
extension of the final maturity date of the Term Loan Obligations.  The Term Loan Agent shall promptly deliver to
the Revolving Agent notice of the first to occur of the events described in
clauses (i), (ii), (iii) or (iv) of this paragraph (a). Revolving
Agent (on behalf of the exercising Revolving Creditors (the “Term  Obligations Purchaser”))
shall exercise this option by giving written notice (the “Revolving
Agent’s  Purchase Notice”)
of its election to Term Loan Agent within ten (10) Business Days following
the delivery of such notice.  The
Revolving Agent’s Purchase Notice, once delivered, shall be irrevocable and
shall not be subject to withdrawal or rescission.


 


(b)                                 Purchase Option Closing.  On the date specified by Revolving Agent in
the Purchase Notice (which shall not be less than 3 Business Days nor more than
15 Business Days after delivery to the Term Loan Agent of the Revolving Agent’s
Purchase Notice) (the “Term Loan Purchase Option
Closing Date”), Term Loan Creditors shall sell to the Term
Obligations Purchaser, and Term Obligations Purchaser shall purchase from Term
Loan Creditors the Term Loan Obligations, without recourse, representation or
warranty  (except as set forth in Section 5.2(e) below).


 


(c)                                  Purchase Price.  Such purchase and sale shall be made by
execution and delivery by the applicable parties of an assignment agreement in
form and substance reasonably satisfactory to all such parties.  On the Term Loan Purchase Option Closing
Date, the Term Obligations Purchaser shall (i) pay to the Term Loan Agent,
for the benefit of the Term Loan Creditors, as the purchase price an amount
equal to 100% of the Term Loan Obligations outstanding on the date of payment
to Term Loan Agent (including, without limitation, all unpaid interest, fees
and any other charges accruing after the commencement of a bankruptcy,
insolvency or liquidation proceeding, to the extent such amounts are allowed or
are recoverable pursuant to Section 506 of the Bankruptcy Code or
otherwise) other than Term Loan Obligations cash collateralized in accordance
with clause (ii) below, then outstanding and unpaid and (ii) furnish
cash collateral to Term Loan Agent in such amounts as Term Loan Agent
determines is reasonably necessary to secure Term Loan Agent in connection with
any Term Loan Hedging Obligation and any costs, expenses and indemnification
obligations not yet due and payable but with respect to which a claim has been
threatened or asserted in writing under any Obligation Document. The purchase
price shall be remitted by wire transfer or immediately available funds to such
bank account of the Term Loan Agent, for the benefit of the Term Loan
Creditors, as Term Loan Agent may designate in writing to Revolving Agent for
such purpose.  Interest shall be calculated
to but excluding the Business Day on which such purchase and sale shall occur
if the amounts so paid by the Term Obligations Purchaser to the bank account
designated by Term Loan Agent are received in such bank account prior to 2:00 p.m.
New York time.  Subject to the


 


40

















 


provisions
of Section 5.2(d), following the consummation of such purchase, the
Term Obligations Purchaser shall be entitled to all rights and benefits under
the Term Loan Credit Documents to which the Term Loan Creditors were entitled
immediately prior to consummation of such purchase, including the right to
receive fee income, expense reimbursement and indemnification.  All cash collateral and other amounts
delivered or paid pursuant to clause (ii) of the preceding sentence in
excess of amounts finally determined to be necessary to satisfy all
reimbursements, costs, expenses and indemnification obligations owing in
respect of items referred to in such clause (ii) shall be repaid to the
Term Obligations Purchaser for distribution pro rata to the Persons who paid
such amounts to the Term Loan Agent pursuant to such clause (ii).


 


(d)                                 Survival of Indemnification Rights; Excess Term Loan
Obligations.  Notwithstanding the foregoing provisions of
this Section 5.2, (i) no sale of the Term Loan Obligations
shall terminate or impair any Obligor’s obligations to indemnify the Term Loan
Creditors pursuant to the Term Loan Credit Documents, all of which indemnity
obligations shall survive any such sale or assignment as an unsecured
obligation of such Obligor; (ii) as between any Obligor and the Term Loan
Creditors, no such indemnification obligations shall be amended or modified
without Term Loan Creditors prior written consent; and
(iii) Term Loan Creditors shall retain all rights under the Term Loan
Credit Documents with respect to Excess Term Obligations but shall have no
right to exercise any such rights until all Term Loan Obligations and Revolving
Credit Obligations have been Paid in Full, unless Revolving Agent shall
otherwise agree, and any such exercise must otherwise comply with the terms of
this Agreement.


 


(e)                                  Representations and Warranties.  Such purchase and sale shall be made without
representation or warranty of any kind by Term Loan Creditors and without
recourse to Revolving Agent, except for the following representations and
warranties by the Term Loan Creditors:  (i) 
the amount of the Term Loan Obligations being purchased (including the
principal of and accrued and unpaid interest on and fees, including other
charges in connection with, such Term Loan Obligations), and the extent of any
existing loan commitment thereunder, (ii) that the Term Loan Creditors own
the Term Loan Obligations being purchased free and clear of any liens granted
by the Term Loan Creditors or Term Loan Agent, and (iii) each of the Term
Loan Creditors has the full right and power to assign the Term Loan Obligations
being purchased and such assignment has been duly authorized by all necessary
action by the Term Loan Creditors.


 


(f)                                    Early Termination Fee.  If any early termination fee, prepayment
premium, yield maintenance or similar fee is provided for under the Term Loan
Credit Documents at the time of the purchase and sale under this Section 5.2
but is not yet due and payable under the Term Loan Credit Documents and
otherwise due as part of the purchase price under Section 5.2(c),
the Revolving Creditors agree not to modify or reduce such fee and, if such fee
becomes due and payable within 90 days after such purchase and sale, Revolving
Creditors shall remit such fee to the Term Loan Agent as and when such fee is
paid by Company or such other Obligors.


 


5.3                                 Existing Notes Purchase Option.  Existing
Notes Creditors shall not have any option to purchase from the Term Loan
Creditors or the Revolving Creditors any of the Term Loan Obligations or the
Revolving Credit Obligations, respectively, at any time.


 


41

















 


Section 6.                                            Bankruptcy
Matters.


 


6.1                                 Post Petition Financing; Cash Collateral.


 


(a)                                  If any Obligor or Obligors shall become subject to Insolvency
Proceedings and such Obligor or Obligors as debtor(s)-in-possession (or a
trustee appointed on behalf of such Obligor or Obligors) shall move for
approval of financing (“DIP Financing”)
to be provided by one or more of the Revolving Creditors (or to be provided by
another person or group with the consent of the Revolving Agent) under the
Bankruptcy Code (“Revolving Creditor DIP Financing”) or the use of cash
collateral that is Revolving Credit Priority Collateral (“Revolver
Cash Collateral”) with the consent (or non-objection) of the
Revolving Creditors under the Bankruptcy Code, and the Revolving Agent on
behalf of the Revolving Creditors consents (or does not object) to such use of
Revolver Cash Collateral or Revolving Creditor DIP Financing, then subject to Section 6.2,
the Term Loan Creditors and the Existing Notes Creditors
agree as follows:


 


(i)                                     adequate notice to Term Loan Creditors and the Existing Notes
Creditors for such Revolving Creditor DIP Financing or use of Revolver
Cash Collateral shall be deemed to have been given to the Term Loan Creditors
and the Existing Notes Creditors if the Term Loan Agent and
the Existing Notes Agent, as applicable, receives at least 5 Business Days
notice in advance of the hearing to approve such Revolving Creditor DIP
Financing or Revolver Cash Collateral on an interim basis and at least 15 days
in advance of the hearing to approve such Revolving Creditor DIP Financing or
use of Revolver Cash Collateral on a final basis,


 


(ii)                                  subject to the satisfaction of the conditions in clause
(iii)(A), (B) and (C) below, such Revolving Creditor DIP Financing
(and any Revolving Credit Obligations which arose prior to the Insolvency
Proceeding) may be secured by Liens on all or a part of the Revolving Credit
Priority Collateral which shall be superior in priority to the Liens on the
Revolving Credit Priority Collateral held by any other Person (or pari passu in priority with the Liens of the Revolving
Creditors in the Revolving Credit Priority Collateral securing the Revolving
Credit Obligations and senior to the Liens on the Revolving Credit Priority
Collateral of any other Person), and


 


(iii)                               so long as (A) the aggregate principal amount of loans
and letter of credit obligations outstanding under any such Revolving Creditor
DIP Financing, together with the outstanding principal amount of the
pre-petition Revolving Credit Obligations, does not exceed the Maximum
Revolving Credit Principal Amount plus $3,000,000, (B) the
Term Loan Creditors and the Existing Notes Creditors
retain a Lien on the Revolving Credit Priority Collateral (including proceeds
thereof arising after the commencement of such proceeding) with the same
priority as existed prior to the commencement of the case under the Bankruptcy
Code or similar Bankruptcy Law (junior in priority as to Revolving Credit
Priority Collateral securing such Revolving Creditor DIP Financing and junior
in priority as to Revolving Credit Priority Collateral securing the Revolving
Credit Obligations, including Senior Adequate Protection Liens and junior to
any “carve-out” agreed to by the Revolving Agent or other Revolving Creditors
(and in the case of the Existing Notes Creditors junior in priority as to


 


42

















 


Revolving Credit Priority
Collateral to the Liens thereon securing the Term Loan Obligations)) and (C) the
Term Loan Creditors and the Existing Notes Creditors
receive a replacement Lien on post-petition assets, with the same priority as
existed prior to the commencement of the case under the Bankruptcy Code or
similar Bankruptcy Law (junior in priority to the Liens securing such Revolving
Creditor DIP Financing, to any such “carve-out” and to the existing Liens in
favor of the Revolving Agent on the Revolving Credit Priority Collateral, and
in the case of the Existing Notes Creditors junior in priority to the Liens on
the Revolving Credit Priority Collateral securing the Term Loan Obligations),


 


(1)                                  the Term Loan Creditors and the Existing Notes Creditors will not request or accept adequate protection or any other
relief in connection with the use of such Revolver Cash Collateral or the Liens
on Revolving Credit Priority Collateral securing such Revolving Creditor DIP
Financing except as set forth in Section 6.2 below,


 


(2)                                  the Term Loan Creditors and the Existing Notes Creditors will subordinate (and will be deemed hereunder to have
subordinated) their Liens in their Non-Priority Collateral (X) to the
Liens securing such Revolving Creditor DIP Financing on the same terms (but on
a basis junior to the Liens in Priority Collateral of the Revolving Creditors
and, in the case of the Existing Loan Creditors, to the Liens of the Term Loan
Creditors in such Revolving Credit Priority Collateral) as the Liens of the
Revolving Creditors in their Priority Collateral are subordinated thereto (and,
in the case of the Existing Loan Creditors, to the Liens of the Term Loan
Creditors in such Revolving Credit Priority Collateral) (except that if the
Liens securing such Revolving Creditor DIP Financing are to be pari passu in priority with the Liens of the Revolving
Creditors in the Revolving Credit Priority Collateral securing the Revolving
Credit Obligations, the Term Loan Creditors and the Existing Notes Creditors shall nonetheless subordinate their Liens in such
Non-Priority Collateral to such Liens (and, in the case of the Existing Loan
Creditors, to the Liens of the Term Loan Creditors in such Revolving Credit
Priority Collateral) and such subordination will not alter in any manner the
terms of this Agreement), (Y) to any Senior Adequate Protection Liens or “replacement
Liens” granted to the Revolving Creditors (and, in the case of the Existing
Loan Creditors, to any Senior Adequate Protection Liens or “replacement Liens” granted
to the Term Loan Creditors) as adequate protection of their interests in their
Priority Collateral (or, in the case of the Term Loan Creditors in relation to
the Existing Notes Creditors, as adequate protection of the Term Loan Creditors’
interests in any Collateral), and (Z) to any “carve-out” in an aggregate
amount agreed to by the Revolving Agent or the other Revolving Creditors , provided
that such “carve-out” shall be applied to the Revolving Credit Priority
Collateral, whether such Collateral existed before or after the petition date,
and


 


(3)                                  the Term Loan Creditors and the Existing Notes Creditors (X) shall
not contest or oppose in any manner, any Revolving Creditor DIP Financing, or
any Revolver Cash Collateral use or any adequate protection


 


43
















 


provided to the Revolving Creditors
as adequate protection of their interests in their Priority Collateral, (Y) shall
be deemed to have waived any objections to such adequate protection, Revolving
Creditor DIP Financing or Revolver Cash Collateral use, including, without limitation, any objection alleging Obligors’ failure
to provide “adequate protection” of the interests of the Term Loan Creditors or
the Existing Notes Creditors and (Z) shall be deemed to have consented to
the carve-out and to the subordination of the Liens of the Term Loan Agent and
the Existing Notes Agent in the Revolving Credit Priority Collateral that
secures the Revolving Credit DIP Financing, in each case pursuant to clause (2) above.


 


(b)                                 If any Obligor or Obligors shall become subject to Insolvency
Proceedings and such Obligor or Obligors as debtor(s)-in-possession (or a
trustee appointed on behalf of such Obligor or Obligors) shall move for
approval of DIP Financing to be provided by one or more of the Term Loan Creditors or by a third
party under the Bankruptcy Code (“Term Loan Creditor DIP Financing”) or the
use of cash collateral that is Term
Loan Priority Collateral (“Term Loan Cash Collateral”)
with the consent (or non-objection) of the Term Loan Creditors under the Bankruptcy Code, and the Term Loan
Agent on behalf of the Term Loan Creditors consents (or does not object) to
such use of the Term Loan Cash Collateral or Term Loan Creditor DIP Financing,
then subject to Section 6.2,
the Revolving Creditors and the Existing Notes Creditors agree as follows:


 


(i)                                     adequate notice to Revolving Creditors and the Existing Notes
Creditors for such Term Loan Creditor DIP Financing or use of Term Loan Cash Collateral shall be
deemed to have been given to the Revolving Creditors and the Existing Notes
Creditors if the Revolving Agent and the and the Existing Notes Agent receives
notice at least 5 Business Days in advance of the hearing to approve such Term Loan Creditor DIP Financing or Term Loan Cash Collateral on an
interim basis and at least 15 days in advance of the hearing to approve such Term Loan Creditor DIP Financing or
use of Term Loan Cash Collateral
on a final basis,


 


(ii)                                  subject to the satisfaction of the conditions in clause
(iii)(A), (B) and (C) below, such Term Loan Creditor DIP Financing (and any Term Loan Obligations which arose prior to the Insolvency
Proceeding) may be secured by Liens on all or a part of the Term Loan Priority Collateral which
shall be superior in priority to the Liens on the Term Loan Priority Collateral held by any other Person (or pari passu in priority with the Liens of the Term Loan
Priority Collateral securing the Term Loan Liens and senior to the Liens of any
other Person), and


 


(iii)                               so long as (A) the aggregate principal amount of loans
and letter of credit accommodations outstanding under any such Term Loan Creditor DIP Financing,
together with the outstanding principal amount of the pre-petition Term Loan Obligations, does not exceed
the Maximum Term Loan Principal
Amount plus $20,000,000, (B) the
Revolving Creditors and the Existing Notes Creditors retain a Lien on the Term Loan Priority Collateral
(including proceeds thereof arising after the commencement of such proceeding)
with the same priority as existed prior to the commencement of the case under
the Bankruptcy Code or similar Bankruptcy Law 


 


44

















 


(junior in priority as to Term Loan Priority Collateral securing
such Term Loan Creditor DIP
Financing or Term Loan Obligations,
including Senior Adequate Protection Liens and junior to any “carve-out” agreed
to by the Term Loan Agent or
other Term Loan Creditors (and
in the case of the Existing Notes Creditors junior in priority as to Term Loan
Priority Collateral to the Liens thereon securing the Revolving Credit
Obligations)) and (C) the Revolving Creditors and the Existing Notes Creditors receive a replacement Lien on post-petition assets, with the
same priority as existed prior to the commencement of the case under the
Bankruptcy Code or similar Bankruptcy Law (junior in priority to the Liens
securing such Term Loan Creditor
DIP Financing, to any such “carve-out” and to the existing Liens in favor of
the Term Loan Agent on the Term Loan Priority Collateral (and in
the case of the Existing Notes Creditors junior in priority to the Liens on the
Term Loan Priority Collateral securing the Revolving Credit Obligations)),


 


(1)                                  the Revolving Creditors and the Existing Notes Creditors will not request or accept adequate protection or any other
relief in connection with the use of such Term Loan Cash Collateral or the Liens on Term Loan Priority Collateral securing such Term Loan Creditor DIP Financing
except as set forth in Section 6.2 below,


 


(2)                                  the Revolving Creditors and the Existing Notes Creditors will subordinate (and will be deemed hereunder to have
subordinated) their Liens in their Non-Priority Collateral (X) to the
Liens securing such Term Loan Creditor
DIP Financing on the same terms (but on a basis junior to the Liens in Priority
Collateral of the Term Loan Creditors
and, in the case of the Existing Loan Creditors, to the Liens of the Revolving
Creditors in such Term Loan Priority Collateral) as the Liens of the Term Loan Creditors in their Priority
Collateral are subordinated thereto (and, in the case of the Existing Loan
Creditors, to the Liens of the Revolving Creditors in such Term Loan Priority
Collateral)(except that if the Liens securing such Term Loan Creditor DIP
Financing are to be pari passu in
priority with the Liens of the Term Loan Creditors in the Term Loan Priority
Collateral securing the Term Loan Obligations, the Revolving Creditors and the
Existing Notes Creditors shall nonetheless subordinate their Liens in such
Non-Priority Collateral to such Liens (and, in the case of the Existing Loan
Creditors, to the Liens of the Revolving Creditors in such Term Loan Priority
Collateral) and such subordination will not alter in any manner the terms of
this Agreement), (Y) to any Senior Adequate Protection Liens or “replacement
Liens” granted to the Term Loan Creditors
as adequate protection of their interests in their Priority Collateral (or, in
the case of the Revolving Creditors in relation to the Existing Notes
Creditors, as adequate protection of the Revolving Creditors’ interests in any
Collateral), and (Z) to any “carve-out” agreed to by the Term Loan Agent or the other Term Loan Creditors, provided
that such “carve-out” shall be applied to the Term Loan Priority Collateral,
whether such Collateral existed before or after the petition date, and


 


(3)                                  the Revolving Creditors (X) shall not contest or oppose
in any manner any Term Loan Creditor
DIP Financing, or any Term Loan Cash
Collateral use or any adequate protection provided to the Term Loan Creditors as 


 


45

















 


adequate protection of their
interests in their Priority Collateral, (Y) shall be deemed to have waived
any objections to such adequate protection, Term Loan Creditor DIP Financing or Term Loan Cash Collateral use, including, without limitation, any objection alleging Obligors’ failure
to provide “adequate protection” of the interests of the Revolving Creditors or
the Existing Notes Creditors and (Z) shall
be deemed to have consented to the carve-out and to the subordination of the Liens
of the Revolving Agent and the Existing Notes Agent in the Term Loan Priority Collateral that
secures the Term Loan Creditor DIP Financing, in each case pursuant to clause (2) above.


 


(c)                                  The Term Loan Creditors shall not, directly or indirectly,
offer to provide, support any other Person in providing, provide or seek to
provide DIP Financing secured by Liens equal or senior to the Liens on the
Revolving Credit Priority Collateral securing the Revolving Credit Obligations,
without the prior written consent of the Revolving Agent.  In no event will any of the Term Loan
Creditors seek to obtain a priming Lien on any of the Revolving Credit Priority
Collateral and nothing contained herein shall be deemed to be a consent by
Revolving Creditors to any adequate protection payments using Revolving Credit
Priority Collateral. The Revolving Creditors shall not, directly or indirectly,
offer to provide, support any other Person in providing, provide or seek to
provide DIP Financing secured by Liens equal to or senior to the Liens on the
Term Loan Priority Collateral securing the Term Loan Obligations, without the
written consent of the Term Loan Agent. 
In no event will any of the Revolving Creditors seek to obtain a priming
Lien on any of the Term Loan Priority Collateral and nothing contained herein
shall be deemed to be a consent by Term Loan Creditors to any adequate
protection payments using Term Loan Priority Collateral.  The Existing Notes Creditors shall not,
directly or indirectly, offer to provide, support any other Person in
providing, provide or seek to provide DIP Financing secured by Liens equal or
senior to the Liens on any Collateral securing the Revolving Credit Obligations
or the Term Loan Obligations, In no event will any of the Existing Notes Creditors
seek to obtain a priming Lien on any of the Collateral and nothing contained
herein shall be deemed to be a consent by Term Loan Creditors or the Revolving
Creditors to any adequate protection payments in favor of the Existing Notes
Creditors, or in respect of their Liens on any Collateral, using any of the
Collateral.


 


6.2                                 Adequate Protection.  Notwithstanding the foregoing provisions in
this Section 6, in any Insolvency Proceeding, if any Priority
Secured Creditor (or any subset thereof) is granted adequate protection in
respect of its interests in its Priority Collateral (a “Senior
Adequate Protection Lien”) in the form of a replacement Lien, the
Junior Secured Creditors (other than any Existing Notes Creditors) may seek
(and the Priority Secured Creditors may not oppose) adequate protection of the
interests of the Junior Secured Creditors in such Priority Collateral in the
form of (i) a replacement Lien on the additional collateral subject to the
Senior Adequate Protection Liens (the “Junior Adequate Protection
Liens”), which Junior Adequate Protection Liens, if granted, will be
subordinate to all Liens (other than Liens (including Senior Adequate
Protection Liens) on Collateral that, as to such Junior Secured Creditor, is
its Priority Collateral, in which the Liens of the Junior Secured Creditor
shall remain senior, and, for clarity, other than any Liens securing the
Existing Notes Obligations) securing the Priority Obligations (including,
without limitation, the Senior Adequate Protection Liens and any “carve-out”
agreed to by the Priority Secured Creditors and any Liens securing
debtor-in-possession financing (whether or not constituting DIP Financing)) on
the same basis as the other Liens of the Junior 


 


46

















 


Secured
Creditor on the Priority Secured Creditor’s Priority Collateral securing the
Junior Obligations are so subordinated under this Agreement (provided
that any failure of the Term Loan Creditors or Revolving Creditors to obtain
such Junior Adequate Protection Liens shall not impair or otherwise affect the
agreements, undertakings and consents of the Term Loan Creditors or Revolving
Creditors pursuant to Section 6.1) and (ii) superpriority
claims under Section 507(b) of the Bankruptcy Code junior in all
respects to the superpriority claims granted under Section 507(b) of
the Bankruptcy Code to the Priority Secured Creditors on account of any of the
Priority Obligations or granted under Section 364(c)(1) of the
Bankruptcy Code with respect to any debtor-in-possession financing (whether or
not constituting DIP Financing) or use of its cash collateral (e.g. Revolver
Cash Collateral or Term Loan Cash Collateral, as applicable); provided
that the inability of the Junior Secured Creditors to receive a Lien on actions
under Chapter 5 of the Bankruptcy Code or proceeds thereof shall not affect the
agreements and waivers set forth in this Section 6.2.  No Existing Notes Creditors shall seek any
Junior Adequate Protection Liens or other adequate protection or replacement
liens, or any superpriority claims under Section 507(b) of the
Bankruptcy Code, in respect of the interests of the Existing Notes Creditors in
any Collateral


 


6.3                                 Sale of Collateral; Waivers.


 


(a)                                  In any Insolvency Proceeding, the Junior Secured Creditors
agree that they will not object to or oppose a Disposition of any Collateral
that, as to such Junior Secured Creditor, is Non-Priority Collateral, free and
clear of Liens or other claims under Section 363 of the Bankruptcy Code or
any other provision of the Bankruptcy Code, if the Priority Secured Creditors
with respect to such Collateral have consented to such Disposition.  No Junior Secured
Creditor shall  initiate or prosecute or join
with any other Person to initiate or prosecute any claim, action or other
proceeding, take any position at any hearing or proceeding of any nature, or
otherwise take any action whatsoever including, without limitation, (i) challenging
the enforceability, validity, priority (on terms inconsistent with this Agreement)
or perfected status of any Liens on any Collateral securing the Priority
Obligations of the Priority Secured Creditors under the applicable Obligation
Documents, (ii) asserting any claims which the Company or any other
Obligor may hold with respect to the Priority Secured Creditors, or (iii) determination of any other
Secured Creditor in respect of any Priority Collateral or the value of any
claims of such parties under Section 506(a) of the Bankruptcy Code or
otherwise.  No Secured Creditor will
assert a claim that challenges the perfection or validity of a Lien or
Obligations of another Secured Creditor that is based on allegations (x) of
fraudulent conveyance, unlawful payment of distributions to equity holders or
other like allegations, or (y) that could be asserted with comparable
merit against Liens, interests or rights of the Person asserting the claim.


 


(b)                                 Notwithstanding any other provision in this Agreement, any
Secured Creditor (other than any Existing Notes Creditor) may credit bid for
any assets that are subject to any Disposition in any Insolvency Proceeding in
accordance with Section 363(k) of the Bankruptcy Code; provided,
that (i) unless, prior to or in connection with a successful credit bid,
the Revolving Credit Obligations are Paid In Full, no Term Loan Creditor may
credit bid on any Revolving Credit Priority Collateral and (ii) unless,
prior to or in connection with a successful credit bid, the Term Loan
Obligations are Paid In Full, no Revolving Creditor may credit bid on any Term
Loan Priority Collateral .  No Existing
Notes Creditor may credit bid for any assets 


 


47

















 


that are
subject to any Disposition in any Insolvency Proceeding in accordance with Section 363(k) of
the Bankruptcy Code or otherwise.


 


6.4                                 Invalidated Payments.  To the extent that any Secured Creditor
receives payments on its Priority Obligations or Proceeds of Priority
Collateral for application to its Priority Obligations which are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
Bankruptcy Law, common law, equitable cause or otherwise (and whether as a
result of any demand, settlement, litigation or otherwise) (each a “Priority Claim Avoidance”), then to the extent of such
payment or Proceeds received, such Priority Obligations, or part thereof,
intended to be satisfied by such payment or Proceeds shall be revived and
continue in full force and effect as if such payments or Proceeds had not been
received by such Priority Secured Creditors, and this Agreement, if theretofore
terminated, shall be reinstated in full force and effect as of the date of such
Priority Claim Avoidance, and such prior termination shall not diminish,
release, discharge, impair or otherwise affect the Lien priorities and the
relative rights and obligations of the Priority Secured Creditors and the
Junior Secured Creditors provided for herein with respect to any event
occurring on or after the date of such Priority Claim Avoidance.  The Junior Secured Creditors further agree
that none of them shall be entitled to benefit from any avoidance action
affecting or otherwise relating to any distribution or allocation made in
accordance with this Agreement, whether by preference or otherwise, it being
understood and agreed that the benefit of such avoidance action otherwise
allocable to them shall instead be allocated and turned over for application in
accordance with the priorities set forth in this Agreement.


 


6.5                                 Payments.  Nothing in this Agreement prohibits or limits
the right of a Junior Secured Creditor (other than any Existing Notes Creditor)
to receive and retain any debt or equity securities that are issued by a
reorganized debtor in respect of its Lien in its Non-Priority Collateral
pursuant to a plan of reorganization or similar dispositive restructuring plan
in connection with an Insolvency Proceeding, provided that any debt
securities received by a Junior Secured Creditor to the extent on account of
its Junior Obligations in respect of its Non-Priority Collateral that
constitutes a “secured claim” within the meaning of Section 506(b) of
the Bankruptcy Code will be paid over or otherwise transferred to the Priority
Secured Creditor for application in accordance with Section 2.5, unless
such distribution is (x) made under a plan that is consented to by the
affirmative vote of all classes composed of the secured claims of Priority
Secured Creditors or (y) is of debt securities that (A) are secured
by a Lien on assets of the reorganized debtor which assets are, as to such
Junior Secured Creditor in its capacity as Priority Secured Creditor hereunder,
of the same character as its Priority Collateral hereunder, and (B) if
secured by assets that are of the same character as its Non-Priority Collateral
hereunder, such assets referred to in this clause (B) also secure debt
securities distributed to the Priority Secured Creditor in respect of its Lien
on such Collateral that is its Priority Collateral, and such Lien of the Junior
Secured Creditor referred to in this clause (B) is junior in priority to
the Lien of the Priority Secured Creditor in such assets to the same extent as
the Lien on its Non-Priority Collateral is junior to the Lien thereon of the
Priority Secured Creditor as provided herein, and in such case the provisions
of the next sentence shall govern.  If,
in an Insolvency Proceeding, debt securities of the reorganized debtor secured
by Liens upon any property of the reorganized debtor are distributed pursuant
to a plan of reorganization or similar dispositive restructuring plan, both on
account of the Priority Secured Creditors’ Liens in their Priority Collateral
and on account of Junior Secured Creditors’ Liens in such Collateral, then, to
the extent the debt 


 


48

















 


securities
distributed on account of the Priority Secured Creditors’ Liens in their
Priority Collateral and on account of the Junior Secured Creditors’ Liens in
such Collateral are secured by Liens upon the same property, the provisions of
this Agreement will survive the distribution of such debt securities pursuant
to such plan and will apply with like effect to the Liens securing such debt
securities.  Notwithstanding the
foregoing, if any Existing Notes Creditor shall receive in respect of their
Lien on any Collateral any debt or equity securities that are issued by a
reorganized debtor pursuant to a plan of reorganization or similar dispositive
restructuring plan in connection with an Insolvency Proceeding, then unless
such distribution is made under a plan that is consented to by the affirmative
vote of all classes composed of the secured claims of Priority Secured
Creditors, all such debt or equity securities so received shall be paid or
delivered directly to Priority Secured Creditors (to be held and/or applied by
the Priority Secured Creditors in accordance with the terms of Section 3.8
hereof)


 


In the
event of any Insolvency Proceeding, except as otherwise provided above, all Proceeds
of Priority Collateral (including, without limitation, any Distribution which
would otherwise, but for the terms hereof, be payable or deliverable in respect
of the Junior Obligations as to such Priority Collateral) shall be paid or
delivered directly to Priority Secured Creditor (to be held and/or applied by
the Priority Secured Creditor in accordance with the terms of the applicable
Obligation Documents) until all Priority Obligations are Paid In Full before
any of the same shall be made to one or more of the Junior Secured Creditors on
account of any Junior Obligations, and each Junior Secured Creditor irrevocably
authorizes, empowers and directs any debtor, debtor in possession, receiver,
trustee, liquidator, custodian, conservator or other Person having authority,
to pay or otherwise deliver all such Distributions in respect of its Junior
Obligations to the Priority Secured Creditor. 
Each Junior Secured Creditor also irrevocably authorizes and empowers
the Priority Secured Creditors, in the name of each Junior Secured Creditor, to
demand, sue for, collect and receive any and all such Distributions in respect
of any Junior Obligations to which the Priority Secured Creditors are entitled
hereunder.


 


6.6                                 Separate Grants of Security and Separate Classification.  Each Secured
Creditor acknowledges and agrees that (a) the grants of Liens pursuant to
the Term Loan Credit Documents and the Revolving Credit Documents and the
Existing Notes Documents constitute three separate and distinct grants of Liens
and (b) because of their differing rights in the Collateral, the Revolving
Credit Secured Claims, the Term Loan Secured Claims and the Existing Notes
Secured Claims are fundamentally different and must be separately classified in
any plan of reorganization proposed or adopted in an Insolvency
Proceeding.  No Term Loan Creditor shall
seek in any Insolvency Proceeding to be treated as part of the same class of
creditors as the Revolving Creditors or the Existing Notes Creditors or shall
oppose any pleading or motion for the Revolving Creditors, the Existing Notes
Creditors and the Term Loan Creditors to be treated as separate classes of
creditors.  No Revolving Creditor shall
seek in any Insolvency Proceeding to be treated as part of the same class of
creditors as the Term Loan Creditors or the Existing Notes Creditors or shall
oppose any pleading or motion for the Revolving Creditors, the Existing Notes
Creditors and the Term Loan Creditors to be treated as separate classes of
creditors.  No Existing Notes Creditor
shall seek in any Insolvency Proceeding to be treated as part of the same class
of creditors as the Revolving Creditors or the Term Loan Creditors or shall
oppose any pleading or motion for the Revolving Creditors, the Existing Notes
Creditors and the Term Loan Creditors to be treated as separate classes of
creditors.  Notwithstanding the
foregoing, if it is held that the Revolving Credit Secured Claims and/or the
Existing Notes 


 


49

















 


Secured
Claims and/or the Term Loan Secured Claims in respect of the Collateral
constitute only one secured claim (rather than separate classes of secured
claims), then the Secured Creditors hereby acknowledge and agree that all
distributions shall be made as if there were separate classes of secured claims
against the Company and the other Obligors in respect of the Collateral, with
the effect being that, to the extent that the aggregate value of the Priority
Collateral exceeds the amount of the Priority Obligations, the Priority Secured
Creditors as to such Priority Collateral shall be entitled to receive to the
extent of such excess, in addition to amounts distributed to them in respect of
principal, pre-petition interest and other claims, all amounts owing in respect
of post-petition interest, and fees, costs and charges incurred subsequent to
the commencement of the applicable Insolvency Proceeding to the extent
constituting Revolving Credit Obligations or Term Loan Obligations, as
applicable, in accordance with the other provisions hereof before any
distribution from such Priority Collateral is made in respect of any of the
claims held by the Junior Secured Creditors as to such Collateral.


 


6.7                                 Rights as Unsecured Lenders; Release of Lien in Non-Priority
Collateral.  In any Insolvency Proceeding, to the extent
not prohibited by this Agreement, each Secured Creditor may take any action,
file any pleading, appear in any proceeding and exercise rights and remedies
that could be taken by any unsecured creditor, in its capacity as such.


 


6.8                                 Relief From the Automatic Stay.  Until the Priority Obligations have been Paid
in Full, the Junior Secured Creditor agrees that it shall not, without the
prior written consent of the Priority Secured Creditor, seek or request relief
from or modification of the automatic stay or any other stay in any Insolvency
Proceeding in respect of any part of the Priority Collateral or any Proceeds
thereof; provided, that, in the event the Priority Secured Creditor
seeks or requests relief from or modification of the automatic stay or any
other stay in any Insolvency Proceeding in respect of its Priority Collateral,
the Priority Secured Creditor agrees that the Junior Secured Creditor may seek
or request similar relief to that sought by the Priority Secured Creditor, so
that the Junior Secured Creditor may seek to exercise its rights and remedies
under the Junior Documents and against such Collateral and Proceeds thereof
subject to the provisions of this Agreement.


 


6.9                                 Effect of Agreement in Bankruptcy.  This Agreement shall
be applicable both before and after the filing of any petition by or against
any Obligor under the Bankruptcy Code or any other Insolvency Proceeding and
all converted or succeeding cases in respect thereof, and all references herein
to any Obligor shall be deemed to apply to any trustee for such Obligor and
such Obligor as a debtor-in-possession. 
The relative rights of the Term Loan Creditors and the Revolving
Creditors and the Existing Notes Creditors in respect of any Collateral or Proceeds
thereof shall continue after the filing of such petition on the same basis as
prior to the date of such filing.  This
Agreement shall constitute a “subordination agreement” for the purposes of Section 510(a) of
the Bankruptcy Code and shall be enforceable in any Insolvency Proceeding in
accordance with its terms.


 


Section 7.                                            Representations
and Warranties.


 


The
Revolving Agent and the Term Loan Agent and the Existing Notes Agent each
represent and warrant to the other parties hereto that it is authorized under
the Revolving 


 


50

















 


Credit Agreement and the Term Loan Credit Agreement and the
Existing Notes Indenture, as the case may be, to enter into this Agreement.


 


Section 8.                                            Miscellaneous.


 


8.1                                 Termination.  Subject to Section 6.4 and
subject to Section 3.8, (i) this Agreement shall terminate as
to the Revolving Creditors (except for their obligations and agreements under Section 2,
Section 3.5, Section 3.8, and Section 8,
which shall continue in full force and effect) and be of no further force and
effect with respect to or for the benefit of the Revolving Creditors (except as
aforesaid) upon Payment in Full of the Revolving Credit Obligations, and (ii) this
Agreement shall terminate as to the Term Loan Creditors (except for their
obligations and agreements under Section 2,  Section 3.5,
Section 3.8, Section 8, which shall continue in full
force and effect) and be of no further force and effect with respect to or for
the benefit of the Term Loan Creditors (except as aforesaid) upon Payment in
Full of the Term Loan Obligations.


 


8.2                                 Successors and Assigns; No Third Party Beneficiaries.


 


(a)                                  This Agreement shall be binding upon each Secured Creditor
and its respective successors and assigns and shall inure to the benefit of
each Secured Creditor and its respective successors, participants and
assigns.  Except solely to the extent of
the Obligors’ rights to consent pursuant to and subject to the conditions in Section 8.7(b),
no other Person shall have or be entitled to assert rights or benefits
hereunder.


 


(b)                                 Each Secured Creditor reserves the right to grant
participations in, or otherwise sell, assign, transfer or negotiate all or any
part of, or any interest in, their respective Obligations; provided that
no Secured Creditor shall be obligated to give any notices to or otherwise in
any manner deal directly with any participant in the Obligations and no
participant shall be entitled to any rights or benefits under this Agreement,
except through the Secured Creditor with which it is a participant.


 


(c)                                  In connection with any participation or other transfer or
assignment, a Secured Creditor (i) may, subject to its respective
Obligation Documents, disclose to such assignee, participant or other
transferee or assignee all documents and information which such Secured
Creditor now or hereafter may have relating to any Obligor or the Collateral
and (ii) shall disclose to such participant or other transferee or
assignee the existence and terms and conditions of this Agreement.


 


8.3                                 Notices.  All notices and other communications provided
for hereunder shall be in writing and shall be sent by registered mail, return
receipt requested, sent by overnight courier, telecopied or sent by PDF or
other readable electronic means, delivered, as follows:


 


51

















 


(a)                                  if to the Term Loan Agent, to it at the following address:


 




Attention:  





Re:  FiberTower

Fax:  (     ) 

Email: 


 


with a copy to:


 


Gibson, Dunn &
Crutcher LLP

200 Park Avenue, 48th Floor

New York, New York 10066-0193

Attn: Robert L. Cunningham

Re:  FiberTower

Fax: (212) 351-25208

Email: Rcunningham@GibsonDunn.com


 


(b)                                 if to the Revolving Agent, to it at the following address:


 


                                             ,



                                             


RE: FiberTower

Attention:  

Fax:  (     ) 

Email: 


 


With a copy to:


 








RE: FiberTower

Attention:  

Fax:  (     )

Email: 


 


52

















 


(c)                                  if to the Existing Notes Agent, to it at the following
address:


 


                                             ,


  

RE: FiberTower

Attention:  

Fax:  (     ) 

Email: 


 


With a copy to:


 








RE: FiberTower

Attention:  

Fax:  (     ) 

Email: 


 


(d)                                 If to any Obligor, to it at the following address:


 


c/o FiberTower Corporation







Attention: 

Fax: 


 


with a copy to:


 








RE: 

Attention:  

Fax:  (     )

Email: 


 


or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties complying as to delivery with the terms of
this Section 8.3.  All such
notices and other communications shall be effective (i) if sent by
registered mail, return receipt requested, when received or 3 Business Days
after mailing, whichever first occurs, (ii) if telecopied or sent by other
electronic means, when transmitted and a confirmation is received, provided
the same is on a Business Day and, if not, on the next Business Day or (iii) if
delivered by messenger or overnight courier, upon delivery, provided the same is on a Business Day and, if
not, on the next Business Day.


 


53
















 


8.4                                 Counterparts.  This Agreement may be executed by the parties
hereto in several counterparts, and each such counterpart shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.  A signed counterpart (or
signature page) of this Agreement delivered by facsimile, PDF or other
electronic means shall be effective for all purposes as a manually signed
original thereof whether or not an original executed counterpart thereof is
delivered, and each party hereto shall promptly on request by any other party
hereto deliver a manually signed original executed counterpart to each such
requesting party.


 


8.5                                 GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.  THIS AGREEMENT AND
THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.  EACH OF THE
PARTIES HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS
LOCATED IN NEW YORK, NEW YORK SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES AMONG THE PARTIES HERETO PERTAINING TO THIS AGREEMENT OR TO
ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED THAT
THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK.  EACH OF THE PARTIES HERETO EXPRESSLY SUBMITS
AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN
ANY SUCH COURT, AND EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION
WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE
OR FORUM NON CONVENIENS.


 


8.6                                 MUTUAL WAIVER OF JURY TRIAL.  THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE PARTIES ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS
RELATED THERETO.


 


8.7                                 Amendments.


 


(a)                                  No amendment or waiver of any provision of this Agreement,
and no consent to any departure by any Person from the terms hereof, shall in
any event be effective unless it is in writing and (i) insofar as it
relates to any rights or obligations of the Term Loan Agent and Revolving Agent
as between themselves, signed by the Term Loan Agent and the Revolving Agent,
and (ii) insofar as it relates to any rights or obligations of the
Existing Notes Creditors, signed by the Existing Notes Agent, the Term Loan
Agent and the Revolving Agent.


 


(b)                                 No Obligor shall have any right to consent to or approve any
amendment, modification or waiver of any provision of this Agreement.


 


54

















 


8.8                                 No Waiver.  No failure or delay on the part of any
Secured Creditor in exercising any power or right under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right.


 


8.9                                 Severability.  Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provisions in any other jurisdiction.


 


8.10                           Further Assurances.  Each party hereto agrees to cooperate fully
with each other party hereto to effectuate the intent and provisions of this
Agreement and, from time to time, to execute and deliver any and all other
agreements, documents or instruments, and to take such other actions, as may be
reasonably necessary or desirable to effectuate the intent and provisions of
this Agreement.


 


8.11                           Headings.  The section headings contained in this
Agreement are and shall be without meaning or content whatsoever and are not
part of this Agreement.


 


8.12                           Credit Analysis.  The Secured Creditors (other than any Person
acting as a trustee or collateral agent) shall each be responsible for keeping
themselves informed of (a) the financial condition of the Obligors and all
other all endorsers, obligors and/or guarantors of the Obligations and (b) all
other circumstances bearing upon the risk of nonpayment of the
Obligations.  No Secured Creditor shall
have any duty to advise any other Secured Creditor of information known to it
regarding such condition or any such other circumstances.  No Secured Creditor assumes any liability to
any other Secured Creditor or to any other Person with respect to:  (i) the financial or other condition of
Obligors under any instruments of guarantee with respect to the Obligations, (ii) the
enforceability, validity, value or collectibility of the Obligations, any
Collateral therefor or any guarantee or security which may have been granted in
connection with any of the Obligations or (iii) any Obligor’s title or
right to transfer any Collateral or security.


 


8.13                           Waiver of Claims.  To the maximum extent permitted by law, each
party hereto waives any claim it might have against any Secured Creditor with
respect to, or arising out of, any action or failure to act or any error of
judgment or negligence, mistake or oversight whatsoever on the part of any
other party hereto or their respective directors, officers, employees or agents
with respect to any exercise of rights or remedies under the Obligation Documents
or any transaction relating to the Collateral in accordance with this
Agreement.  None of the Secured
Creditors, nor any of their respective directors, officers, employees or agents
shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or, except as specifically provided
herein, shall be under any obligation to Dispose of any Collateral upon the
request of any Obligor or any Secured Creditor or any other Person or to take
any other action whatsoever with regard to any Collateral or any part thereof.


 


8.14                           Conflicts.  In the event of any conflict between the
provisions of this Agreement and the provisions of the Obligation Documents,
the provisions of this Agreement shall govern.


 


55

















 


8.15                           Specific Performance.  Each of the Term Loan Agent and the Revolving
Agent and the Existing Notes Agent may demand specific performance of this
Agreement and, on behalf of itself and the respective other Secured Creditors,
hereby irrevocably waives any defense based on the adequacy of a remedy at law
and any other defense that might be asserted to bar the remedy of specific
performance in any action which may be brought by the respective Secured
Creditors.


 


8.16                           Provisions Solely to Define Relative Rights.  The provisions of
this Agreement are and are intended solely for the purpose of defining the
relative rights of the Secured Creditors. 
None of the Obligors or any other creditor thereof shall have any rights
hereunder, and none of the Obligors may rely on the terms hereof.  Nothing in this Agreement is intended to or
shall impair the obligations of Obligors under the Obligations Documents.


 


8.17                           Lien Priority Provisions; Subrogation.  This Agreement and
the rights and benefits hereunder shall inure solely to the benefit of the Term
Loan Agent, the Term Loan Creditors and the Revolving Agent and the Revolving
Creditors and the Existing Notes Agent and the Existing Notes Creditors and
their respective successors and permitted assigns and no other Person
(including the Obligors or any trustee, receiver, debtor in possession or
bankruptcy estate in a bankruptcy or like proceeding) shall have or be entitled
to assert rights or benefits hereunder. 
Each Junior Secured Creditor hereby agrees that until the Term Loan
Termination Date, if the Junior Secured Creditor is the Revolving Agent, or the
Revolving Credit Termination Date, if the Junior Secured Creditor is the Term
Loan Agent, it will not assert any rights of subrogation it or they may acquire
as a result of any payment hereunder. 
Each Existing Notes Creditor hereby agrees that until the later of the
Term Loan Termination Date and Revolving Credit Termination Date, it will not
assert any rights of subrogation it or they may acquire as a result of any
payment hereunder.  Nothing contained in
this Agreement is intended to or shall impair the obligation of any Obligor to
pay the Obligations as and when the same shall become due and payable in
accordance with their respective terms.


 


8.18                           Entire Agreement.  This Agreement and the Obligation Documents
embody the entire agreement of the Obligors, the Term Loan Agent, the Term Loan
Creditors, the Revolving Agent, the Revolving Creditors and the Existing Notes
Agent and the Existing Notes Creditors with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings
relating to the subject matter hereof and thereof and any draft agreements,
negotiations and/or discussions involving any Obligor and any of the Term Loan
Agent, the Term Loan Creditors, the Revolving Agent, the Revolving Creditors
and the Existing Notes Agent and the Existing Notes Creditors relating to the
subject matter hereof.


 


8.19                           Indemnification.  The Existing Notes Agent, the New Notes
Agent, the Term Loan Agent and each other Secured Creditor shall be entitled to
reimbursement of their respective expenses incurred hereunder and indemnity in
connection with the actions taken by any of them hereunder.  The Obligors, jointly and severally, hereby
agree to indemnify and hold harmless the Existing Notes Agent, the New Notes
Agent, the Term Loan Agent, and each other Secured Creditor and their
respective directors, officers, employees, agents, successors and assigns,
against and from any and all claims, actions, liabilities, costs and expenses
of any kind or nature whatsoever (including reasonable fees and disbursements
of counsel) that may be imposed on, incurred by, or asserted against any of
them, in any way relating to or arising out of 


 


56

















 


this
Agreement, any exercise of remedies hereunder or any other action taken or
omitted by them hereunder, except to the extent a court holds in a final and
nonappealable judgment that such claims, actions, liabilities, costs, and
expenses directly resulted from the gross negligence or willful misconduct of
such indemnified Person.  The provisions
of this Section shall survive Payment in Full of the Existing Notes
Obligations, the New Notes Obligations, and the Term Loan Obligations, the
discharge or satisfaction of the Existing Notes Indenture and the New Notes
Indenture, and the termination of this Agreement.


 


8.20                           Obligations Unconditional.  All rights, interests, agreements and
obligations hereunder of the Priority Secured Creditors in respect of any
Collateral and the Junior Secured Creditors in respect of such Collateral shall
remain in full force and effect regardless of:


 


(a)                                  any lack of validity or enforceability of any Priority
Document or any Junior Document and regardless of whether the Liens of the
Priority Secured Creditor are not perfected or are voidable for any reason;


 


(b)                                 any change in the time, manner or place of payment of, or in
any other terms of, all or any of the Senior Obligations or Junior Obligations,
or any amendment or waiver or other modification (including any increase in the
amount thereof), whether by course or conduct or otherwise, of the terms of any
Priority Document or any Junior Document to the extent not inconsistent with
the provisions hereof;


 


(c)                                  any lack of perfection of any Lien on any Collateral or
except as expressly provided herein, any exchange or release of Collateral, or
any amendment, waiver or other modification, whether in writing or by course of
conduct or otherwise, of all or any of the Senor Obligations or Junior
Obligations or any guarantee thereof; or


 


(d)                                 the commencement of any Insolvency Proceeding in respect of
any Obligor.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]


 


57

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first
above written.


 


	
   

  	
   

  	
  ,

  
	
   

  	
  as
  Term Loan Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  .,

  
	
   

  	
  as
  Revolving Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  .,

  
	
   

  	
  as
  Existing Notes Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


Signature
Page to Amended and Restated Intercreditor Agreement


 

















 


Each of the
undersigned hereby acknowledges and agrees to the foregoing terms and
provisions.


 


	
   

  	
  COMPANY
  AND OTHER OBLIGORS:

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER
  NETWORK SERVICES CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ART
  LEASING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TELIGENT
  SERVICES ACQUISITION, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ART
  LICENSING CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Signature
Page to Amended and Restated Intercreditor Agreement


 

















 


	
   

  	
  FIBERTOWER
  SOLUTIONS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Signature
Page to Amended and Restated Intercreditor Agreement


 
















 


Exhibit G


 


FORM OF SUBORDINATION PROVISIONS


 

















 


Exhibit G


 


SUBORDINATION PROVISIONS


 


1.     Definitions.


 


“Business
Day” shall
mean any day other than a Saturday, Sunday or other day on which commercial
banks in New York, New York, are authorized or required by law or executive
order to close.


 


“Collateral”
shall mean
the collateral for the Senior Debt.


 


“Collection
Action” shall
mean (a) to demand, sue for, take or receive (other than as permitted
hereunder) from or on behalf of any Obligor by set-off or in any other manner,
the whole or any part of any moneys which may now or hereafter be owing by any
Obligor with respect to the Junior Obligations, (b) to initiate or
participate with others in any suit, action or proceeding against any Obligor
to (i) enforce payment of or to collect the whole or any part of the
Junior Obligations, or (ii) commence judicial enforcement of any of the
rights and remedies under the Junior Debt Documents or applicable law with
respect to the Junior Obligations or the Junior Debt Documents, or (c) to
accelerate any Junior Obligations.


 


“Company”
shall mean
FiberTower Corporation, the issuer of the Notes.


 


“Holders” shall mean the holders from time to time
of the Notes and any other holders of Senior Debt.


 


“Indenture” shall mean the Indenture under which the Notes are outstanding, as
amended or supplemented from time to time.


 


“Junior Creditors” shall mean each holder of the Junior Debt or any
other Junior Obligations from time to time as permitted hereunder.


 


“Junior
Debt” shall
mean the subordinated indebtedness of the Company referred to in clause (2)(B)(X) of
Section 5.09 of the Indenture.


 


“Junior
Debt Documents”
shall mean any purchase agreement, indenture, loan agreement or other governing
document relating to, or any other document evidencing, governing or otherwise
relating to the Junior Debt and the Junior Guarantees, including without
limitation any promissory note(s) or other instrument(s) representing
the Junior Debt or the Junior Guaranties, and all other documents and instruments
evidencing or pertaining to all or any portion of the Junior Obligations.


 


“Junior
Default”
shall mean any event of default under the Junior Debt Documents, after the
expiration of any applicable grace or cure period.


 

















 


“Junior
Default Notice”
shall mean a written notice from any Junior Creditor or Junior Trustee to the
Trustee pursuant to which the Trustee is notified of the occurrence of a Junior
Default, which notice incorporates a reasonably detailed description of such
Junior Default.


 


“Junior
Guaranties” shall
mean any guaranties by subsidiaries or holding company of the Company of the
obligations of the Company constituting Junior Debt, which guaranties shall in
each case be guaranties subordinated in right of payment to all obligations of any
Obligor in respect of all obligations under the Senior Debt Documents
(including any guarantee thereof), as contemplated hereby.


 


“Junior
Obligations”
shall mean the Junior Debt, the Junior Guarantees and all of the other
indebtedness and obligations of the Obligors to the Junior Creditors evidenced
or governed by, or arising under or relating to, the Junior Debt Documents in
connection therewith.


 


“Junior
Trustee” shall
means any trustee or other representative for the Junior Creditors.


 


“Notes” shall
mean the Company’s 9.00% Senior Secured Notes due [2015/2016].


 


“Obligor”
shall mean
the Company and each guarantor of the Senior Debt.


 


“Person” shall mean any individual, firm,
corporation, limited liability company, partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, Governmental Authority or
other entity of any kind, and shall include any successor (by merger or
otherwise) of such entity.


 


“Proceeding” shall mean any voluntary or involuntary
insolvency, bankruptcy, receivership, custodianship, liquidation, dissolution,
reorganization, assignment for the benefit of creditors, appointment of a
custodian, receiver, trustee or other officer with similar powers or any other
proceeding for the liquidation, dissolution or other winding up of a Person.


 


“Required Holders”
shall means Holders of at least a majority in principal amount of the Notes.


 


“Senior
Collection Action” shall mean (a) to demand, sue for, take or receive (other than as
permitted hereunder) from or on behalf of any Obligor by set-off or in any
other manner, the whole or any part of any moneys which may now or hereafter be
owing by the Obligors with respect to the Senior Debt, (b) to initiate or
participate with others in any suit, action or proceeding against any Obligor
to (i) enforce payment of or to collect the whole or any part of the
Senior Debt, (ii) commence judicial enforcement of any of the rights and
remedies under the Senior Debt Documents or applicable law with respect to the
Senior Debt or the Senior Debt Documents, or (iii) exercise any right of
foreclosure or other enforcement action (judicial or otherwise) against any
Collateral, (c) to accelerate any Senior Debt, or (d) take possession
of or levy upon any properties or assets of, any Obligor.


 

















 


“Senior
Debt” shall
mean all indebtedness, obligations and liabilities (including all principal,
interest (including any interest accruing on the foregoing after the
commencement of a Proceeding, without regard to whether or not such interest is
an allowed claim), fees, charges and collection expenses and expenses of any
Collection Action) now or hereafter owing by Obligors under the Senior Debt
Documents; provided, however, that in no event shall the
principal amount of the Senior Debt exceed the product of (x) 150% and (y) the
original principal amount of the Notes (such product to be reduced by the
amount of any principal repayments or redemptions of the Senior Debt other than
in connection with a full or partial refinancing or replacement thereof
permitted by the terms of the Indenture).


 


“Senior
Debt Documents”
shall mean the Indenture, the Senior Guaranties, and all security agreements,
pledge agreements, promissory notes and other documents and instruments
executed or delivered by Obligors in connection therewith or with the Notes.


 


“Senior
Default”
shall mean any Senior Payment Default or Senior Non-Payment Default.


 


“Senior
Default Notice”
shall mean a written notice from the Trustee to the Junior Creditors or any
Junior Trustee on their behalf pursuant to which the Junior Creditors or Junior
Trustee is notified of the occurrence of a Senior Default, which notice
incorporates a reasonably detailed description of such Senior Default.


 


“Senior
Non-Payment Default” shall mean any event default (other than a Senior Payment Default)
under the Indenture or the other Senior Debt Documents, after expiration of any
related grace or cure period, if any, which event of default permits the
Trustee or any Holder or Holders to accelerate the maturity or demand payment
of all or any portion of the Senior Debt.


 


“Senior
Payment Default”
shall mean any default in the payment when due of any Senior Debt, including
any default in the payment of interest on the Senior Debt or of any principal
of Senior Debt after acceleration of the maturity thereof.


 


“Subsidiary” shall mean, as to any Person, a
corporation, partnership, limited liability company or other entity of which
shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity
are at the time owned, or the management of which is otherwise controlled,
directly or indirectly by such Person.


 


“Trustee” shall mean [Wells Fargo Bank, National
Association], as trustee for the Notes, together with any successor Person
designated as trustee or representative of the holders of Senior Debt.


 


2.     Subordination.


 


2.1           Subordination of Junior
Obligations to Senior Debt.  Each
Obligor covenants and agrees, and each Junior Creditor by its acceptance of the
Junior Debt and any Junior


 

















 


Guaranties and its
execution of the other Junior Debt Documents (whether upon original issue or
upon transfer or assignment) likewise covenants and agrees that the payment of
any and all of the Junior Obligations shall be subordinate and subject in right
of payment, to the extent and in the manner hereinafter set forth, to the
indefeasible prior payment in full in cash of the Senior Debt, and that each
holder of Senior Debt, whether now outstanding or hereafter created, incurred,
assumed or guaranteed, shall be deemed to have acquired Senior Debt in reliance
upon the provisions contained in this Agreement.


 


2.2           Proceedings.  In the event of any Proceeding involving any
Obligor, (a)  all Senior Debt first shall be indefeasibly paid in full in
cash before any payment of or with respect to the Junior Obligations shall be
made; (b) any payment or distribution, whether , property or securities
which, but for the terms hereof, otherwise would be payable or deliverable in
respect of the Junior Obligations, shall be paid or delivered directly to the
Trustee (to be held and/or applied by the Trustee in accordance with the terms
of the Indenture) until all Senior Debt is paid in full in cash, and each
Junior Creditor irrevocably authorizes, empowers and directs all receivers,
trustees, liquidators, custodians, conservators and others having authority in
the premises to effect all such payments and distributions; provided,
that clauses (a) and (b) shall not prohibit any payment or
distribution of common equity securities of the Company or of debt securities
that are subordinated to the Senior Debt or to any securities issued to the
holders of Senior Debt in a Proceeding, at least to the same extent set forth
herein, and which have maturities and other terms no less advantageous to
Obligors, the Trustee and the Holders than the terms contained in the Junior
Debt Documents; (c) each Junior Creditor agrees to execute and deliver to
the Trustee all such further instruments confirming the authorization referred
to in the foregoing clause (b); and (d) each Junior Creditor agrees not to
initiate or prosecute or encourage any other Person to initiate or prosecute
any claim, action or other proceeding challenging the enforceability of the
Senior Debt or any liens and security interests securing the Senior Debt.  The Senior Debt shall continue to be treated
as Senior Debt and the provisions of this Agreement shall continue to govern
the relative rights and priorities of the Trustee and the Holders and the
Junior Creditors even if all or part of the Senior Debt or the security interests
securing the Senior Debt are subordinated, set aside, avoided or disallowed in
connection with any such Proceeding and this Agreement shall be reinstated if
at any time any payment of any of the Senior Debt is rescinded or must
otherwise be returned by any holder of Senior Debt or any representative of
such holder.


 


2.3         Payment Upon Senior Default.


 


No Obligor may make and no Junior Creditor may receive
any payment of principal, interest or any other amount due or owing with
respect to the Junior Obligations if, at the time of such payment:


 


(a)   Subject to
clauses (D)-(E) of this subsection 2.3, (i) the Obligors and the
Junior Creditors or any Junior Trustee shall have received a Senior Default
Notice from the Trustee or any Holder stating that a Senior Payment Default
exists, and (ii) such Senior Payment Default shall not have been cured or
waived in accordance with the terms of the Senior Debt Documents; or


 

















 


(b)   Subject to
clauses (A)-(E) of this subsection 2.3, (i) the Obligors and the
Junior Creditors or any Junior Trustee shall have received a Senior Default
Notice from the Trustee stating that a Senior Non-Payment Default exists or
would be created by the making of such payment, (ii) such Senior
Non-Payment Default shall not have been cured or waived in accordance with the
terms of the Senior Debt Documents and (iii) 90 days shall not have
elapsed since the date such notice was received; or


 


(c)   Notwithstanding
clauses (a) and (b) above, subject to clauses (D)-(E) of this
subsection 2.3, the Trustee shall have accelerated the Senior Debt or the Trustee or the Holders shall have
instituted judicial proceedings seeking to enforce payment of or to
collect the whole or any part the Senior
Debt against any Obligor and the Trustee shall have notified the Junior
Creditors of that fact.


 


So long as such payments are not otherwise prohibited
under this subsection 2.3,  Obligors may
resume payments (including all payments missed due to the application of clause
(a), (b) or (c) of this subsection 2.3) in respect of the Junior
Obligations or any judgment with respect thereto:


 


(i)            in the case of a Senior Payment
Default referred to in clause (a) of this subsection 2.3, upon a cure or
waiver of such Senior Payment Default in accordance with the terms of the
Senior Debt Documents; or


 


(ii)           in the case of a Senior Non-Payment
Default referred to in clause (b) of this subsection 2.3, upon the earlier
to occur of (x) the cure or waiver of such Senior Non-Payment Default in
accordance with the terms of the Senior Debt Documents, or (y) the
expiration of such period of 90 days; or


 


(iii)          if the acceleration of the Senior Debt
referred to in clause (c) of this subsection 2.3 is rescinded and if each
judicial proceeding referred to in clause (c) of this subsection 2.3 is dismissed;


 


provided that no other or subsequent event of the
nature referred to in clause (a), (b) or (c) of this subsection 2.3
shall have occurred which would independently prohibit such payment as
contemplated hereinabove


 


Notwithstanding any provision of this subsection 2.3
to the contrary:


 


A.    The Trustee
shall not issue to the Junior Creditors more than two notices pursuant to
clause (b)(i) of this subsection 2.3 in any 365 day period, provided that
in any 365 day period, there shall be at least 180 days during which no
blockage of payments by reason of the operation of this subsection 2.3,
pursuant to a notice under clause (b)(i) of this subsection 2.3, shall be
effective and continuing;


 


B.    No Senior
Non-Payment Default existing on the date any notice is given pursuant to clause
(b)(i) of this subsection 2.3 shall, unless the same shall have ceased to
exist for a period of 


 

















 


at least 30 consecutive days, be used as a basis for any subsequent
such notice (it being acknowledged that any breach of a financial covenant
giving rise to a Senior Non-Payment Default for a period ending subsequent to
the date of delivery of any such notice with respect to a breach of the same
covenant for a prior period shall constitute a new Senior Non-Payment Default
for this purpose);


 


C.    The failure
of Obligors to make any payment with respect to the Junior Obligations by
reason of the operation of this subsection 2.3 shall not be construed as
preventing the occurrence of a Junior Default under the applicable Junior Debt
Documents; and


 


D.    The
Obligors shall not be prohibited from making payments of interest on the Junior
Debt by the issuance of additional Junior Debt.


 


The provisions of this subsection 2.3 shall not apply
to any payment with respect to which subsection 2.2 would be applicable.


 


2.4           Payments Otherwise Permitted.  Nothing contained in this Section 2 or
elsewhere in this Agreement or in the Junior Debt Documents shall prevent
Obligors at any time, except during the pendency of any Proceeding referred to
in subsection 2.2 or under the conditions referred to in subsection 2.3, from
making or the Junior Creditors or any Junior Trustee from receiving regularly
scheduled payments of accrued and unpaid interest on to the extent required
pursuant to the Junior Debt Documents. 
However, at no time shall prepayments of the Junior Obligations (whether
by way of maturity, acceleration or otherwise) be permitted to be made by any
Obligor or received by any Junior Creditor or any Junior Trustee, without the
prior written consent of the Trustee and the Required Holders.


 


2.5           Restriction on Action by Junior
Creditor.


 


(a)   Until the
Senior Debt is indefeasibly paid in full in cash, no Junior Creditor or Junior
Trustee shall, without the prior written consent of the Required Holders, take
any Collection Action with respect to the Junior Obligations, except as
permitted below.


 


(b)   Upon the
earliest to occur of:


 


(i)            during the existence of any Senior
Default, (A) the sale or other disposition of all or substantially all of
the properties and assets of the Company and the Guarantors, taken as a whole;
or (B) the sale or other disposition of properties or assets by any
Obligor or any Subsidiary for a purchase price which equals or exceeds 50 % of
then outstanding principal amount of the Notes; or


 


(ii)           commencement of any Senior Collection
Action by the Trustee or any Holder; or


 


(iii)          the passage of 90 days from the
occurrence of any Junior Default (or if later, from the date of the Trustee’s
receipt of a Junior Default Notice in respect 


 

















 


thereof) if such Junior
Default shall not have been cured or waived within such period;


 


the Junior
Creditors or any Junior Trustee on their behalf may, upon at least five
Business Days’ prior written notice of such intention to the Trustee, accelerate
the Junior Obligations or take any other Collection Action; provided, however,
that if following the disposition of assets or properties or the commencement
of any Senior Collection Action in respect of the Senior Debt as described in
clause (i) or (ii) above, such disposition or Senior Collection
Action is rescinded or terminated, then all Collection Actions taken by such
Junior Creditor shall likewise be rescinded or terminated if such Collection
Action is based solely on clause (i) or (ii) above.  Such five Business Day notice may be given
during the 90-day period described in clause (iii) above.  Upon the occurrence of any of the events in
clause (i) or (ii) above, the Trustee (in the case of clauses (i) and
(ii)) and the Company (in the case of clause (i)), shall immediately give
notice thereof to the Junior Creditors and any Junior Trustee.


 


(c)   Notwithstanding
the foregoing, (i) the restriction on the Junior Creditors and any Junior
Trustee taking any Collection Action described above shall immediately
terminate in the event of (A) a Proceeding with respect to any Obligor (so
long as such Proceeding was not initiated by or at the request of any Junior
Creditor or Junior Trustee or any other Person acting in concert with any
Junior Creditor or Junior Trustee) or (B) any payment or distribution of
any character, whether in cash, securities or other property of any Obligor or
any of its Subsidiaries, shall be made to or received by any creditor on any
indebtedness that in right of payment ranks equal with or junior or subordinate
to any Junior Debt, any agreement or other arrangement for such payment or
distribution is entered into or the Board of Directors (or any similar body) of
any Obligor or Subsidiary authorizes or approves such agreement, arrangement,
payment or distribution, (ii)  the Junior Creditor may file proofs of
claim in respect of the Junior Obligations against any Obligor and exercise all
voting rights in respect of the Junior Obligations in any Proceeding involving
any Obligor, and (iii) to the extent necessary (but only to such extent)
that the commencement of a legal action may be required in order to toll the
running of any applicable statute of limitation that might otherwise prevent
the Junior Creditor from making claims in respect of the Junior Obligations it
otherwise could, there shall be no restriction on the Junior Creditor taking
any Collection Action (but in such an event the Junior Creditor shall give
prior written notice to the Trustee and any cash, securities or other amounts
received by the Junior Creditor in connection with any such legal action shall
be subject to the terms and conditions of this Agreement).


 


2.6           Amendments to Junior Obligations.  Until the Senior Debt is indefeasibly paid in
full in cash and notwithstanding anything contained in the Junior Debt
Documents, the Indenture or the other Senior Debt Documents to the contrary,
the Junior Creditors and Junior Trustee shall not, without the prior written
consent of the Trustee, agree to any amendment to the Junior Debt Documents
that, (i) increases the maximum principal amount of the Junior Obligations
or rate of interest on any of the Junior Obligations (it being understood that
the imposition of a default rate of interest not to exceed 2% per annum over
the base contract rate contained in the Junior Debt Documents shall not be
restricted by this clause (i)), (ii) accelerates the dates (including
maturity dates, redemption dates or purchase dates) upon which payments of
principal or interest on the Junior Obligations are due, (iii) adds to the
extent not contained in the Senior Debt Documents, or makes 


 

















 


more
restrictive on the Obligors or any of them than any comparable provision in the
Senior Debt Documents, any default or event of default, any representation or
warranty, or any covenant (including the definitions applicable thereto) with
respect to the Junior Obligations set forth in the Junior Debt Documents
(except to the extent any such addition or change merely mirrors any addition
or change made to the Senior Debt Documents following the Issue Date but only (a) to
the extent, in the case where there is a margin between a “basket” or similar
amount in the Senior Debt Documents and the equivalent “basket” or amount under
the Junior Debt Documents, that such is less restrictive by a margin
corresponding (in percentage terms) to that reflected in the covenants in the
Senior Debt Documents and Junior Debt Documents as of the date hereof (but not
less than 20% in differential) and (b) in any other case, that such
addition or change is no more burdensome than the equivalent addition or change
to the Senior Debt Documents), (iv) changes the redemption, prepayment or
purchase provisions of the Junior Obligations, (v) alters the
subordination provisions with respect to the Junior Obligations, including
subordinating the Junior Obligations to any other debt, (vi) grants any
liens or security interests in any assets of any Obligor whether or not such
assets secure the Senior Debt, or (vii) changes or amends any other term
of the Junior Debt Documents if such change or amendment would materially
increase the obligations of the Obligor or confer additional material rights on
any Junior Creditor or Junior Trustee or any other holder of the Junior
Obligations in a manner adverse to the Obligors, the Trustee or the Holders.


 


2.7           Incorrect Payments.  If any payment or distribution on account of
the Junior Obligations not permitted to be made by any Obligor or received by
the Junior Creditors or Junior Trustee under this Agreement is received by any
Junior Creditor or Junior Trustee before all Senior Debt is indefeasibly paid
in full in cash, such payment or distribution shall not be commingled with any
asset of such Junior Creditor or Junior Trustee, shall be held in trust by such
Junior Creditor or Junior Trustee for the benefit of the Trustee and the
Holders and shall be promptly paid over to the Trustee, or the Holders’
designated representative, for application (in accordance with the Indenture)
to the payment of the Senior Debt then remaining unpaid, until all of the
Senior Debt is indefeasibly paid in full in cash.


 


3.     Sale,
Transfer; Additional Subsidiaries.


 


(a)   No Junior
Creditor shall assign or otherwise transfer all or any portion of the Junior
Obligations (a) without giving prior written notice of such action to the
Trustee, (b) unless prior to the consummation of any such action, the
transferee thereof shall execute and deliver to the Trustee an agreement
substantially identical to this Agreement, providing for the continued
subordination of the Junior Obligations to the Senior Debt as provided herein,
and for the continued effectiveness of all of the rights of the Trustee and the
Holders arising under this Agreement in respect of such Junior Obligations and (c) unless
such assignment or other transfer is permitted under the terms of the Junior
Debt Documents. Notwithstanding the failure to execute or deliver any such
agreement, the subordination effected hereby shall survive any assignment or
other transfer of all or any portion of the Junior Obligations, and the terms
of this Agreement shall be binding upon the successors and assigns of each
Junior Creditor, as provided in Section 14 below.  Nothing in this Section 3(a) shall
apply to any pledge of or grant of a participation in any Junior Obligations.


 

















 


(b)   If pursuant
to the Junior Debt Documents, a present or future Subsidiary of any Obligor
becomes a party to any Junior Guaranty, the Company shall cause such Subsidiary
to execute and deliver to the Trustee an agreement providing for the
subordination of the Junior Guaranty to the Senior Debt as provided herein and
for the continued effectiveness of all of the rights of the Trustee and the
Holders arising under this Agreement.


 


4.     Legends.  Until the Senior Debt is indefeasibly paid in
full, the promissory note(s) or other instrument(s) or agreements
evidencing or governing any Junior Debt at all times shall contain in a
conspicuous manner the following legend:


 


“This [Note/Agreement]
and the indebtedness [evidenced/governed] hereby are subordinate in the manner
and to the extent set forth in that certain [describe the agreement containing
these provisions] (the “Subordination Agreement”) to the Senior Debt (as
defined in such Subordination Agreement) and each [holder of this Note/creditor
pursuant to this agreement], by its [acceptance/execution and delivery] hereof,
shall be bound by the provisions of the Subordination Agreement.”


 


5.     Amendments
to Senior Debt.  The Trustee and the
Holders may at any time and from time to time without the consent of or notice
to any Junior Creditor or Junior Trustee, without incurring liability to any
Junior Creditor or Junior Trustee and without impairing or releasing the
obligations of any Junior Creditor or Junior Trustee under this Agreement,
change the manner or place of payment or extend the time of payment of or renew
or alter any Senior Debt, or amend in any manner any Senior Debt Document;
provided that no such renewal, alteration or amendment shall (a) increase
the principal amount of the Senior Debt in excess of the maximum principal
amount permitted by the definition of Senior Debt herein, (b) extend the
final maturity of the Senior Debt by more than one year, or (c) prohibit
or restrict the payment of principal of, interest on, or any other amounts
payable with respect to, the Junior Obligations, in a manner that is more
restrictive than the prohibitions and restrictions contained in the Senior Debt
Documents as in effect as of the date hereof and as set forth herein.


 


6.     Continued
Effectiveness of this Agreement.  The
terms of this Agreement, the subordination effected hereby, and the rights and
the obligations of each Junior Creditor or the Trustee and the Holders arising
hereunder, shall not be affected, modified or impaired in any manner or to any
extent by: (a) any amendment to the Indenture, any of the other Senior
Debt Documents or any of the Junior Debt Documents made in accordance with this
Agreement; (b) the invalidity or unenforceability of any of such
documents; or (c) any exercise or non-exercise of any right, power or
remedy under or in respect of the Senior Debt or the Junior Obligations or any
of the instruments or documents referred to in clause (a) above.  Each Junior Creditor hereby acknowledges that
the provisions of this Agreement are intended to be enforceable at all times,
whether before the commencement of, after the commencement of, in connection
with or premised on the occurrence of a Proceeding.


 


7.     Junior Default Notice; Notice of Senior
Default Cure.  The Junior Creditors
and the Obligors shall provide the Trustee with a Junior Default Notice
promptly upon the occurrence of 


 

















 


each Junior Default,
which notice shall specify the date of first occurrence thereof and the nature
of such Junior Default, and the Junior Creditors shall notify the Trustee
promptly in the event such Junior Default is cured or waived.  The Trustee and the Obligors shall provide
the Junior Creditors and any Junior Trustee with a Senior Default Notice
promptly upon the occurrence of each Senior Default, which notice shall specify
the date of first occurrence thereof and the nature of such Senior Default
(including whether it constitutes a Senior Non-Payment Default or a Senior
Payment Default), and the Trustee shall notify the Junior Creditors and any
Junior Trustee promptly in the event such Senior Default is cured or waived.


 


8.     Cumulative Rights; No Waivers.  Each and every right, remedy and power
granted to the Trustee or the Holders hereunder shall be cumulative and in
addition to any other right, remedy or power specifically granted herein, in
the Indenture or the other Senior Debt Documents or now or hereafter existing
in equity, at law, by virtue of statute or otherwise, and may be exercised by
the Trustee or the Holders, from time to time, concurrently or independently
and as often and in such order as the Trustee or the Holders may deem
expedient. Any failure or delay on the part of the Trustee or the Holders in
exercising any such right, remedy or power, or abandonment or discontinuance of
steps to enforce the same, shall not operate as a waiver thereof or affect the
rights of the Trustee or the Holders thereafter to exercise the same, and any
single or partial exercise of any such right, remedy or power shall not preclude
any other or further exercise thereof or the exercise of any other right,
remedy, or power, and no such failure, delay, abandonment or single or partial
exercise of the rights of the Trustee or the Holders hereunder shall be deemed
to establish a custom or course of dealing or performance among any of the
parties hereto.  Any failure or delay on
the part of any Junior Creditor or Junior Trustee in exercising any right,
remedy or power pursuant to the Junior Debt Documents because of the terms of
this Agreement, or any abandonment or discontinuance of steps to enforce the
same, shall not operate as a waiver thereof or affect the rights of the Junior
Creditors or Junior Trustee thereafter to exercise the same, and any single or
partial exercise of any such right, remedy or power shall not preclude any
other or further exercise thereof or the exercise of any other right, remedy,
or power, and no such failure, delay, abandonment or single or partial exercise
of the rights of the Junior Creditor or Junior Trustee because of the terms of
this Agreement shall be deemed to establish a custom or course of dealing or
performance among the Obligors and Junior Creditor or Junior Trustee.


 


9.     Amendments.  Any amendment (including a waiver) of any
provision of this Agreement shall not be effective in any event unless the same
is in writing and signed by the Trustee, each Obligor and each Junior Creditor
and Junior Trustee, and then such amendment shall be effective only in the
specific instance and for the specific purpose given. Any notice to or demand
on any Junior Creditor or Junior Trustee in any event not specifically required
of the Trustee hereunder shall not entitle any Junior Creditor or Junior
Trustee to any other or further notice or demand in the same, similar or other
circumstances unless specifically required hereunder.


 


10.   Additional
Documents and Actions.  Each Junior
Creditor and Junior Trustee at any time, and from time to time, after the
execution and delivery of this Agreement, promptly will execute and deliver
such further documents and do such further acts and things as the Trustee
reasonable may request that may be necessary in order to effect fully the
purposes of this Agreement.


 

















 


11.   Subrogation
to Rights of the Holder.  Subject to
the indefeasible payment in full in cash of all Senior Debt, the Junior
Creditors shall be subrogated to the rights of the Trustee and the Holders to
receive payments and distributions of cash, property and securities applicable
to the Senior Debt to the extent that distributions otherwise payable to the
Junior Creditors have been applied to the Senior Debt, until all amounts
payable under the Junior Obligations shall have been paid in full.


 


12.   Severability.  In the event that any provision of this
Agreement is deemed to be invalid, illegal or unenforceable by reason of the
operation of any law or by reason of the interpretation placed thereon by any
court or governmental authority, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby, and the affected provision shall be modified to the minimum
extent permitted by law so as most fully to achieve the intention of this
Agreement.


 


13.   Rules of
Construction.  Unless the context otherwise requires, “or”
is not exclusive, “including” is not limiting, and references to sections or
subsections refer to sections or subsections of this Agreement.  References in this Agreement to any
agreement, other document or law “as amended” or “as amended from time to time,”
or to amendments of any document (including any reference to amendments of any
Senior Debt Document, Junior Debt Document or this Agreement) or law, shall
include any amendments, supplements, replacements, renewals, waivers or other
modifications.  The terms “asset” and “property”
shall be construed to have the same meaning and both shall include all assets
and property of any kind, whether personal, real or mixed, tangible or
intangible.


 


14.   Successors and Assigns.  This Agreement shall inure to the benefit of,
and be binding upon, the successors and assigns of the Trustee, the Holders,
the Junior Creditors and any Junior Trustee and shall be binding upon the
successors and assigns of the Obligors.


 


15.   Defines Rights of Creditors.  The provisions of this Agreement are solely
for the purpose of defining the relative rights of the Junior Creditors and the
Trustee and the Holders and shall not be deemed to create any rights or
priorities in favor of any other Person, including any Obligor.  Nothing contained in this Agreement or in the
Junior Debt Documents or elsewhere is intended to or shall (a) impair, as
among any Obligor and the Junior Creditors, the obligation of such Obligor,
which is absolute and unconditional, to pay to the Junior Creditors the Junior
Obligations owing by such Obligor as and when the same shall become due and
payable and otherwise perform its obligations under the Junior Debt Documents,
all in accordance with the terms hereof and of the Junior Debt Documents; or (b) affect
the relative rights against any Obligor of the Junior Creditors and creditors
of such Obligor; or (c) prevent the Junior Creditors from exercising all
remedies otherwise permitted by applicable law upon default under the Junior
Debt Documents subject to the limitations upon such rights set forth under this
Agreement for the benefit of the Trustee and the Holders.  Nothing in this Agreement shall prevent the
occurrence of any Junior Default in the event any of the Obligors fails to
comply with any of the terms of the Junior Debt Documents, whether or not this
Agreement prohibits such Obligor from complying with such terms.


 

















 


16.   Headings.  The section headings used in this Agreement
are for convenience only and shall not affect the interpretation of any of the
provisions hereof.


 


17.   Termination.  This Agreement shall terminate upon the
indefeasible payment in full in cash of the Senior Debt.  Notwithstanding the foregoing, the Junior
Creditors shall be the beneficiaries of the rights set forth in Section 11
hereof until all Junior Obligations have been indefeasibly paid in full.


 


18.   Applicable Law.  THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND THIS AGREEMENT AND ALL CLAIMS AND CAUSES OF ACTION ARISING
OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK (OTHER THAN CHOICE OF LAW RULES THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION).


 


19.   CONSENT TO JURISDICTION.  EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY AGREES THAT THE ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND
HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS
FOR THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND
ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT FORUM.  EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN THIS AGREEMENT, SUCH SERVICE TO
BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.


 


20.   WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY
DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY AGREEMENTS OR
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  
EACH OF THE PARTIES HERETO (I) CERTIFIES THAT NO REPRESENTATIVE,
TRUSTEE OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (II) ACKNOWLEDGES THAT SUCH OTHER PARTIES HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.


 
















 


Exhibit H


 


FORM OF COLLATERAL AGREEMENT


 

















 




 


 





COLLATERAL
AGREEMENT


 


(New
Notes)


 


dated
as of


 


[              ],
2009


 


Among


 


FIBERTOWER
CORPORATION,


 


the
Subsidiaries of FIBERTOWER CORPORATION

from time to time party hereto,


 


 


and


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION,


as
Collateral Agent


 




 





 


THIS COLLATERAL AGREEMENT, AND THE RIGHTS OF THE PARTIES
HEREUNDER, ARE SUBJECT TO THE PROVISIONS OF THE AMENDED AND RESTATED
INTERCREDITOR AGREEMENT, DATED AS OF
[                                    ],
2009, AMONG THE TRUSTEE (AS DEFINED HEREIN) AND THE OTHER CREDITORS PARTY
THERETO FROM TIME TO TIME, AND THE GRANTORS (AS DEFINED HEREIN), AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
  Indenture

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II [Reserved]

  	
  6

  
	
   

  	
   

  
	
  ARTICLE III Security Interests in Personal Property

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
  Security Interest

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 3.02

  	
  Representations and Warranties

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 3.03

  	
  Covenants

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 3.04

  	
  Other Actions

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 3.05

  	
  Voting Rights; Dividends and Interest, Etc.

  	
  12

  
	
   

  	
   

  	
   

  
	
  SECTION 3.06

  	
  Additional Covenants Regarding Patent, Trademark and Copyright
  Collateral

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV Remedies

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01

  	
  Pledged Collateral

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 4.02

  	
  Uniform Commercial Code and Other Remedies

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 4.03

  	
  Application of Proceeds

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 4.04

  	
  Grant of License to Use Intellectual Property

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 4.05

  	
  Securities Act, Etc.

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 4.06

  	
  Intercreditor Agreements

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 4.07

  	
  Exercise of Control

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE V [Reserved]

  	
  18

  
	
   

  	
   

  
	
  ARTICLE VI Miscellaneous

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
  Notices

  	
  18

  



 


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Table of Contents


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 6.02

  	
  Survival of Agreement

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 6.03

  	
  Binding Effect; Several Agreement

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 6.04

  	
  Successors and Assigns

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 6.05

  	
  Collateral Agent’s Fees and Expenses; Indemnification

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 6.06

  	
  Collateral Agent Appointed Attorney-in—Fact

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 6.07

  	
  Applicable Law

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 6.08

  	
  Waivers; Amendment

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 6.09

  	
  WAIVER OF JURY TRIAL

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 6.10

  	
  Severability

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 6.11

  	
  Counterparts

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 6.12

  	
  Headings

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 6.13

  	
  Jurisdiction; Consent to Service of Process

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 6.14

  	
  Termination or Release

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 6.15

  	
  FCC Compliance

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 6.16

  	
  Additional Parties

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 6.17

  	
  Security Interest and Obligations Absolute

  	
  24

  
	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule I

  	
  Guarantors

  	
   

  
	
  Schedule II

  	
  Equity Interests; Pledged Debt Securities

  	
   

  
	
  Schedule III

  	
  Intellectual Property

  	
   

  
	
  Schedule IV

  	
  Offices for UCC Filings

  	
   

  
	
  Schedule V

  	
  UCC Information

  	
   

  
	
  Schedule VI

  	
  Commercial Tort Claims, Chattel Paper and Instruments

  	
   

  



 


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Table of Contents


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Supplement

  	
   

  
	
  Exhibit B-1

  	
  Form of Security Agreement – Patents

  	
   

  
	
  Exhibit B-2

  	
  Form of Security Agreement – Trademarks

  	
   

  
	
  Exhibit B-3

  	
  Form of Security
  Agreement – Copyrights

  	
   

  



 


H-iii

















 


COLLATERAL AGREEMENT dated as of
[              ],
2009 (this “Agreement”), among FIBERTOWER CORPORATION, a Delaware
limited liability company (the “Borrower”), the subsidiaries of the
Borrower from time to time party hereto, and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as collateral agent (in such capacity, the “Collateral Agent”).


 


PRELIMINARY STATEMENTS


 


A.            Reference
is made to the Indenture dated as of
[              ],
2009 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Indenture”), among the Borrower,
certain Subsidiaries of the Borrower party thereto, and Wells Fargo Bank
National Association, as Trustee (in such capacity, the “Trustee”),
governing those certain 9.00% Senior Secured Notes Due
20[    ] (the “Notes”).


 


B.            The
Holders (such term and each other capitalized term used but not defined in
these preliminary statements have the meanings given or ascribed to them in Article
I) are acquiring the Notes pursuant to the Mandatory Redemption and upon
the terms and conditions specified in the Indenture.  The Indenture requires, and terms of the
Mandatory Redemption contemplate, among other things, the execution and
delivery of this Agreement by the Borrower and each Guarantor.  Accordingly, the parties hereto agree as
follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01             Indenture.  (a) Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings set forth in the
Indenture.  The terms “Account”, “Commercial
Tort Claim”, “Chattel Paper”, “Deposit Account”, “Document”, “Equipment”, “General
Intangible”, “Payment Intangible”, “Good”, “Inventory”, “Letter-of-Credit Right”,
“Securities Account”, “Supporting Obligations” and “Proceeds”, and all other
terms defined in the New York UCC (as such term is defined herein) and not
defined in this Agreement have the meanings specified therein.  The term “Instrument” shall have the meaning
specified in Article 9 of the New York UCC.


 


(b)           The rules of construction specified in Section 1.04 of the
Indenture also apply to this Agreement.


 


(c)           Other
Defined Terms.  As used in
this Agreement, the following terms have the meanings specified below:


 


“Account Debtor” means any Person who is or
who may become obligated to any Grantor under, with respect to or on account of
an Account.


 


“After-Acquired Intellectual Property” shall
have the meaning assigned to such term in Section 3.06(e).


 


“Agreement” shall have the meaning assigned
to such term in the preamble.


 


H-1

















 


“Bankruptcy Default” shall mean an Event of
Default of the type described in Sections 7.01(8) and (9) of the
Indenture.


 


“Borrower” shall have the meaning assigned to
such term in the preamble.


 


“Closing Date” shall mean the [Mandatory
Redemption Date].


 


“Collateral” shall have the meaning assigned
to such term in Section 3.01.


 


“Collateral Agent” shall have the meaning
assigned to such term in the preamble.


 


“Copyright License” shall mean any written
agreement, now or hereafter in effect, granting any right to any third person
under any Copyright now or hereafter owned by any Grantor or that such Grantor
otherwise has the right to license, or granting any right to any Grantor under
any copyright now or hereafter owned by any third party, and all rights of such
Grantor under any such agreement.


 


“Copyrights” shall mean all of the following
now owned or hereafter acquired by any Grantor: (a) all copyright rights
in any work subject to the copyright laws of the United States, whether as
author, assignee, transferee or otherwise, (b) all registrations and
applications for registration of any such copyright in the United States,
including registrations, recordings, supplemental registrations and pending
applications for registration in the United States Copyright Office (or any
successor office), including those listed on Schedule III and (c) all
causes of action arising prior to or after the date hereof for infringement of
any Copyright or unfair competition regarding the same.


 


“Domain Names” shall mean all Internet domain
names and associated URL addresses in or to which any Grantor now or hereafter
has any right, title or interest.


 


“Excluded Property” shall mean:


 


(a)           Excluded Assets (only for so long as such assets or rights
constitute Excluded Assets);


 


(b)           any voting Equity Interests in any Foreign Subsidiary in
excess of 66% of all voting Equity Interests in such Foreign Subsidiary;


 


(c)           any FCC License, to the extent, but only to the extent,
that any law, regulation, permit, order, policy, decision or decree of any
governmental authority in effect at the time applicable thereto prohibits the
creation of a security interest therein, provided, however, that (i) the
right to receive any payment of money in respect of such FCC License
(including, without limitation, general intangibles for money due or to become
due), (ii) any Proceeds, products, offspring, accessions, rents, profits,
income or benefits of any FCC License, and (iii) to the maximum extent
permitted by law, all rights incident or appurtenant to the FCC Licenses, shall
not constitute Excluded Property, but shall constitute Collateral hereunder, provided
further, however, that in the event that such law, regulation,
permit, order, policy, decision or decree shall be amended, modified or
interpreted to permit (or shall be replaced with another rule or regulation, or
any other law, rule or regulation is adopted, which would permit) the creation
of 


 


H-2

















 


a security interest in such FCC License, such
FCC License will automatically be deemed to be a part of the Collateral (and
shall cease to be Excluded Property).


 


Furthermore, no term used in the definition
of Collateral (or any component definition thereof) shall be deemed to include
any Excluded Property.


 


“Federal Securities Laws” shall have the
meaning assigned to such term in Section 4.05.


 


“Foreign Subsidiary” shall mean (i) a
Subsidiary treated as a corporation for U.S. federal income tax purposes that
is formed or incorporated outside of the United States, (ii) a Subsidiary
substantially all of whose assets consist, directly or indirectly, of
Subsidiaries described in clause (i) of this definition, (iii) an
entity treated as disregarded for U.S. federal income tax purposes that owns
more than 66% of the voting stock of a Subsidiary described in clauses (i) or
(ii) of this definition or (iv) a Subsidiary of any of the foregoing.


 


“Grantors” shall mean the Borrower and the
Guarantors.


 


“Indenture” shall have the meaning assigned
to such term in the preliminary statement.


 


“Intellectual Property” shall mean all
intellectual and similar property of any Grantor of every kind and nature now
owned or hereafter acquired by such Grantor, including inventions, designs,
Patents, Patent Licenses, Copyrights, Copyright Licenses, Trademarks, Trademark
Licenses, trade secrets, confidential or proprietary technical and business
information, know-how, software and databases and all other proprietary
information, including but not limited to Domain Names, and all embodiments or
fixations thereof and related documentation, registrations and franchises, and
all additions, improvements and accessions to, and books and records describing
or used in connection with, any of the foregoing.


 


“Intercreditor Agreement” shall mean that
certain Amended and Restated Intercreditor Agreement, dated as of
[                                    ],
2009, among the Trustee and the other creditors party thereto from time to
time, and the Grantors, as amended or otherwise modified from time to time in
accordance with the provisions thereof.


 


“Investment Property” shall mean (a) all
“investment property” as such term is defined in the New York UCC (other than
Excluded Property) and (b) whether or not constituting “investment
property” as so defined, all Pledged Debt Securities and Pledged Stock.


 


“Holders” shall mean, collectively, the
holders of the Notes.


 


“Majority Holders” shall mean the holders of a
majority in aggregate principal amount of the Notes outstanding at any time of
determination.


 


“Note Document Obligations” shall mean the
unpaid principal of and interest on the Notes and all other Note Obligations
and other obligations and liabilities of the Borrower or any Guarantor to the
Trustee, Collateral Agent, or any Holder, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may 


 


H-3

















 


arise under, out of, or in
connection with, the Indenture, any other Note Document and whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including all fees, charges and disbursements of counsel to the
Trustee, Collateral Agent, or any Holder that are required to be paid pursuant
hereto or any other Note Document and including interest accruing after the
maturity of the Notes and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower or a Guarantor, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) or
otherwise.


 


“New York UCC” shall mean the Uniform
Commercial Code as from time to time in effect in the State of New York.


 


“Notes” shall have the meaning assigned to
such term in the preliminary statement.


 


“Obligations” shall mean the Note Obligations
and all other Note Document Obligations, whether outstanding on the date hereof
or arising from time to time following the date of this Agreement.


 


“Patent License” shall mean any written
agreement, now or hereafter in effect, granting to any third person any right
to make, use or sell any invention on which a Patent, now or hereafter owned by any
Grantor or that any Grantor otherwise has the right to license, is in
existence, or granting to any Grantor any right to make, use or sell any
invention on which a patent, now or hereafter owned by any third person, is in
existence, and all rights of any Grantor under any such agreement.


 


“Patents” shall mean all of the following now
owned or hereafter acquired by any Grantor: (a) all letters patent of the
United States, all registrations and recordings thereof, and all applications
for letters patent of the United States, including registrations, recordings
and pending applications in the United States Patent and Trademark Office (or
any successor office), including those listed on Schedule III, and (b) all
reissues, continuations, divisions, continuations-in-part, renewals or
extensions thereof, and the inventions disclosed or claimed therein, including
the right to make, use and/or sell the inventions disclosed or claimed therein.


 


“Pledged Collateral” shall mean (a) the
Pledged Stock, (b) the Pledged Debt Securities, (c) subject to Section
3.05, all payments of principal or interest, dividends, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of, in exchange for or upon the conversion of, and all
other Proceeds received in respect of, the securities referred to in clauses (a) and
(b) above, (d) subject to Section 3.05, all rights of such
Grantor with respect to the securities and other property referred to in
clauses (a), (b) and (c) above and (e) all Proceeds of any of
the foregoing.


 


“Pledged Debt Securities” shall mean (a) the
debt securities and promissory notes held by any Grantor on the date
hereof (including all such debt securities and promissory notes listed opposite
the name of such Grantor on Schedule II), (b) any debt securities
or promissory notes in the future issued to such Grantor and (c) any other
instruments evidencing the debt securities described above, if any.


 


H-4

















 


“Pledged Securities” shall mean any
promissory notes, stock certificates or other securities now or hereafter
included in the Pledged Collateral, including all certificates, instruments or
other documents representing or evidencing any Pledged Collateral.


 


“Pledged Stock” shall mean, (a) to the
extent the same do not constitute Excluded Property, (i) the Equity
Interests owned by any Grantor (including all such Equity Interests listed on Schedule
II) and (ii) any other Equity Interest obtained in the future by such
Grantor and (b) the certificates, if any, representing all such Equity
Interests.


 


“Secured Parties” shall mean (a) the
Holders, (b) the Trustee, (c) the Collateral Agent, (d) the
beneficiaries of each indemnification obligation undertaken by any Obligor
under any Note Document and (e) the permitted successors and assigns of
each of the foregoing.


 


“Security Interest” shall have the meaning
assigned to such term in Section 3.01(a).


 


“Termination Date” shall mean the date upon
which the Notes, together with all interest and other non-contingent
Obligations, have been paid in full in cash.


 


“Trademark License” shall mean any written
agreement, now or hereafter in effect, granting to any third person any right
to use any trademark now or hereafter owned by any Grantor or that any Grantor
otherwise has the right to license, or granting to any Grantor any right to use
any trademark now or hereafter owned by any third person, and all rights of any
Grantor under any such agreement.


 


“Trademarks” shall mean all of the following
now owned or hereafter acquired by any Grantor: (a) all trademarks,
service marks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, trade dress, logos, other source or
business identifiers, designs and general intangibles of like nature, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all registration and recording applications filed in connection
therewith, including registrations and registration applications in the United
States Patent and Trademark Office (or any successor office), and all
extensions or renewals thereof, including those listed on Schedule III, (b) all
goodwill associated therewith or symbolized thereby, (c) all other assets,
rights and interests that uniquely reflect or embody such goodwill and (d) all
causes of action arising prior to or after the date hereof for infringement of
any trademark or unfair competition regarding the same.


 


“Trustee” shall have the meaning assigned to
such term in the preliminary statements.


 


H-5
















 


ARTICLE II


 


[Reserved]


 


ARTICLE III


 


Security Interests in
Personal Property


 


SECTION 3.01             Security
Interest.  (a) As
security for the payment or performance, as the case may be, in full of the
Obligations, each Grantor hereby assigns and pledges to the Collateral Agent,
its successors and permitted assigns, for the benefit of the Secured Parties,
and hereby grants to the Collateral Agent, its successors and permitted
assigns, for the benefit of the Secured Parties, a security interest and lien
(the “Security Interest”), in and on all right, title or interest in or
to any and all of the following assets and properties now owned or at any time
hereafter acquired by such Grantor or in which such Grantor now has or at any
time in the future may acquire any right, title or interest (collectively, the “Collateral”):


 


(i)            all Accounts;


 


(ii)           all Commercial Tort Claims set forth on Schedule VI
hereto;


 


(iii)          all Chattel Paper;


 


(iv)          all Deposit Accounts;


 


(v)           all Documents;


 


(vi)          all Equipment;


 


(vii)         all FCC Licenses, to the extent permitted by applicable law
(it being understood and acknowledged that as of the date hereof applicable law
does not permit the grant of a security interest directly in an FCC License);


 


(viii)        all General Intangibles;


 


(ix)           all Payment Intangibles;


 


(x)            all Goods;


 


(xi)           all Instruments;


 


(xii)          all Inventory;


 


(xiii)         all Investment Property;


 


(xiv)        all Intellectual Property;


 


(xv)         all Letter-of-Credit Rights;


 


H-6

















 


(xvi)        all Pledged Collateral;


 


(xvii)       all books and records pertaining to the
Collateral;


 


(xviii)      all Supporting Obligations; and


 


(xix)         to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing.


 


Notwithstanding the foregoing, the Security
Interest shall not extend to, and the term “Collateral” (and any component
definition thereof) shall not include, any Excluded Property.


 


(b)           Each Grantor hereby irrevocably authorizes the Collateral
Agent at any time and from time to time to file in any relevant jurisdiction
and in any relevant office any (i) financing statements with respect to
the Collateral or any part thereof and amendments thereto that (A) indicate
the Collateral as all assets of such Grantor or words of similar effect, and (B) contain
the information required by Article 9 of the Uniform Commercial Code of
each applicable jurisdiction for the filing of any financing statement or
amendment, including whether such Grantor is an organization, the type of
organization and any organizational identification number issued to such
Grantor and (ii) in addition to the foregoing and to the documents
referred to below, all other documents as may be necessary or appropriate for
the purpose of perfecting, confirming, continuing, enforcing or protecting the
Security Interest granted by each Grantor, without the signature of any Grantor
if permitted by applicable law, and naming any Grantor or the Grantors as
debtors and the Collateral Agent as secured party, together with all
information necessary or appropriate to be filed therewith.  Each Grantor agrees to provide such
information to the Collateral Agent promptly upon written request.  The Collateral Agent agrees, upon request by
the Borrower and at its expense, to furnish copies of such filings and other
documents to the Borrower.


 


(c)           The Collateral Agent is further irrevocably authorized to
file with the United States Patent and Trademark Office or United States
Copyright Office (or any successor office) such documents as may be necessary
for the purpose of perfecting, confirming, continuing, enforcing or protecting
the Security Interest granted by each Grantor, without the signature of any
Grantor, and naming any Grantor or the Grantors as debtors and the Collateral
Agent as secured party.  The Collateral
Agent agrees, upon request by the Borrower and at its expense, to furnish
copies of such filings to the Borrower.


 


(d)           The Security Interest is granted as security only and,
except as otherwise required by applicable law, shall not subject the Collateral
Agent or any other Secured Party to, or in any way alter or modify, any
obligation or liability of any Grantor with respect to or arising out of the
Collateral.  Nothing contained in this
Agreement shall be construed to make the Collateral Agent or any other Secured
Party liable as a shareholder of any corporation, as a member of any limited
liability company or as a partner of any partnership, neither the Collateral
Agent nor any other Secured Party by virtue of this Agreement or otherwise
(except as referred to in the following sentence) shall have any of the duties,
obligations or liabilities of a member of any limited liability company or as a
partner in any partnership.  The parties
hereto expressly agree that, unless the Collateral Agent shall exercise its
rights and remedies and become the 


 


H-7

















 


owner of Pledged Collateral consisting of a
limited liability company interest or a partnership interest pursuant hereto,
this Agreement shall not be construed as creating a partnership or joint
venture among the Collateral Agent, any other Secured Party, any Grantor and/or
any other Person.


 


SECTION 3.02             Representations and Warranties.  The Grantors jointly and severally represent
and warrant to the Collateral Agent and the Secured Parties that:


 


(a)           Each Grantor has good and valid rights in and title to the
Collateral with respect to which it has purported to grant a Security Interest
hereunder and has full power and authority to grant to the Collateral Agent,
for the benefit of the Secured Parties, the Security Interest in such
Collateral pursuant hereto and to execute, deliver and perform its obligations
in accordance with the terms of this Agreement.


 


(b)           Uniform Commercial Code financing statements containing a
description of the Collateral have been prepared by the Collateral Agent based
upon the information provided to the Collateral Agent and the Secured Parties
by the Grantors for filing in each governmental office specified on Schedule IV  hereof (or
specified by notice from the Borrower to the Collateral Agent after the Closing
Date in the case of filings required by Section 5.20 of the Indenture),
which are all the filings (other than filings required to be made in the United
States Patent and Trademark Office and the United States Copyright Office in
order to perfect the Security Interest in the Collateral consisting of United
States Patents, Trademarks and Copyrights) that are necessary as of the Closing
Date (or after the Closing Date, in the case of filings, recordings or
registrations required by Section 5.20 of the Indenture) to establish a
legal, valid and perfected security interest in favor of the Collateral Agent
(for the benefit of the Secured Parties) in respect of all Collateral in which the
Security Interest may be perfected by filing, recording or registration in the
United States (or any political subdivision thereof).  Each Grantor represents and warrants that, to
the extent the Collateral consists of United States Patents, United States
registered Trademarks and United States registered Copyrights, a fully executed
agreement in the form hereof or, alternatively, each applicable short form
security agreement in the forms attached hereto as Exhibits B-1, B-2 and B-3,
and containing a description of all such Collateral has been or will be
delivered to the Collateral Agent for recording by the United States Patent and
Trademark Office and the United States Copyright Office pursuant to 35 U.S.C.
§261, 15 U.S.C. §1060 or 17 U.S.C. §205 and the regulations thereunder, as
applicable, to establish a legal, valid and perfected security interest in
favor of the Collateral Agent (for the benefit of the Secured Parties) in
respect of all such Collateral.


 


(c)           The Security Interest constitutes (i) a legal and
valid security interest in all Collateral securing the payment and performance
of the Obligations, (ii) subject to the filings described in Section 3.02(b)(i), a perfected
security interest in all Collateral in which a security interest may be perfected
by filing, recording or registering a financing statement or analogous document
in the United States (or any state thereof) pursuant to the Uniform Commercial
Code and (iii) subject to the filings described in Section 3.02(b),
a security interest that shall be perfected in all Collateral in which a
security interest may be perfected upon the receipt and recording of this
Agreement (or the applicable short form security agreement) with the United
States Patent and Trademark Office and the United States Copyright Office, as
applicable, within the three month period (commencing as of the date hereof)
pursuant to 35 U.S.C. § 261 or 


 


H-8

















 


15 U.S.C. § 1060 or the one month period
(commencing as of the date hereof) pursuant to 17 U.S.C. § 205.  The Security Interest is and shall be prior
to any other Lien on any of the Collateral, other than Permitted Senior Liens.


 


(d)           Schedule II correctly sets forth as of the Closing
Date the percentage of the issued and outstanding shares or units of each class
of the Equity Interests of the issuer thereof represented by the Pledged Stock
and includes all Equity Interests, debt securities and promissory notes
required to be pledged hereunder.


 


(e)           The Pledged Stock and Pledged Debt Securities have been
duly and validly authorized and issued by the issuers thereof and (i) in
the case of Pledged Stock issued by a corporation, are fully paid and
nonassessable and (ii) in the case of Pledged Debt Securities issued by a
Grantor or a Subsidiary of a Grantor, are legal, valid and binding obligations
of the issuers thereof, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other loss affecting creditors’ rights generally
and general principles of equity or at law.


 


(f)            Schedule V correctly sets forth as of the Closing
Date (i) the exact legal name of each Grantor, as such name appears in its
respective certificate or articles of incorporation or formation, (ii) the
jurisdiction of organization of each Grantor, (iii) the mailing address
and, if different, the chief executive office address of each Grantor, (iv) the
organizational identification number, if any, issued by the jurisdiction of
organization of each Grantor, (v) the identity or type of organization of
each Grantor and (vi) the Federal Taxpayer Identification Number, if any,
of each Grantor.  As of the Closing Date,
Schedule V hereto sets forth a list of any other corporate or
organizational names each Grantor has had in the past four months, together with
the date of the relevant change.  As of
the Closing Date, Schedule V hereto sets forth a list of all other names
used by each Grantor, or any other business or organization to which each
Grantor became the successor by merger, consolidation, acquisition or change in
form, nature or jurisdiction of organization or otherwise at any time in the
last four months.  Except as set forth in
Schedule V, as of the Closing Date no Grantor has changed its
jurisdiction of organization at any time during the past four months.


 


(g)           The Collateral is owned or, in the case of FCC Licenses,
held by the Grantors free and clear of any Lien, except for Permitted Liens.


 


(h)           Notwithstanding the foregoing or anything else in this
Agreement to the contrary, no representation, warranty or covenant is made with
respect to the creation or perfection of a security interest in Collateral to
the extent such creation or perfection would require (i) any filing other
than a filing in the United States of America, any state thereof and the
District of Columbia, or (ii) other action under the laws of any
jurisdiction other than the United States of America, any state thereof and the
District of Columbia.


 


(i)            As of the Closing Date, no Grantor holds (i) any
Commercial Tort Claims or (ii) any interest in any Chattel Paper or
Instruments, in each case, in an amount in excess of $250,000 individually,
except as described in Schedule VI hereto.


 


(j)            Each Grantor represents and warrants that the Trademarks,
Patents and Copyrights listed on Schedule III include all United States
federal registrations and pending 


 


H-9

















 


applications for Trademarks, Patents and
Copyrights, all as in effect as of the date hereof, that such Grantor owns as
of the date hereof.


 


SECTION 3.03             Covenants.


 


(a)           Each Grantor shall, at its own expense, take all
commercially reasonable actions necessary to defend its right, interest and
title in and to the Collateral against all persons and to defend the Security
Interest of the Collateral Agent in the Collateral and the priority thereof
against any Lien that does not constitute a Permitted Senior Lien.


 


(b)           Each Grantor agrees, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further instruments
and other documents and take all actions necessary to obtain, preserve, protect
and perfect the Security Interest and the rights and remedies created hereby,
including the payment of any fees and Taxes required in connection with the
execution and delivery of this Agreement, the granting of the Security Interest
and the filing of any financing or continuation statements or other documents
in connection herewith or therewith, including but not limited to any actions
as the Collateral Agent may from time to time reasonably deem necessary.


 


(c)           If an Event of Default has occurred and is continuing, at
its option, but only following 5 Business Days’ written notice to each Grantor
of its intent to do so, the Collateral Agent may discharge past due Taxes, assessments,
charges, fees or Liens at any time levied or placed on the Collateral that (i) constitute
a Permitted Senior Lien or (ii) do not constitute a Permitted Lien, and
may pay for the maintenance and preservation of the Collateral to the extent
any Grantor fails to do so as required by the Indenture, and each Grantor
jointly and severally agrees to reimburse the Collateral Agent within 10 days
after demand for any reasonable payment made or any reasonable expense incurred
by the Collateral Agent pursuant to the foregoing authorization; provided,
however, that nothing in this paragraph shall be interpreted as excusing
any Grantor from the performance of, or imposing any obligation on the
Collateral Agent or any Secured Party to cure or perform, any covenants or
other promises of any Grantor with respect to Taxes, assessments, charges, fees
or Liens and maintenance as set forth herein or in the other Note Documents.


 


(d)           Each Grantor shall remain liable to observe and perform
all conditions and obligations to be observed and performed by it under each
contract, agreement or instrument relating to the Collateral, all in accordance
with the terms and conditions thereof.


 


SECTION 3.04             Other Actions.  In order to further ensure the attachment,
perfection and priority of, and the ability of the Collateral Agent to enforce,
the Security Interest in the Collateral, each Grantor agrees, in each case at
such Grantor’s own expense, to take the following actions with respect to the
following Collateral:


 


(a)           Instruments
and Tangible Chattel Paper.  If any Grantor shall at
any time hold or acquire any Instruments or Tangible Chattel Paper in excess of
$100,000 individually or in the aggregate when considered together with
Instruments or Tangible Chattel Paper, as the case may be, arising from related
transactions, such Grantor shall, within 30 days following such acquisition (or
such longer period as to which the Collateral Agent may consent 


 


H-10

















 


in writing), endorse, assign and deliver the
same to the Collateral Agent, accompanied by such undated instruments of
endorsement, transfer or assignment duly executed in blank as the Collateral
Agent may from time to time reasonably specify.


 


(b)           Investment
Property.  Subject to the
terms hereof, if any Grantor shall at any time hold or acquire any Certificated
Securities, such Grantor shall, within 30 days following such acquisition (or
such longer period as to which the Collateral Agent may consent in writing),
endorse, assign and deliver the same to the Collateral Agent, accompanied by
such undated instruments of transfer or assignment duly executed in blank as
the Collateral Agent may from time to time reasonably specify.  Each delivery of Pledged Securities shall be
accompanied by a schedule describing the securities, which schedule shall be
attached hereto as Schedule II and made a part hereof and supplement any
prior schedule so delivered; provided that failure to attach any such
schedule hereto shall not affect the validity of such pledge of such Pledged
Securities and shall not in and of itself result in any Default or Event of
Default.  Each certificate representing
an interest in any limited liability company or limited partnership controlled
by any Grantor and pledged under Section 3.01 shall be physically
delivered to the Collateral Agent in accordance with the terms of the Indenture
and endorsed to the Collateral Agent or endorsed in blank.


 


(c)           Commercial
Tort Claims. 
If any Grantor shall at any time hold or acquire a
Commercial Tort Claim in excess of $250,000 individually, the Grantor shall,
within 30 days following such acquisition (or such longer period as to which
the Collateral Agent may consent in writing), notify the Collateral Agent
thereof in a writing signed by such Grantor including a summary description of
such claim and grant to the Collateral Agent, for the benefit of the Secured
Parties, in such writing a security interest therein and in the proceeds
thereof, all upon the terms of this Agreement, with such writing to be in form
and substance reasonably satisfactory to the Collateral Agent.


 


(d)           Security
Interests in Property of Account Debtors. 
If at any time any Grantor shall take a security interest in
any property of an Account Debtor or any other Person the value of which equals
or exceeds $100,000 to secure payment and performance of an Account, such
Grantor shall promptly assign such security interest to the Collateral Agent
for the benefit of the Secured Parties. 
Such assignment need not be filed of public record unless necessary to
continue the perfected status of the security interest against creditors of and
transferees of the Account Debtor or other Person granting the security
interest.


 


(e)           Securities
Accounts; Deposit Accounts.  The
Grantors shall enter into account control agreements governing each Securities
Account and Deposit Account constituting Collateral, granting to the Collateral
Agent Control over such Securities Accounts and Deposit Accounts, such
agreements to be in form and substance reasonably satisfactory to the
Collateral Agent, and the Grantors shall have no Securities Account or Deposit
Account not subject to such an account control agreement, in each case except
for (i) Deposit Accounts and Securities Accounts, the aggregate amount on
deposit in which does not at any time exceed $100,000, and (ii) payroll
and tax withholding accounts maintained as such in the ordinary course of
business.


 


H-11

















 


SECTION 3.05             Voting
Rights; Dividends and Interest, Etc. 
Unless and until an Event of Default shall have occurred and be
continuing and the Collateral Agent shall have given the Grantors notice that
it is to exercising its rights or remedies under this Agreement:


 


(a)           Each Grantor shall be entitled to exercise any and all
voting and/or other consensual rights and powers inuring to an owner of the
Pledged Collateral or any part thereof for any purpose consistent with the
terms of this Agreement, the Indenture and the other Note Documents and applicable
law.


 


(b)           The Collateral Agent shall execute and deliver to each
Grantor, or cause to be executed and delivered to each Grantor, all such
proxies, powers of attorney and other instruments as such Grantor may
reasonably request for the purpose of enabling such Grantor to exercise the
voting and/or consensual rights and powers it is entitled to exercise pursuant
to paragraph (a) above.


 


(c)           Each Grantor shall be entitled to receive and retain any
and all dividends, interest, principal and other distributions paid on or
distributed in respect of the Pledged Collateral to the extent and only to the
extent that such dividends, interest, principal and other distributions are not
prohibited by, and are otherwise paid or distributed in accordance with, the
terms and conditions of the Indenture, this Agreement (including without
limitation Section 4.01 hereof), the other Note Documents and
applicable law; provided  that any noncash dividends,
interest, principal or other distributions that would constitute Pledged
Collateral, shall be and become part of the Pledged Collateral, and, if
received by any Grantor, shall be held in trust for the benefit of the
Collateral Agent and the Secured Parties and shall be delivered to the
Collateral Agent in the same form as so received (with any necessary
endorsement reasonably requested by the Collateral Agent) within 30 days
following the receipt thereof (or such longer period as to which the Collateral
Agent may consent in writing).


 


SECTION 3.06             Additional
Covenants Regarding Patent, Trademark and Copyright Collateral.  (a) Each
Grantor agrees that it will not, and will use commercially reasonable efforts
to not permit any of its licensees to, do any act, or omit to do any act,
whereby any Patent that is material to the conduct of such Grantor’s business
may become invalidated or dedicated to the public.


 


(b)           Each Grantor (either itself or through its licensees or
its sublicensees) will, for each Trademark material to the conduct of such
Grantor’s business, use commercially reasonable efforts to maintain such
Trademark in full force free from any claim of abandonment or invalidity for
non-use.


 


(c)           Each Grantor (either itself or through its licensees or
sublicensees) will, for each work covered by a material Copyright, use commercially
reasonable efforts to continue to publish, reproduce, display, adopt and
distribute the work with appropriate copyright notice as necessary to establish
and preserve its rights under applicable copyright laws.


 


(d)           Each Grantor will take all reasonable and necessary steps
that are consistent with the practice in any proceeding before the United
States Patent and Trademark Office, United States Copyright Office or any
office or agency in any political subdivision of the 


 


H-12

















 


United States, to maintain and pursue each
material application relating to the Patents, Trademarks and/or Copyrights (and
to obtain the relevant grant or registration) and to maintain each issued
Patent and each registration of the Trademarks and Copyrights that is material
to the conduct of any Grantor’s business, including timely filings of
applications for renewal, affidavits of use, affidavits of incontestability and
payment of maintenance fees, and, if consistent with good business judgment, to
initiate opposition, interference and cancellation proceedings against third
parties.


 


(e)           Each Grantor agrees that, should it obtain an ownership or
other interest in any United States federal registrations and pending United
States federal applications for Trademarks, Patents and Copyrights after the
Closing Date (“After-Acquired Intellectual Property”) (i) the
provisions of this Agreement shall automatically apply thereto, and (ii) any
such After-Acquired Intellectual Property and, in the case of Trademarks, the
goodwill symbolized thereby, shall automatically become part of the Collateral
subject to the terms and conditions of this Agreement.  Within 30 days following such acquisition (or
such longer period as to which the Collateral Agent may consent in writing),
the relevant Grantor shall sign and deliver to the Collateral Agent an
appropriate short form security agreement (of the type described in the last
sentence of Section 3.02(b)) with respect to such After-Acquired
Intellectual Property, to the extent that such After-Acquired Intellectual
Property is not covered by any previous such short form security agreement
signed and delivered by it.


 


ARTICLE IV


 


Remedies


 


SECTION 4.01             Pledged Collateral.  (a) Upon the occurrence and during the
continuance of an Event of Default and with notice to the Borrower, the
Collateral Agent, on behalf of the Secured Parties, shall have the right (in
its sole and absolute discretion) to hold the Pledged Securities in its own
name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the
name of the applicable Grantor, endorsed or assigned in blank or in favor of
the Collateral Agent.  Upon the
occurrence and during the continuance of an Event of Default and with notice to
the relevant Grantor, the Collateral Agent shall at all times have the right to
exchange the certificates representing any Pledged Securities for certificates
of smaller or larger denominations for any purpose consistent with this
Agreement.


 


(b)           Upon the occurrence and during the continuance of an Event
of Default, after the Collateral Agent shall have notified the Grantors in
writing of the suspension of their rights under paragraph (c) of Section 3.05,
then all rights of any Grantor to dividends, interest, principal or other
distributions that such Grantor is authorized to receive pursuant to paragraph (c) of
Section 3.05 shall cease, and all such rights shall thereupon
become vested in the Collateral Agent, which shall have the sole and exclusive
right and authority to receive and retain such dividends, interest, principal
or other distributions.  All dividends,
interest, principal or other distributions received by any Grantor contrary to
the provisions hereof and of Section 3.05 shall be held in trust
for the benefit of the Collateral Agent, shall be segregated from other
property or funds of such Grantor and shall be forthwith delivered to the
Collateral Agent upon demand in the same form as so received (with any
necessary endorsement or instrument of assignment).  Any and all money and other property paid
over to or received by the Collateral 


 


H-13

















 


Agent pursuant to the provisions of this
paragraph (b) shall be retained by the Collateral Agent in an account
established by the Collateral Agent upon receipt of such money or other
property and shall be applied in accordance with the provisions of Section 4.03.  After all Events of Default have been cured
or waived, the Collateral Agent shall promptly repay to each applicable Grantor
(without interest) all dividends, interest, principal or other distributions
that such Grantor would otherwise be permitted to retain pursuant to the terms
of paragraph (c) of Section 3.05 and that remain in such
account.


 


(c)           Subject to Section 6.15, upon the occurrence
and during the continuance of an Event of Default and with notice to the
Borrower, all rights of any Grantor to exercise the voting and consensual
rights and powers it is entitled to exercise pursuant to paragraph (a) of Section 3.05,
and the obligations of the Collateral Agent under paragraph (b) of Section 3.05,
shall cease, and all such rights shall thereupon become vested in the
Collateral Agent, which shall have the sole and exclusive right and authority
to exercise such voting and consensual rights and powers and each Grantor
shall, at its sole cost and expense, from time to time execute and deliver to
the Collateral Agent appropriate instruments as the Collateral Agent may
reasonably request in order to permit the Collateral Agent to exercise the
voting and other rights which it may be entitled to exercise and to receive all
distributions which it may be entitled to receive; provided, however,
that, unless otherwise directed by the Majority Holders, the Collateral Agent shall
have the right from time to time following and during the continuance of an
Event of Default and the provision of the notice referred to above to permit
the Grantors to exercise such rights.  To
the extent the notice referred to in the first sentence of this paragraph (c) has
been given, after all Events of Default have been cured or waived, each Grantor
shall have the exclusive right to exercise the voting and/or consensual rights
and powers that such Grantor would otherwise be entitled to exercise pursuant
to the terms of paragraph (a) of Section 3.05, and the
Collateral Agent shall again have the obligations under paragraph (b) of Section 3.05.


 


(d)           Notwithstanding anything to the contrary contained in this
Section 4.01, if a Bankruptcy Default shall have occurred and be
continuing, the Collateral Agent shall not be required to give any notice
referred to in Section 3.05 or this Section 4.01 in
order to exercise any of its rights described in said Sections, and the
suspension of the rights of each of the Grantors under said Sections shall be
automatic upon the occurrence of such Bankruptcy Default.


 


SECTION 4.02             Uniform Commercial Code and Other
Remedies.  Upon the
occurrence and during the continuance of an Event of Default, each Grantor
agrees to deliver each item of Collateral to the Collateral Agent on demand,
and it is agreed that the Collateral Agent shall have the right to take any of
or all the following actions at the same or different times: (a) with
respect to any Collateral consisting of Intellectual Property, on demand, to
cause the Security Interest to become an assignment, transfer and conveyance of
any of or all such Collateral by the applicable Grantor to the Collateral
Agent, or to license or sublicense, whether general, special or otherwise, and
whether on an exclusive or nonexclusive basis, any such Collateral throughout
the world on such terms and conditions and in such manner as the Collateral
Agent shall determine (other than in violation of any then-existing licensing
arrangements), (b) with or without legal process and with or without prior
notice or demand for performance, to take possession of the Collateral without
breach of the peace, and subject to the terms of any related lease agreement,
to enter any premises where the Collateral may be located for the purpose of
taking possession of or removing the Collateral, and (c) generally, to
exercise 


 


H-14

















 


any
and all rights afforded to a secured party under the Uniform Commercial Code of
any relevant jurisdiction or other applicable law.  Without limiting the generality of the
foregoing, upon the occurrence and during the continuance of an Event of
Default, each Grantor agrees that the Collateral Agent shall have the right,
subject to the mandatory requirements of applicable law, to sell or otherwise
dispose of all or any part of the Collateral at a public or private sale or at
any broker’s board or on any securities exchange upon such commercially
reasonable terms and conditions as it may deem advisable, for cash, upon credit
or for future delivery as the Collateral Agent shall deem appropriate.  The Collateral Agent shall be authorized at
any such sale (if it deems it advisable to do so) to restrict the prospective
bidders or purchasers to persons who will represent and agree that they are
purchasing the Collateral for their own account for investment and not with a
view to the distribution or sale thereof, and upon consummation of any such
sale the Collateral Agent shall have the right to assign, transfer and deliver
to the purchaser or purchasers thereof the Collateral so sold.  Each such purchaser at any such sale shall
hold the property sold absolutely, free from any claim or right on the part of
any Grantor, and each Grantor hereby waives (to the extent permitted by law)
all rights of redemption, stay and appraisal which such Grantor now has or may
at any time in the future have under any rule of law or statute now
existing or hereafter enacted.


 


The Collateral Agent shall give each applicable
Grantor 10 days’ written notice (which each Grantor agrees is reasonable notice
within the meaning of Section 9-611 of the New York UCC or its equivalent
in other jurisdictions) of the Collateral Agent’s intention to make any sale of
Collateral.  Such notice, in the case of
a public sale, shall state the time and place for such sale and, in the case of
a sale at a broker’s board or on a securities exchange, shall state the board
or exchange at which such sale is to be made and the day on which the
Collateral, or portion thereof, will first be offered for sale at such board or
exchange.  Any such public sale shall be
held at such time or times and at a time and at such place or places as the
Collateral Agent may fix and state in the notice (if any) of such sale.  At any such sale, the Collateral, or portion
thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion)
determine.  The Collateral Agent shall
not be obligated to make any sale of any Collateral if it shall determine not
to do so, regardless of the fact that notice of sale of such Collateral shall
have been given.  The Collateral Agent
may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and
place fixed for sale, and such sale may, without further notice, be made at the
time and place to which the same was so adjourned.  In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by the Collateral Agent until the sale price is paid by the
purchaser or purchasers thereof, but the Collateral Agent shall not incur any
liability in case any such purchaser or purchasers shall fail to take up and
pay for the Collateral so sold and, in case of any such failure, such
Collateral may be sold again upon like notice. 
At any public (or, to the extent permitted by law, private) sale made
pursuant to this Agreement, any Secured Party may bid for or purchase, free (to
the extent permitted by applicable law) from any right of redemption, stay,
valuation or appraisal on the part of any Grantor (all said rights being also
hereby waived and released to the extent permitted by applicable law), the
Collateral or any part thereof offered for sale and may make payment on account
thereof by using any claim then due and payable to such Secured Party from any
Grantor as a credit against the purchase price, and such Secured Party may,
upon compliance with the terms of sale, hold, retain and dispose of such
property without further accountability to any Grantor therefor.  For purposes hereof, a


 


H-15
















 


bona fide written agreement
to purchase the Collateral or any portion thereof entered into by the
Collateral Agent in good faith shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such
agreement and no Grantor shall be entitled to the return of the Collateral or
any portion thereof subject thereto, notwithstanding the fact that after the
Collateral Agent shall have entered into such an agreement all Events of
Default shall have been remedied and the Obligations paid in full.  As an alternative to exercising the power of
sale herein conferred upon it, the Collateral Agent may proceed by a suit or
suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court
or courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver.


 


Each Grantor irrevocably (until the Termination
Date) makes, constitutes and appoints the Collateral Agent (and all officers,
employees or agents designated by the Collateral Agent) as such Grantor’s true
and lawful agent (and attorney-in-fact) for the purpose, upon the occurrence
and during the continuance of an Event of Default, of making, settling and
adjusting claims in respect of Collateral under policies of insurance,
endorsing the name of such Grantor on any check, draft, instrument or other
item of payment for the proceeds of such policies of insurance and for making
all determinations and decisions with respect thereto.  In the event that any Grantor at any time or
times shall fail to obtain or maintain any of the policies of insurance
required under the Indenture or to pay any premium in whole or part relating
thereto, the Collateral Agent may, without waiving or releasing any obligation
or liability of any Grantor hereunder or any Default or Event of Default, in
its sole discretion or upon the instruction of the Majority Holders, obtain and
maintain such policies of insurance and pay such premium and take any other
actions with respect thereto as the Collateral Agent or Majority Holders deem
advisable.  All sums disbursed by the
Collateral Agent in connection with this paragraph, including attorneys’ fees,
court costs, expenses and other charges relating thereto, shall be payable,
upon demand, by the Grantors to the Collateral Agent and shall be additional
Obligations secured hereby.


 


SECTION 4.03             Application of Proceeds.  If an Event of Default shall have occurred
and be continuing, the Collateral Agent shall remit the proceeds of any
collection, sale, foreclosure or other realization upon any Collateral to the
Trustee to be used to satisfy the Obligations in accordance with Section 7.10
of the Indenture.


 


Upon any sale of Collateral by the Collateral
Agent (including pursuant to a power of sale granted by statute or under a
judicial proceeding), the receipt of the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid over
to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.


 


SECTION 4.04             Grant of
License to Use Intellectual Property.  For the purpose of enabling the Collateral
Agent to exercise rights and remedies under this Agreement at such time as the
Collateral Agent shall be lawfully entitled to exercise such rights and
remedies, each Grantor hereby grants to the Collateral Agent an irrevocable
(until the Termination Date), nonexclusive license, subject in all respects to
any existing licenses (exercisable without payment of royalty or other
compensation to the Grantors), to use, license or sublicense any of 


 


H-16

















 


the
Collateral consisting of Intellectual Property now owned or hereafter acquired
by such Grantor, and wherever the same may be located, and including in such
license access to all media in which any of the licensed items may be recorded
or stored and to all computer software and programs used for the compilation or
printout thereof.  The use of such
license by the Collateral Agent may be exercised, at the option of the
Collateral Agent, only upon the occurrence and during the continuation of an
Event of Default; provided, however, that any license, sublicense
or other transaction entered into by the Collateral Agent in accordance
herewith shall be binding upon each Grantor notwithstanding that such Event of
Default may be cured or cease to exist.


 


SECTION 4.05             Securities
Act, Etc.  In view of the
position of the Grantors in relation to the Pledged Collateral, or because of
other current or future circumstances, a question may arise under the U.S.
Securities Act of 1933, as now or hereafter in effect, or any similar statute
hereafter enacted analogous in purpose or effect (such Act and any such similar
statute as from time to time in effect being called the “Federal Securities
Laws”) with respect to any disposition of the Pledged Collateral permitted
hereunder.  Each Grantor understands that
compliance with the Federal Securities Laws might very strictly limit the
course of conduct of the Collateral Agent if the Collateral Agent were to
attempt to dispose of all or any part of the Pledged Collateral, and might also
limit the extent to which or the manner in which any subsequent transferee of
any Pledged Collateral could dispose of the same.  Similarly, there may be other legal
restrictions or limitations affecting the Collateral Agent in any attempt to
dispose of all or part of the Pledged Collateral under applicable “blue sky” or
other state securities laws or similar laws analogous in purpose or
effect.  Each Grantor recognizes that to
the extent such restrictions and limitations apply to any proposed sale of
Pledged Collateral, the Collateral Agent may, with respect to any sale of such
Pledged Collateral, limit the purchasers to those who will agree, among other
things, to acquire such Pledged Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof, Each
Grantor acknowledges and agrees that to the extent such restrictions and
limitations apply to any proposed sale of Pledged Collateral, the Collateral Agent,
in its sole and absolute discretion (a) may proceed to make such a sale whether
or not a registration statement for the purpose of registering such Pledged
Collateral or part thereof shall have been filed under the Federal Securities
Laws and (b) may approach and negotiate with a limited number of potential
purchasers (including a single potential purchaser) to effect such sale.  Each Grantor acknowledges and agrees that any
such sale might result in prices and other terms less favorable to the seller
than if such sale were a public sale without such restrictions.  In the event of any such sale, the Collateral
Agent shall incur no responsibility or liability for selling all or any part of
the Pledged Collateral at a price that the Collateral Agent, in its sole and
absolute discretion, may in good faith deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid
or if more than a limited number of purchasers (or a single purchaser) were
approached.  The provisions of this Section
4.05 will apply notwithstanding the existence of a public or private market
upon which the quotations or sales prices may exceed substantially the price at
which the Collateral Agent sells.


 


SECTION 4.06             Intercreditor
Agreement.  The rights and
remedies of the Collateral Agent and the Trustee, on behalf of the Secured
Parties, under this Agreement shall be subject to the Intercreditor Agreement,
if any, in effect from time to time.  In
the event of any conflict 


 


H-17

















 


between
the terms of the Intercreditor Agreement and this Agreement, the terms of the
Intercreditor Agreement shall govern and control.


 


SECTION 4.07             Exercise of
Control.  Unless an Event of
Default shall have occurred and be continuing, the Collateral Agent agrees that
it will not (nor will it direct any agent acting as a trustee or other agent as
secured party pursuant to the Intercreditor Agreement or any “control agreement”
to) deliver any notice of control or otherwise exercise control or issue any
entitlement orders or instructions over any Account or any other deposit or
securities account of any Grantor subject to a “control agreement”.  Upon the cure or written waiver of such Event
of Default in accordance with the Note Documents and provided that no Event of
Default then exists, the Collateral Agent will (or will direct any agent acting
as a trustee or other agent as secured party pursuant to the Intercreditor
Agreement or any “control agreement” to) deliver a termination of any notice of
control previously sent by the Collateral Agent, and hereby agrees to no longer
issue any entitlement orders or instructions with respect to, any Account or
any other deposit or securities account of such Grantor over which control was
previously exercised.


 


ARTICLE V


 


[Reserved]


 


ARTICLE VI


 


Miscellaneous


 


SECTION 6.01             Notices.  All communications and notices hereunder
shall (except as otherwise expressly permitted herein) be in writing and given
as provided in Section 14.02 of the Indenture. 
All communications and notices hereunder to any Guarantor shall be given
to it in care of the Borrower as provided in Section 14.02 of the Indenture.


 


SECTION 6.02             Survival of
Agreement.  All covenants,
agreements, representations and warranties made by the Borrower and Guarantors
in the Note Documents and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Note
Document shall be considered to have been relied upon by the Secured Parties
and shall survive the execution and delivery of the Note Documents and the
issuance of any Notes, regardless of any investigation made by any Holder or on
its behalf and notwithstanding that the Trustee, Collateral Agent or any Holder
may have had notice or knowledge of any Default or incorrect representation or
warranty, and shall continue in full force and effect until the Termination
Date.


 


SECTION 6.03             Binding
Effect; Several Agreement. 
This Agreement shall become effective as to the Borrower or any
Guarantor when a counterpart hereof executed on behalf of the Borrower or such
Guarantor, as applicable, shall have been delivered to the Collateral Agent and
a counterpart hereof shall have been executed on behalf of the Collateral
Agent, and thereafter shall be binding upon the Borrower or such Guarantor, as
applicable, and the Collateral Agent and their respective permitted successors
and assigns, and shall inure to the 


 


H-18

















 


benefit
of the Borrower or such Guarantor, as applicable, the Collateral Agent and the
other Secured Parties and their respective successors and permitted assigns,
except that neither the Borrower nor any Guarantor shall have the right to
assign or transfer its rights or obligations hereunder or any interest herein
or in the Collateral (and any such assignment or transfer shall be void),
except as contemplated or permitted by this Agreement or the Indenture.  This Agreement shall be construed as a
separate agreement with respect to the Borrower and each Guarantor and may be
amended, modified, supplemented, waived or released with respect to the Borrower
or any Guarantor without the approval of any other of the Borrower and the
Guarantors and without affecting the obligations of any other of the Borrower
and the Guarantors hereunder.


 


SECTION 6.04             Successors and Assigns.  Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and permitted assigns of such party; and all covenants, promises and agreements
by or on behalf of any Grantor or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.


 


SECTION 6.05             Collateral Agent’s Fees and Expenses; Indemnification.  The parties hereto agree that the Collateral
Agent shall be entitled to reimbursement of its expenses incurred hereunder and
indemnity in connection with the actions taken hereunder.  Each Grantor hereby agrees to indemnify and
hold harmless the Collateral Agent and its directors, officers, employees and
agents against and from any and all claims, actions, liabilities, costs and
expenses of any kind or nature whatsoever (including reasonable fees and
disbursements of counsel) that may be imposed on, incurred by, or asserted
against any of them, in any way relating to or arising out of this Agreement,
any exercise of remedies hereunder or any other action taken or omitted by them
hereunder, except to the extent a court holds in final and nonappealable
judgment that such claims, actions, liabilities, costs and expenses directly
resulted from the gross negligence or willful misconduct of such indemnified
Persons.  The provisions of this Section 6.05
shall survive the Termination Date.


 


SECTION 6.06             Collateral
Agent Appointed Attorney-in—Fact. 
Each Grantor hereby appoints the Collateral Agent as the
attorney-in-fact of such Grantor for the purpose of, upon the occurrence and
during the continuance of an Event of Default, carrying out the provisions of
this Agreement and taking any action and executing any instrument that the
Collateral Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment is irrevocable (until the Termination Date) and
coupled with an interest; provided, however, that the Collateral
Agent shall not execute on behalf of Grantors any application or other
instrument to be submitted to the FCC.  Without
limiting the generality of the foregoing, the Collateral Agent shall have the
right, upon the occurrence and during the continuance of an Event of Default,
with full power of substitution either in the Collateral Agent’s name or in the
name of such Grantor (a) to receive, endorse, assign and/or deliver any and all
notes, acceptances, checks, drafts, money orders or other evidences of payment
relating to the Collateral or any part thereof; (b) to demand, collect, receive
payment of, give receipt for and give discharges and releases of all or any of
the Collateral, (c) to sign the name of any Grantor on any invoice or bill of
lading relating to any of the Collateral, (d) to send verifications of Accounts
to any Account Debtor, (e) to commence and prosecute any and all suits, actions
or proceedings at law or in equity in any court of competent jurisdiction to
collect or otherwise realize on all or any of the Collateral or to enforce any
rights in respect of any Collateral, (f) to 


 


H-19

















 


settle,
compromise, compound, adjust or defend any actions, suits or proceedings
relating to all or any of the Collateral, (g) to notify, or to require any
Grantor to notify, Account Debtors to make payment directly to the Collateral
Agent, and (h) to use, sell, assign, transfer, pledge, make any agreement with
respect to or otherwise deal with all or any of the Collateral, and to do all
other acts and things necessary to carry out the purposes of this Agreement in
accordance with its terms, as fully and completely as though the Collateral
Agent were the absolute owner of the Collateral for all purposes; provided,
however, that nothing herein contained shall be construed as requiring
or obligating the Collateral Agent to make any commitment or to make any
inquiry as to the nature or sufficiency of any payment received by the
Collateral Agent, or to present or file any claim or notice, or to take any
action with respect to the Collateral or any part thereof or the moneys due or
to become due in respect thereof or any property covered thereby.  The Collateral Agent and the Secured Parties
shall be accountable only for amounts actually received as a result of the
exercise of the powers granted to them herein, and neither they nor their
officers, directors, employees or agents shall be responsible to any Grantor
for any act or failure to act hereunder, except for their own gross negligence
or willful misconduct as determined by a court in a final and nonappealable
judgment.  The foregoing powers of
attorney being coupled with an interest, are irrevocable until the Security
Interest shall have terminated in accordance with the terms hereof.


 


SECTION 6.07             Applicable
Law.  THE INTERNAL LAW OF THE
STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS AGREEMENT 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 6.08             Waivers;
Amendment.  (a) No failure or
delay by the Collateral Agent, the Trustee or any Holder in exercising any
right or power hereunder or under any other Note Document shall operate as a
waiver hereof or thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or the exercise
of any other right or power.  The rights
and remedies of the Secured Parties hereunder and under the other Note
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have.  No waiver of
any provision of any Note Document or consent to any departure by the Borrower
or any Guarantor therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section 6.08, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given.  Without limiting the
generality of the foregoing, the purchase of a Note shall not be construed as a
waiver of any Default, regardless of whether any Secured Party may have had
notice or knowledge of such Default at the time.  Except as otherwise provided herein, no
notice or demand on the Borrower or any Guarantor in any case shall entitle the
Borrower or any Guarantor to any other or further notice or demand in similar
or other circumstances.


 


(b)           Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Collateral Agent and any of the Borrower and the
Guarantors with respect to which such waiver, amendment or modification is to
apply, subject to any consent required in accordance with Article 10 of the
Indenture.


 


H-20

















 


SECTION 6.09             WAIVER OF JURY TRIAL.  EACH PARTY HERETO, AND EACH OTHER SECURED
PARTY, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF, HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER NOTE DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY).  EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER NOTE DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.09.


 


SECTION 6.10             Severability.  In the event any one or more of the
provisions contained in this Agreement or in any other Note Document should be
held invalid, illegal or unenforceable in any respect by any court or
governmental authority of competent jurisdiction (including but not limited to
the FCC), the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby (it being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). 
The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.


 


SECTION 6.11             Counterparts.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together
shall constitute a single contract, and shall become effective as provided in Section
6.03.  Delivery of an executed
signature page to this Agreement by facsimile or electronic transmission shall
be as effective as delivery of a manually signed counterpart of this Agreement.


 


SECTION 6.12             Headings.  Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.


 


SECTION 6.13             Jurisdiction;
Consent to Service of Process. 
(a) Each of the parties hereto, and the other Secured Parties, by their
acceptance of the benefits of this Agreement hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America, in each case, sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Agreement or the other Note Documents, or for recognition or enforcement
of any judgment, and each of the parties hereto and the other Secured Parties,
by their acceptance of the benefits of this Agreement hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard 


 


H-21

















 


and
determined in such New York State or, to the fullest extent permitted by
applicable law, in such Federal court. 
Each of the parties hereto and the other Secured Parties, by their
acceptance of the benefits of this Agreement agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in this Agreement or any
other Note Document shall affect any right that any Secured Party may otherwise
have to bring any action or proceeding relating to this Agreement or the other
Note Documents against the Borrower or any Guarantor or their respective
properties in the courts of any jurisdiction.


 


(b)           Each of the parties hereto and the other Secured Parties,
by their acceptance of the benefits of this Agreement, hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Note Documents in any New York State or Federal court described in
clause (a).  Each of the parties hereto
and the other Secured Parties, by their acceptance of the benefits of this
Agreement hereby irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.


 


(c)           Each of the parties hereto and the other Secured Parties,
by their acceptance of the benefits of this Agreement hereby irrevocably
consents to service of process in the manner provided for notices in Section
14.02 of the Indenture.  Nothing in
this Agreement or any other Note Document will affect the right of any party to
this Agreement or any other Secured Party to serve process in any other manner
permitted by law.


 


SECTION 6.14             Termination
or Release.  (a) This
Agreement, the Security Interest, the pledge of the Pledged Collateral and all
other security interests granted hereby shall terminate on the Termination
Date.


 


(b)           A Guarantor shall automatically be released from its
obligations hereunder and the Security Interests created hereunder in the
Collateral of such Guarantor shall be automatically released upon the
consummation of any transaction permitted by the Indenture as a result of which
such Guarantor ceases to be a Guarantor under the Indenture.


 


(c)           Upon any sale or other transfer by any Grantor of any
Collateral that is permitted under the Indenture to any person that is not the
Borrower or a Grantor, or upon the effectiveness of any written consent to the
release of the Security Interest granted hereby in any Collateral in accordance
with the terms of the Indenture, the Security Interest in such Collateral shall
be automatically released,


 


(d)           In connection with any termination or release pursuant to
paragraph (a), (b) or (c) above, the Collateral Agent shall promptly execute
and deliver to any Grantor, at such Grantor’s sole expense, all Uniform
Commercial Code termination statements and similar documents that such Grantor
shall reasonably request to evidence such termination or release.  Any execution and delivery of documents
pursuant to this Section 6.14 shall be without recourse to or
representation or warranty by the Collateral Agent (other than any
representation and warranty that the Collateral Agent has the authority to
execute and deliver such documents) or 


 


H-22

















 


any Secured Party.  Without limiting the provisions of Section
6.05, the Borrower shall reimburse the Collateral Agent upon demand for all
reasonable out-of-pocket costs and expenses, including the fees, charges and
expenses of counsel, incurred by it in connection with any action contemplated
by this Section 6.14.


 


(e)           At any time that the respective Grantor desires that the
Collateral Agent take any action described in preceding paragraph (d) above, it
shall, upon request of the Collateral Agent, deliver to the Collateral Agent an
officer’s certificate certifying that the release of the respective Collateral
is permitted pursuant to paragraph (a), (b) or (c).  The Collateral Agent shall have no liability
whatsoever to any Secured Party as the result of any release of Collateral by
it as permitted (or which the Collateral Agent in good faith believes to be
permitted) by this Section 6.14.


 


SECTION 6.15             FCC
Compliance.  (a) Notwithstanding
anything to the contrary contained herein or in any other agreement, instrument
or document executed in connection herewith, no party hereto shall take any
actions hereunder that would constitute or result in a transfer of control of
an entity holding any FCC License or an assignment of any FCC License requiring
the prior approval of the FCC without first obtaining such prior approval of the
FCC.  In addition, the parties
acknowledge that the voting rights of the Pledged Stock in such an entity shall
remain with the relevant Grantor thereof even upon the occurrence and during
the continuance of an Event of Default until the FCC shall have given its prior
consent to the exercise of voting rights by a purchaser at a public or private
sale of such Pledged Stock or the exercise of such rights by the Collateral
Agent or by a receiver, trustee, conservator or other agent duly appointed
pursuant to applicable law.


 


(b)           If an Event of Default shall have occurred and is
continuing, each Grantor shall take any action which the Collateral Agent may
reasonably request in the exercise of its rights and remedies under this
Agreement in order to effectuate any transfer of control of any Grantor or any
assignment of the Collateral to the Collateral Agent or to such one or more
third parties as the Collateral Agent may designate, or to a combination of the
foregoing.  To enforce the provision of
this Section 6.15, the Collateral Agent is empowered to seek from the
FCC and any other governmental authority, to the extent required by applicable
law or government regulation, consent to or approval of any voluntary or
involuntary transfer of control of any entity whose Collateral is subject to
this Agreement or any voluntary or involuntary assignment of the Collateral, in
each case for the purpose of seeking a bona fide purchaser of some or all of
the Collateral.  Each Grantor agrees to
cooperate with any such purchaser and with the Collateral Agent in the
preparation, execution and filing of any application and such other forms, and
in providing any information that may be necessary or useful in obtaining the
FCC’s consent to the transfer of control or assignment of the Collateral.  Each Grantor hereby irrevocably (x) consents
to any such voluntary or involuntary transfer of control or assignment after
and during the continuation of an Event of Default and, without limiting any
rights of the Collateral Agent under this Agreement, to the Collateral Agent’s
right to appoint a trustee or receiver to acquire or assume control of the
Collateral, subject only to required judicial, FCC or other consents required
by governmental authorities, in order to effectuate the transactions
contemplated by this Section 6.15 and (y) waives any right such Grantor
may have to object to the appointment of such trustee or receiver, such Grantor
acknowledging that the Collateral Agent’s uncontested right to have a trustee
or receiver appointed for the foregoing purposes is considered essential by 


 


H-23

















 


Holders in connection with the enforcement of
their rights and remedies hereunder and was a material factor in inducing
Holders to participate in the Exchange Offer and/or hold the Notes.  Such trustee or receiver shall have all the
rights and powers as provided to it by law or court order, or to the Collateral
Agent under this Agreement.  Each Grantor
shall cooperate fully in obtaining the consent of the FCC and the approval or
consent of each other governmental authority required to effectuate the
foregoing.


 


(c)           Without limiting the obligations of any Grantor hereunder
and the rights of the Collateral Agent hereunder in any respect, each Grantor
further agrees that if such Grantor, upon or after the occurrence (and during
the continuance) of an Event of Default, should fail or refuse for any reason
whatsoever, to sign (within five (5) Business Days of a request by Collateral
Agent) any application to the FCC or any other governmental authority which is
necessary or useful for the exercise of any remedy by Collateral Agent
hereunder, such Grantor agrees that such application may be executed on such
Grantor’s behalf by the clerk or other designee of any court of competent
jurisdiction without notice to such Grantor pursuant to court order.


 


SECTION 6.16             Additional
Parties.  Pursuant to Section
5.20 of the Indenture, each Guarantor that was not in existence or not a
Guarantor on the Closing Date is required to enter into this Agreement as a
Grantor within such periods set forth in the Indenture.  Upon execution and delivery by the Collateral
Agent and such Guarantor of a supplement in the form of Exhibit A
hereto, such Guarantor shall become a Grantor hereunder with the same force and
effect as if originally named as a Grantor herein.  The execution and delivery of any such
instrument shall not require the consent of the Borrower or any other Guarantor
hereunder.  The rights and obligations of
each Grantor hereunder shall remain in full force and effect notwithstanding
the addition of any new Grantor as a party to this Agreement.


 


SECTION 6.17             Security
Interest and Obligations Absolute. 
Subject to Section 6.14 hereof, all rights of the Collateral
Agent hereunder, the Security Interest, the grant of a security interest in the
Pledged Collateral and all obligations of each Grantor hereunder shall be
absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Indenture, any other Note Document, any agreement with
respect to any of the Obligations or any other agreement or instrument relating
to any of the foregoing, (b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the Indenture, any
other Note Document, or any other agreement or instrument (so long as the same
are made in accordance with the terms of the Indenture), (c) any exchange,
release or non-perfection of any Lien on other collateral, or any release or
amendment or waiver of or consent under or departure from any guarantee,
securing or guaranteeing all or any of the Obligations, (d) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or the like of any other Grantor, (e) any exercise, non-exercise or waiver of
any right, remedy, power or privilege under or in respect hereof, the Indenture
or any other Note Document except as specifically set forth in a waiver,
forbearance, consent or amendment granted pursuant to the provisions of Section
6.08 hereof, or (f) any other circumstance that might otherwise constitute
a defense available to, or a discharge of, any Grantor in respect of the
Obligations or this Agreement.


 


H-24

















 


[Remainder
of page intentionally left blank]


 


H-25
















 


IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the day and year first above written.


 


	
   

  	
  FIBERTOWER CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO
COLLATERAL AGREEMENT]


 

















 


	
   

  	
  [GUARANTOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO
COLLATERAL AGREEMENT]


 

















 


	
   

  	
  WELLS FARGO BANK, NATIONAL

  ASSOCIATION, as Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO
COLLATERAL AGREEMENT]


 

















 


Schedule
I to the

Collateral Agreement


 


SUBSIDIARY GUARANTORS


 

















 


Schedule
II to the

Collateral Agreement


 


EQUITY
INTERESTS


 


	
  Issuer

  	
   

  	
  Number of

  Certificate

  	
   

  	
  Registered

  Owner

  	
   

  	
  Number of 

  Class of 

  Equity Interest

  	
   

  	
  Percentage

  of Equity

  Interests

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


PLEDGED
DEBT SECURITIES


 


	
  Issuer

  	
   

  	
  Principal

  Amount

  	
   

  	
  Date of Note

  	
   

  	
  Maturity Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule
III to the

Collateral Agreement


 


COPYRIGHTS
OWNED BY GRANTORS


 


U.S. Copyright Registrations


 


None.


 


PATENTS
OWNED BY GRANTORS


 


U.S. Patents


 


None.


 


TRADEMARKS
OWNED BY GRANTORS


 


U.S. Trademark Registrations


 


None.


 

















 


Schedule
IV to the

Collateral Agreement


 


UCC
FILING OFFICES


 


Delaware Secretary of State


 

















 


Schedule
V to the

Collateral Agreement


 


UCC
INFORMATION


 


	
  Legal Name

  	
   

  	
  Jurisdiction

  	
   

  	
  Mailing Address

  	
   

  	
  Organizational

  Identification

  Number

  	
   

  	
  Federal Taxpayer

  Identification

  Number

  	
   

  
	
  FiberTower
  Corporation

  	
   

  	
  Delaware

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Prior Names:


 


None


 

















 


Schedule
VI to the

Collateral Agreement


 


COMMERCIAL
TORT CLAIMS, CHATTEL PAPER AND INSTRUMENTS


 


None.


 
















 


Exhibit A
to the


Collateral
Agreement


 


SUPPLEMENT
NO. [·] (this “Supplement”)
dated as of [·], to the
Collateral Agreement dated as of
[            ],
2009 (the “Collateral Agreement”), among FIBERTOWER CORPORATION, a
Delaware corporation (the “Borrower”), each subsidiary of the Borrower
from time to time party thereto (each such subsidiary of Borrower, a “Guarantor”
and collectively, the “Guarantors”; the Guarantors and the Borrower are
referred to collectively herein as the “Grantors”) and WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Collateral Agent (in such capacity, the “Collateral
Agent”) for the Secured Parties (as defined therein).


 


A.            Reference is made to the Indenture
dated as of
[            ],
2009 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Indenture”), among the Borrower,
certain Subsidiaries of the Borrower party thereto, Wells Fargo Bank, National
Association, as trustee (in such capacity, the “Trustee”).


 


B.            Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Indenture or the Collateral Agreement, as applicable.


 


C.            The Grantors have entered into the
Collateral Agreement in order to induce the Holders to purchase Notes.  Section 6.16 of the Collateral
Agreement provides that certain additional Restricted Subsidiaries of the
Borrower may become Grantors under the Collateral Agreement by execution and
delivery of an instrument in the form of this Supplement.  The undersigned subsidiary (the “New Party”)
is executing this Supplement in accordance with the requirements of the
Indenture to become a Grantor under the Collateral Agreement.


 


Accordingly,
the Collateral Agent and the New Party agree as follows:


 


SECTION 1.           In accordance with Section 6.16
of the Collateral Agreement, the New Party by its signature below becomes a
Grantor under the Collateral Agreement with the same force and effect as if
originally named therein as a Grantor and the New Party hereby (a) agrees
to all the terms and provisions of the Collateral Agreement applicable to it as
a Grantor thereunder and (b) represents and warrants that it has become a
Guarantor under the Indenture and that the representations and warranties made
by it as a Grantor under the Collateral Agreement are true and correct in all
material respects on and as of the date hereof (for this purpose, as though
references therein to the Closing Date were to the date hereof).  In furtherance of the foregoing, the New
Party, as security for the payment and performance in full of the Obligations
(as defined in the Collateral Agreement), does hereby create and grant to the
Collateral Agent, its successors and permitted assigns, for the benefit of the
Secured Parties, their successors and permitted assigns, a security interest in
and lien on all of the New Party’s right, title and interest in and to the
Collateral (as defined in the Collateral Agreement) of the New Party.  Each reference to a “Grantor” or a “Guarantor”
in the Collateral Agreement shall be deemed to include the New Party.  The Collateral Agreement is hereby
incorporated herein by reference.


 

















 


SECTION 2.           The New Party represents and warrants
to the Collateral Agent and the other Secured Parties that this Supplement has
been duly authorized, executed and delivered by it and constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms except as the enforceability thereof may be limited by bankruptcy,
insolvency or other similar laws relating to the enforcement of creditors’
rights generally and by general equitable principles.


 


SECTION 3.           This Supplement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Supplement shall become effective when the Collateral Agent shall have received
counterparts of this Supplement that, when taken together, bear the signatures
of the New Party and the Collateral Agent. 
Delivery of an executed signature page to this Supplement by
facsimile or electronic transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.


 


SECTION 4.           The New Party hereby represents and warrants
that (a) set forth on Schedule I attached hereto is a true and
correct schedule of (i) any and all Equity Interests and Pledged Debt
Securities now owned by the New Party, (ii) any and all United States
federal registrations and pending applications for Trademarks, Patents and
Copyrights now owned by the New Party, (iii) any and all Commercial Tort
Claims of such New Party, and (iv) any and all Instruments and Chattel
Paper held by such New Party meeting the thresholds required by Section 3.04
of the Collateral Agreement, and (b) set forth under its signature hereto,
is the true and correct legal name of the New Party and its jurisdiction of
organization.


 


SECTION 5.           Except as expressly supplemented
hereby, the Collateral Agreement shall remain in full force and effect.


 


SECTION 6.         THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENT 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 7.           In case any one or more of the
provisions contained in this Supplement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and in the Collateral Agreement shall not
in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other
jurisdiction).  The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.


 


SECTION 8.           All communications and notices
hereunder shall (except as otherwise expressly permitted by the Collateral
Agreement) be in writing and given as provided in Section 14.02 of the
Indenture.  All communications and
notices hereunder to the New Party shall be given to it in care of the Borrower
as provided in Section 14.02 of the Indenture.


 

















 


SECTION 9.           The New Party agrees to reimburse the
Collateral Agent for its out-of-pocket expenses in connection with this
Supplement (including reasonable fees and disbursements of counsel), and to
indemnify it, in accordance with Section 6.05 of the Collateral Agreement.


 

















 


IN
WITNESS WHEREOF, the New Party and the Collateral Agent have duly executed this
Supplement to the Collateral Agreement as of the day and year first above
written.


 


	
   

  	
  [NAME OF NEW PARTY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Legal Name:

  
	
   

  	
  Jurisdiction of Formation:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


SCHEDULE I


 


Collateral of the New Party


 


EQUITY
INTERESTS


 


	
  Issuer

  	
   

  	
  Number of

  Certificate

  	
   

  	
  Registered

  Owner

  	
   

  	
  Number and

  Class of

  Equity Interest

  	
   

  	
  Percentage

  of Equity

  Interests

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


PLEDGED
DEBT SECURITIES


 


	
  Issuer

  	
   

  	
  Principal

  Amount

  	
   

  	
  Date of Note

  	
   

  	
  Maturity Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


INTELLECTUAL
PROPERTY


 


COMMERCIAL
TORT CLAIMS


 


INSTRUMENTS


 


CHATTEL
PAPER


 

















 


COPYRIGHTS OWNED BY GRANTORS


 


U.S. Copyright Registrations


 


	
  Title

  	
   

  	
  Reg. No.

  	
   

  	
  Author

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Pending U.S. Copyright Applications for Registration


 


	
  Title

  	
   

  	
  Author

  	
   

  	
  Class

  	
   

  	
  Date Filed

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


PATENTS
OWNED BY GRANTORS


 


U.S. Patents


 


	
  Patent No.

  	
   

  	
  Issue Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


U.S. Patent Applications


 


	
  Patent Application No.

  	
   

  	
  Filing Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 

















 


TRADEMARKS
OWNED BY GRANTORS


 


U.S. Trademark Registrations


 


	
  Mark

  	
   

  	
  Reg. Date

  	
   

  	
  Reg. No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S. Trademark Applications


 


	
  Mark

  	
   

  	
  Filing Date

  	
   

  	
  Application No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 
















 


Exhibit I


 


FORM OF COLLATERAL ASSIGNMENT
(COPYRIGHTS)


 

















 


[FORM OF]


 


COLLATERAL ASSIGNMENT
(COPYRIGHTS) (NEW NOTES)


 


THIS COLLATERAL ASSIGNMENT (COPYRIGHTS) (NEW NOTES) (the “Assignment”),
dated as of
[                      ], 2009,
is made and given by [                              ], a
[                        ]
(the “Assignor”), to WELLS FARGO BANK, NATIONAL ASSOCIATION, as
collateral agent for the Holders of the Notes defined below (in such capacity,
the “Agent,” and the Agent together with its successors and assigns, the
“Assignee”).


 


THIS ASSIGNMENT, AND THE
RIGHTS OF THE PARTIES HEREUNDER, ARE SUBJECT TO THE PROVISIONS OF THE AMENDED
AND RESTATED INTERCREDITOR AGREEMENT, DATED AS OF
[                                ],
2009, AMONG THE TRUSTEE AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO
TIME, AND THE BORROWERS AND THE GUARANTORS, AS AMENDED OR OTHERWISE MODIFIED
FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.


 


RECITALS


 


A.            Reference is made to
the Indenture dated as of
[              ],
2009 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Indenture”), among FiberTower
Corporation (the “Borrower”), certain Subsidiaries of the Borrower party
thereto, and Wells Fargo Bank, National Association, as Trustee (in such
capacity, the “Trustee”), governing those certain 9.00% Senior Secured
Notes Due 20[    ] (the “Notes”).  Capitalized terms used in this Assignment and
not otherwise defined herein have the meanings set forth in the Indenture.


 


B.            In connection with
the Indenture, each of the Borrower and the Guarantors is entering into the
Collateral Agreement, dated as of even date with the Indenture (the “Collateral
Agreement”), with the Agent.  To
secure all the Note Obligations of the Assignor to the Assignee, Trustee, and
the Holders arising under the Notes and the Indenture and each other Note
Document, whether now existing or hereafter arising, the Assignor has pledged
and granted to the Assignee a security interest in the property described in
the Collateral Agreement, which property includes general intangibles
including, without limitation, patents, inventions, trademarks, trade names,
copyrights, and trade secrets.  The
Assignor owns the copyright registrations set forth in Exhibit A
attached hereto, and the copyrights so listed are registered or application has
been made for such registration as noted in Exhibit A in the United
States Copyright Office or applicable foreign copyright office.


 


C.            The Holders are
acquiring the Notes pursuant to the Mandatory Redemption and upon the terms and
conditions specified in the Indenture. 
The Indenture and the Collateral Agreement require, and the terms of the
Mandatory Redemption contemplate, among other things, the execution and
delivery of this Assignment by the Borrower and each Guarantor.  Accordingly, the parties hereto agree as
follows:


 


1.             The Assignor does
hereby collaterally (and, effective upon the giving of a notice by the
Assignee of the type described in the next sentence, absolutely) assign, to the
extent not prohibited by applicable law, all of its right, title, and interest in and to all of
the present 


 

















 


United States and foreign copyrights, registered or
unregistered, now or hereafter acquired, by Assignor in and to all copyrightable
works, including, but not limited to, those copyright registrations identified
on Exhibit A, (the “Copyrights”), including but not limited
to those registered copyrights set forth on Exhibit A, and
including, without limitation, all proceeds thereof together with the right to
recover for past, present and future infringements, all rights corresponding
thereto throughout the world and all renewals and extensions thereof, said
Copyrights to be held and enjoyed by the Assignee, for its own use and behalf,
and for its legal representatives, successors and assigns, as fully and
entirely as the same would have been held by the Assignor had this Assignment
not been made.  Except to the
extent the foregoing assignment creates a collateral assignment (which
assignment is currently effective), the foregoing assignment shall be effective
only upon the written notice by the Assignee to the Assignor of the acceptance
by the Assignee of this Assignment that is given upon and occurrence and during
the continuation of an Event of Default under the Indenture, which written
notice shall constitute conclusive proof of the matters set forth therein;
unless and until the giving of such notice by the Agent, such assignment shall
have no effect.  Upon the occurrence and
continuation of an Event of Default under the Indenture, the Assignee shall be
entitled to transfer the Copyrights pursuant to the Assignment of Copyrights
attached hereto as Exhibit B. 
Assignor hereby irrevocably authorizes the Assignee to complete (including
without limitation attaching an appropriate updated list of Copyrights as an
annex thereto) the undated Assignments of Copyrights at the time of transfer.


 


2.             The Assignor hereby
covenants and warrants that:


 


(a)           except
for applications pending, the Copyrights listed on Exhibit A have
been duly issued and are subsisting and, as of the date hereof, have not been
adjudged invalid or unenforceable in whole or in part;


 


(b)           as
of the date hereof or, if later, the date on which Exhibit A is
amended as described in Section 4 hereof (but only as to
Copyrights that are added to Exhibit A on such date), to the Assignor’s
knowledge, each of
the Copyrights listed on Exhibit A is valid and enforceable;


 


(c)           as
of the date hereof, no written claim has been made to the Assignor or, to the
knowledge of the Assignor, to any other person, that any of the Copyrights does
or may violate the rights of any third person and no claim has been made by the
Assignor that any other person is infringing upon the rights of the Assignor
under the Copyrights, in each case except to the extent that any such
claim does not relate to any Copyright that is material to the conduct of the
Assignor’s business;


 


(d)           after the date hereof, the Assignor will give prompt
written notice to the Assignee of any claim of the type described in the
preceding clause (c) (and notwithstanding whether such claim arose on,
prior to or after the date hereof);


 


(e)           the
Assignor has the unqualified right to enter into this Assignment and perform
its terms;


 


I-2

















 


(f)            the
Assignor will be, until the Note Obligations shall have been satisfied in full
and the Note Documents shall have been terminated, in material compliance with
statutory notice requirements, and will pay all renewal, maintenance and other
fees, relating to the Copyrights, that are material to the
conduct of the Assignor’s business;


 


(g)           except
for Permitted Liens, the Assignor is the sole and exclusive owner of the entire
and unencumbered right, title, and interest in and to each of the Copyrights
listed on Exhibit A, free and clear of any liens, charges, and
encumbrances, including without limitation licenses and covenants by the
Assignor not to sue third persons;


 


(h)           as
of the date hereof or, if later, the date on which Exhibit A is
amended as described in Section 4 hereof, the Copyrights listed on Exhibit A
are all of the United States Copyrights and applications therefor now owned by
the Assignor; and


 


(i)            the
Assignor will, at any time upon reasonable request, communicate to the Assignee
and its successors and assigns, any facts relating to the Copyrights or the
history thereof as may be known to the Assignor or its officers, employees, and
agents, and cause such officers, employees, and agents with direct
knowledge of material relevant information to testify as to the same in any infringement or other
litigation at the reasonable request of the Assignee.


 


3.             The Assignor agrees
that, until the rights of the Assignee in the Copyrights are terminated
pursuant to Section 6, it will not enter into any agreement that is
in conflict with its obligations under this Assignment.


 


4.             If, before the Note
Obligations shall have been satisfied in full (other than contingent
indemnification obligations), the Assignor shall obtain any new copyright or
any enhancements or derivative works therefrom, such copyrights shall be
included in the definition of “Copyrights” as used in this Assignment, Section 1
hereof shall automatically apply thereto, and the Assignor shall give to the
Assignee prompt notice thereof in writing. 
The Assignor authorizes the Assignee to modify this Assignment by
amending Exhibit A to include any future copyright(s).


 


5.             The Assignor agrees
not to sell, assign, or encumber its interest in, or grant any license with
respect to, any of the Copyrights, except for the licenses listed on Exhibit C
attached hereto and except in the ordinary course of business and in accordance
with the terms of the Collateral Agreement and the Indenture.


 


6.             The Assignor agrees
that it will authorize, execute, and deliver to Assignee all documents
requested by Assignee to facilitate the purposes of this Assignment, including,
but not limited to, documents required to record Assignee’s interest in any
appropriate office in any domestic or foreign jurisdiction.  If the Assignee is required by the Collateral
Agreement to release its Lien in any or all of the Copyrights, the Assignee
shall upon request of the Assignor execute and deliver to the Assignor all
termination statements and other instruments as may be necessary or proper to
terminate this Assignment and assign to the Assignor all the Assignee’s rights
in the subject Copyrights.


 


I-3

















 


7.             Upon the
occurrence and during the continuation of an Event of Default, the Assignee shall have the right but shall
in no way be obligated to bring suit in its own name to enforce or to defend
the Copyrights or any license thereunder if the Assignor has failed to bring
such suit in circumstances in which a prudent person would have brought such
suit.  The Assignor shall at the  reasonable request of the Assignee do any and
all lawful acts and execute any and all proper documents required by the
Assignee in aid of such enforcement or defense (including without limitation
participation as a plaintiff or defendant in any proceeding), and, if Assignor
has failed to bring such suit in circumstances in which a prudent person would
have brought such suit, the Assignor shall promptly, upon demand, reimburse and
indemnify the Assignee for all costs and expenses (including reasonable fees
and disbursements of counsel) incurred by the Assignee in the exercise of its
rights under this Section.


 


8.             This Assignment
shall also serve to evidence the security interest in the Copyrights granted by
the Assignor to the Assignee pursuant to the Collateral Agreement.


 


9.             No course of
dealing between the Assignor and the Assignee, failure to exercise, nor any
delay in exercising, on the part of the Assignee, with respect to any right,
power, or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power, or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
power, or privilege.


 


10.           All of the Assignee’s
rights and remedies with respect to the Copyrights, whether established hereby,
by any other agreements, or by law, shall be cumulative and may be exercised
singularly or concurrently.


 


11.           This Assignment is
subject to modification only by a writing signed by the parties, except as
provided in Section 4 hereof.


 


12.           This Assignment
shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties.


 


13.           Upon payment in full of all Note
Obligations (other than Assignor’s unmatured indemnity obligations under any
Note Document), this Assignment shall terminate and all rights to the
Copyrights shall revert to the Assignor.


 


14.           The rights and remedies of the Assignee,
on behalf of the Secured Parties (as defined in the Collateral Agreement),
under this Assignment shall be subject to the Intercreditor Agreement, if any,
in effect from time to time.  In the
event of any conflict between the terms of the Intercreditor Agreement and this
Assignment, the terms of the Intercreditor Agreement shall govern and control.


 


15.           THIS ASSIGNMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS (WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF) OF (A) ANY STATE AS TO RIGHTS OR
INTERESTS HEREUNDER WHICH ARISE UNDER THE LAWS OF SUCH STATE, (B) THE
UNITED STATES OF AMERICA AS TO RIGHTS AND INTERESTS HEREUNDER THAT ARE
REGISTERED OR FOR THE REGISTRATION OF WHICH APPLICATION IS PENDING 


 


I-4

















 


WITH THE UNITED STATES COPYRIGHT OFFICE AND (C) THE
STATE OF NEW YORK IN ALL OTHER RESPECTS. 
WHENEVER POSSIBLE, EACH PROVISION OF THIS ASSIGNMENT AND ANY OTHER
STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED HEREBY OR RELATING HERETO
SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER
APPLICABLE LAW, BUT IF ANY PROVISION OF THIS ASSIGNMENT OR ANY OTHER STATEMENT,
INSTRUMENT, OR TRANSACTION CONTEMPLATED HEREBY OR RELATING HERETO SHALL BE HELD
TO BE PROHIBITED OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE
INEFFECTIVE ONLY TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF
THIS ASSIGNMENT OR ANY OTHER STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED
HEREBY OR RELATING HERETO.  IN THE EVENT
OF ANY CONFLICT WITHIN, BETWEEN, OR AMONG THE PROVISIONS OF THIS ASSIGNMENT,
ANY OTHER NOTE DOCUMENT, OR ANY OTHER STATEMENT, INSTRUMENT, OR TRANSACTION
CONTEMPLATED HEREBY OR THEREBY OR RELATING HERETO OR THERETO, THOSE PROVISIONS
GIVING THE ASSIGNEE THE GREATER RIGHT SHALL GOVERN.


 


[The remainder of
this page is intentionally left blank.]


 


I-5

















 


IN WITNESS WHEREOF, the Assignor has executed this instrument.


 


	
   

  	
  [                                          ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Collateral Assignment –
Copyrights ([ENTITY])]


 

















 


EXHIBIT A


 


to


 


COLLATERAL ASSIGNMENT (COPYRIGHTS)


 


COPYRIGHT SCHEDULE


 


	
  Title of Work

  	
   

  	
  Year

  	
   

  	
  Registration Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


EXHIBIT B


 


to


 


COLLATERAL ASSIGNMENT (COPYRIGHTS)


 


FORM OF


 


ASSIGNMENT OF COPYRIGHTS


 


WHEREAS,
[                      ],
a
[                  ]
(“Assignor”), is the owner of the entire right, title and interest in
and to certain United States Copyrights in certain works and
registrations and applications therefor (“Copyrights”), including without
limitation, those as may be listed on any annex hereto; and


 


WHEREAS,
[                  ],
in its capacity as collateral agent (the “Agent” for the holders (the “Holders”)
from time to time of the Notes issued under that certain Indenture dated as of
[                    ],
2009, among FiberTower Corporation (the “Borrower”), certain
Subsidiaries of the Borrower party thereto, and Wells Fargo Bank, National
Association, as Trustee (in such capacity, the “Trustee”), governing
those certain 9.00% Senior Secured Notes due 20[    ] (the “Notes”),
desires to acquire the entire right, title, and interest in and to the
aforesaid Copyrights, together with any and all causes of action and rights of
recovery for past infringements of the Copyrights, and all of the rights vested
in the Assignor by virtue of the instruments pursuant to which Assignor became
vested with its ownership of the Copyrights;


 


NOW, THEREFORE, for good and valuable consideration received by
Assignor from Assignee, the receipt of which is hereby acknowledged,


 


1.             The Assignor hereby
sells, assigns, transfers, and conveys unto the Assignee the entire right,
title, and interest in and to the Copyrights, including each and every
Copyright that is granted on any application that is a division, substitution,
or continuation of such Copyright, and in and to each and every reissue or
extension of the Copyrights.


 


2.             The Assignor
further sells, assigns, transfers and conveys unto the Assignee the entire
right, title and interest in and to any and all causes of action and rights of
recovery for past infringement of the Copyrights.


 


3.             The terms,
covenants, and provisions of this Assignment shall inure to the benefit of
Assignee and its successors, assigns, and/or legal representatives, and shall
be binding upon the Assignor and its successors, assigns, and/or legal representatives.


 


4.             The Assignor hereby
irrevocably authorizes the Assignee to date this undated Assignment and
otherwise complete this Assignment at the time of transfer.


 

















 


IN WITNESS WHEREOF, the Assignor has executed and delivered this
instrument this           day
of                  
                  ,                    .


 


 


	
   

  	
  [                                          ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Assignment of Copyrights
([ENTITY])]


 

















 


EXHIBIT C


 


to


 


COLLATERAL ASSIGNMENT (COPYRIGHTS)


 


COPYRIGHT LICENSES


 


None.


 
















 


Exhibit J


 


FORM OF
COLLATERAL ASSIGNMENT (PATENTS)


 

















 


[FORM OF]


 


COLLATERAL ASSIGNMENT
(PATENTS) (NEW NOTES)


 


THIS COLLATERAL ASSIGNMENT (PATENTS) (NEW NOTES) (the “Assignment”),
dated as of
[              ], 2009,
is made and given by
[                ],
a
[                ]
(the “Assignor”), to WELLS FARGO BANK, NATIONAL ASSOCIATION, as
collateral agent for the Holders of the Notes defined below (in such capacity,
the “Agent,” and the Agent together with its successors and assigns, the
“Assignee”).


 


THIS ASSIGNMENT, AND THE
RIGHTS OF THE PARTIES HEREUNDER, ARE SUBJECT TO THE PROVISIONS OF THE AMENDED
AND RESTATED INTERCREDITOR AGREEMENT, DATED AS OF
[                                ],
2009, AMONG THE TRUSTEE AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO
TIME, AND THE BORROWERS AND THE GUARANTORS, AS AMENDED OR OTHERWISE MODIFIED
FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.


 


RECITALS


 


A.            Reference is made to
the Indenture dated as of
[              ],
2009 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Indenture”), among FiberTower
Corporation (the “Borrower”), certain Subsidiaries of the Borrower party
thereto, and Wells Fargo Bank, National Association, as Trustee (in such capacity,
the “Trustee”), governing those certain 9.00% Senior Secured Notes Due
20[    ] (the “Notes”).  Capitalized terms used in this Assignment and
not otherwise defined herein have the meanings set forth in the Indenture.


 


B.            In connection with
the Indenture, each of the Borrower and the Guarantors is entering into the
Collateral Agreement, dated as of even date with the Indenture (the “Collateral
Agreement”), with the Agent.  To
secure all the Note Obligations of the Assignor to the Assignee, Trustee, and the
Holders arising under the Notes and the Indenture and each other Note Document,
whether now existing or hereafter arising, the Assignor has pledged and granted
to the Assignee a security interest in the property described in the Collateral
Agreement, which property includes general intangibles including, without
limitation, patents, inventions, trademarks, trade names, copyrights, and trade
secrets.  The Assignor owns the patents
registrations set forth in Exhibit A attached hereto, and the
patents so listed are registered or application has been made for such
registration as noted in Exhibit A in the United States Patent and
Trademark Office or applicable foreign patent office.


 


C.            The Holders are
acquiring the Notes pursuant to the Mandatory Redemption and upon the terms and
conditions specified in the Indenture. 
The Indenture and the Collateral Agreement require, and the terms of the
Mandatory Redemption contemplate, among other things, the execution and delivery
of this Assignment by the Borrower and each Guarantor.  Accordingly, the parties hereto agree as
follows:


 


1.             The Assignor does
hereby collaterally (and, effective upon the giving of a notice by the Assignee
of the type described in the next sentence, absolutely) assign, to the extent
not prohibited by applicable law, all of its right, title, and interest in and
to all of the present 


 

















 


United States and foreign patents and the registrations and
applications therefor owned by the Assignor together with inventions disclosed
therein (the “Patents”), including but not limited to those registered
patents set forth on Exhibit A, and including, without limitation,
all proceeds thereof together with the right to recover for past, present, and
future infringements, all rights corresponding thereto throughout the world,
and all renewals and extensions thereof, said Patents to be held and enjoyed by
the Assignee, for its own use and behalf, and for its legal representatives,
successors, and assigns, as fully and entirely as the same would have been held
by the Assignor had this Assignment not been made.  Except to the extent the foregoing assignment
creates a collateral assignment (which assignment is currently effective), the
foregoing assignment shall be effective only upon the written notice by the Assignee
to the Assignor of the acceptance by the Assignee of this Assignment that is
given upon and occurrence and during the continuation of an Event of Default
under the Indenture, which written notice shall constitute conclusive proof of
the matters set forth therein; unless and until the giving of such notice by
the Agent, such assignment shall have no effect.  Upon the occurrence and continuation of an
Event of Default under the Indenture, the Assignee shall be entitled to
transfer the Patents pursuant to the Assignment of Patents attached hereto as Exhibit B.  Assignor hereby irrevocably authorizes the
Assignee to complete (including without limitation attaching an appropriate
updated list of Patents as an annex thereto) the undated Assignments of Patents
at the time of transfer.


 


2.             The Assignor hereby
covenants and warrants that:


 


(a)           except
for applications pending, the Patents listed on Exhibit A have been
duly issued and are subsisting and, as of the date hereof, have not been
adjudged invalid or unenforceable in whole or in part;


 


(b)           as
of the date hereof or, if later, the date on which Exhibit A is
amended as described in Section 4 hereof (but only as to Patents
that are added to Exhibit A on such date), to the Assignor’s
knowledge, each of the Patents listed on Exhibit A is valid and
enforceable;


 


(c)           as
of the date hereof, no written claim has been made to the Assignor or, to the
knowledge of the Assignor, to any other person, that any of the Patents or use
of the inventions described therein does or may violate the rights of any third
person and no claim has been made by the Assignor that any other person is
infringing upon the rights of the Assignor under the Patents, in each case
except to the extent that any such claim does not relate to any Patent that is
material to the conduct of the Assignor’s business;


 


(d)           after
the date hereof, the Assignor will give prompt written notice to the Assignee
of any claim of the type described in the preceding clause (c) (and
notwithstanding whether such claim arose on, prior to or after the date
hereof);


 


(e)           the
Assignor has the unqualified right to enter into this Assignment and perform
its terms;


 


(f)            the
Assignor will be, until the Note Obligations shall have been satisfied in full
and the Note Documents shall have been terminated, in material compliance with 


 


J-2

















 


statutory notice
requirements, and will pay all renewal, maintenance and other fees, relating to
the Patents that are material to the conduct of the Assignor’s business;


 


(g)           except
for Permitted Liens, the Assignor is the sole and exclusive owner of the entire
and unencumbered right, title, and interest in and to each of the Patents
listed on Exhibit A, free and clear of any liens, charges, and encumbrances,
including without limitation licenses and covenants by the Assignor not to sue
third persons;


 


(h)           as
of the date hereof or, if later, the date on which Exhibit A is
amended as described in Section 4 hereof, the Patents listed on Exhibit A
are all of the United States and foreign Patents and applications therefor now
owned by the Assignor; and


 


(i)            the
Assignor will, at any time upon reasonable 
request, communicate to the Assignee and its successors and assigns any
facts relating to the Patents or the history thereof that may be known to the
Assignor or its officers, employees, and agents, and cause such officers,
employees, and agents with direct knowledge of material relevant information to
testify as to the same in any infringement or other litigation at the
reasonable  request of the Assignee.


 


3.             The Assignor agrees
that, until the rights of the Assignee in the Patents are terminated pursuant
to Section 6, it will not enter into any agreement that is in
conflict with its obligations under this Assignment.


 


4.             If, before the Note
Obligations shall have been satisfied in full (other than contingent
indemnification obligations), the Assignor shall obtain rights to any new
patent, or become entitled to the benefit of any patent application or registration
or any renewal or extension of any patent registration, such shall be included
in the definition of “Patents” as used in this Assignment, Section 1
hereof shall automatically apply thereto, and the Assignor shall give to the
Assignee prompt notice thereof in writing. 
The Assignor authorizes the Assignee to modify this Assignment by
amending Exhibit A to include any future patent(s).


 


5.             The Assignor agrees
not to sell, assign, or encumber its interest in, or grant any license with
respect to, any of the Patents, except for the licenses listed on Exhibit C
attached hereto and except in the ordinary course of business and in accordance
with the terms of the Collateral Agreement and the Indenture.


 


6.             The Assignor agrees
that it will authorize, execute, and deliver to Assignee all documents
requested by Assignee to facilitate the purposes of this Assignment, including,
but not limited to, documents required to record Assignee’s interest in any
appropriate office in any domestic or foreign jurisdiction.  If the Assignee is required by the Collateral
Agreement to release its Lien in any or all of the Patents, the Assignee shall
upon request of the Assignor execute and deliver to the Assignor all
termination statements and other instruments as may be necessary or proper to
terminate this Assignment and assign to the Assignor all the Assignee’s rights
in the subject Patents.


 


7.             The Assignor
shall (a) prosecute diligently any pending Patent application as of
the date of this Assignment or thereafter until the Indenture and the Note
Documents shall have been terminated in accordance with their terms, (b) make
application on those patentable 


 


J-3

















 


inventions, products, and processes that are unregistered but capable
of being registered and that a prudent person would reasonably cause to be
registered, and (c) preserve and maintain all rights in all Patents
that a prudent person would reasonably preserve and maintain, provided that
Assignor shall not be obligated to perform any of clauses (a), (b),
or (c) above in the event that Assignor determines, in the reasonable
business judgment of Assignor, that the same is not material to the business of
Assignor.  Any expenses incurred in
connection with applications that constitute Patents shall be borne by the
Assignor.  The Assignor shall not abandon
any material application presently pending that constitutes a Patent without
the written consent of the Assignee.


 


8.             Upon the occurrence
and during the continuation of an Event of Default, the Assignee shall have the
right but shall in no way be obligated to bring suit in its own name to enforce
or to defend the Patents or any license thereunder if the Assignor has failed
to bring such suit in circumstances in which a prudent person would have
brought such suit.  The Assignor shall at
the reasonable request of the Assignee do any and all lawful acts and execute
any and all proper documents required by the Assignee in aid of such enforcement
or defense (including, without limitation, participation as a plaintiff or
defendant in any proceeding) and, if Assignor has failed to bring such suit in
circumstances in which a prudent person would have brought such suit, the
Assignor shall promptly, upon demand, reimburse and indemnify the Assignee for
all costs and expenses (including reasonable fees and disbursements of counsel)
incurred by the Assignee in the exercise of its rights under this Section.


 


9.             This Assignment
shall also serve to evidence the security interest in the Patents granted by
the Assignor to the Assignee pursuant to the Collateral Agreement.


 


10.           No course of dealing
between the Assignor and the Assignee, failure to exercise, nor any delay in
exercising, on the part of the Assignee, with respect to any right, power, or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power, or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power, or
privilege.


 


11.           All of the Assignee’s
rights and remedies with respect to the Patents, whether established hereby, by
any other agreements, or by law shall be cumulative and may be exercised
singularly or concurrently.


 


12.           This Assignment is
subject to modification only by a writing signed by the parties, except as
provided in Section 4 hereof.


 


13.           This Assignment
shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties.


 


14.           Upon payment in full of all Note
Obligations (other than Assignor’s unmatured indemnity obligations under any
Note Document), this Assignment shall terminate and all rights to the Patents
shall revert to the Assignor.


 


15.           The rights and remedies of the
Assignee, on behalf of the Secured Parties (as defined in the Collateral
Agreement), under this Assignment shall be subject to the Intercreditor
Agreement, if any, in effect from time to time. 
In the event of any conflict between 


 


J-4

















 


the terms of the Intercreditor Agreement and this Assignment, the terms
of the Intercreditor Agreement shall govern and control.


 


16.           THIS ASSIGNMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS (WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF) OF (A) THE UNITED STATES OF
AMERICA AS TO RIGHTS AND INTERESTS HEREUNDER THAT ARE REGISTERED OR FOR THE
REGISTRATION OF WHICH APPLICATION IS PENDING WITH THE UNITED STATES PATENT AND
TRADEMARK OFFICE AND (B) THE STATE OF NEW YORK IN ALL OTHER
RESPECTS.  WHENEVER POSSIBLE, EACH
PROVISION OF THIS ASSIGNMENT AND ANY OTHER STATEMENT, INSTRUMENT, OR
TRANSACTION CONTEMPLATED HEREBY OR RELATING HERETO SHALL BE INTERPRETED IN SUCH
MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION
OF THIS ASSIGNMENT OR ANY OTHER STATEMENT, INSTRUMENT, OR TRANSACTION
CONTEMPLATED HEREBY OR RELATING HERETO SHALL BE HELD TO BE PROHIBITED OR
INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE ONLY TO THE
EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF
SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS ASSIGNMENT OR ANY OTHER
STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED HEREBY OR RELATING HERETO.  IN THE EVENT OF ANY CONFLICT WITHIN, BETWEEN,
OR AMONG THE PROVISIONS OF THIS ASSIGNMENT, ANY OTHER NOTE DOCUMENT, OR ANY
OTHER STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED HEREBY OR THEREBY OR
RELATING HERETO OR THERETO, THOSE PROVISIONS GIVING THE ASSIGNEE THE GREATER
RIGHT SHALL GOVERN.


 


[The remainder of
this page is intentionally left blank.]


 


J-5

















 


IN WITNESS WHEREOF, the
Assignor has executed this instrument.


 


	
   

  	
  [                  ]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Collateral Assignment – Patents ([ENTITY])]


 

















 


EXHIBIT A


 


to


 


COLLATERAL ASSIGNMENT (PATENTS)


 


U.S. PATENTS — ACTIVE


 


None.


 


U.S. PATENTS —
APPLICATIONS


 


None.


 


FOREIGN PATENTS — ACTIVE


 


None.


 


FOREIGN PATENTS — APPLICATIONS


 


None.


 





















 


EXHIBIT B


 


to


 


COLLATERAL ASSIGNMENT (PATENTS)


 


FORM OF


ASSIGNMENT OF PATENTS


 


WHEREAS,
[                  ],
a
[                ]
(“Assignor”), is the owner of the entire right, title, and interest in
and to certain United States and foreign Patents and registrations and
applications therefor, together with the invention(s) disclosed therein (“Patents”),
including without limitation, those as may be listed on any annex hereto; and


 


WHEREAS,
[                    ],
in its capacity as collateral agent (the “Agent”) for the holders (the “Holders”)
from time to time of the Notes issued under that certain Indenture dated as of
[              ],
2009 among FiberTower Corporation (the “Borrower”), certain Subsidiaries
of the Borrower party thereto, and Wells Fargo Bank, National Association, as
Trustee (in such capacity, the “Trustee”), governing those certain 9.00%
Senior Secured Notes Due 20[    ] (the “Notes”),
desires to acquire the entire right, title, and interest in and to the
aforesaid Patents, together with the invention(s) disclosed therein, any
and all causes of action and rights of recovery for past infringements of the
Patents, and all of the rights vested in the Assignor by virtue of the
instruments pursuant to which Assignor became vested with its ownership of the
Patents, including the right, title, and interest in and to any and all
improvements acquired pursuant to the terms of such instruments;


 


NOW, THEREFORE, for good and valuable consideration received by
Assignor from Assignee, the receipt of which is hereby acknowledged,


 


1.             The Assignor hereby
sells, assigns, transfers, and conveys unto the Assignee the entire right,
title, and interest in and to the Patents together with the invention(s) disclosed
therein, including each and every Patent that is granted on any application
that is a division, substitution, or continuation of such Patent, and in and to
each and every reissue or extension of the Patents.


 


2.             The Assignor
further sells, assigns, transfers, and conveys unto the Assignee the entire
right, title, and interest in and to any and all causes of action and rights of
recovery for past infringement of the Patents.


 


3.             The terms,
covenants, and provisions of this Assignment shall inure to the benefit of
Assignee and its successors, assigns, and/or legal representatives, and shall
be binding upon the Assignor and its successors, assigns, and/or legal
representatives.


 


4.             The Assignor hereby
irrevocably authorizes the Assignee to date this undated Assignment and
otherwise complete this Assignment at the time of transfer.


 

















 


IN WITNESS WHEREOF,  the Assignor has executed and delivered this
instrument
this            day of
                            ,                     .


 


	
   

  	
  [                  ]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Assignment of Patents
([ENTITY])]


 

















 


EXHIBIT C


 


to


 


COLLATERAL ASSIGNMENT (PATENTS)


 


PATENT LICENSES


 


None.


 
















 


Exhibit K


 


FORM OF COLLATERAL ASSIGNMENTS (TRADEMARKS)


 

















 


[FORM OF]


 


COLLATERAL ASSIGNMENT
(TRADEMARKS) (NEW NOTES)


 


THIS COLLATERAL ASSIGNMENT (TRADEMARKS) (NEW NOTES) (the “Assignment”),
dated as of
[              ],
2009, is made and given by [                        ], a
[                        ]
(the “Assignor”), to WELLS FARGO BANK, NATIONAL ASSOCIATION, as
collateral agent for the Holders of the Notes defined below (in such capacity,
the “Agent,” and the Agent together with its successors and assigns, the
“Assignee”).


 


THIS ASSIGNMENT, AND THE
RIGHTS OF THE PARTIES HEREUNDER, ARE SUBJECT TO THE PROVISIONS OF THE AMENDED
AND RESTATED INTERCREDITOR AGREEMENT, DATED AS OF
[                                ],
2009, AMONG THE TRUSTEE AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO
TIME, AND THE BORROWERS AND THE GUARANTORS, AS AMENDED OR OTHERWISE MODIFIED
FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.


 


RECITALS


 


A.            Reference is made to
the Indenture dated as of
[              ],
2009 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Indenture”), among FiberTower
Corporation (the “Borrower”), certain Subsidiaries of the Borrower party
thereto, and Wells Fargo Bank, National Association, as Trustee (in such
capacity, the “Trustee”), governing those certain 9.00% Senior Secured
Notes Due 20[    ] (the “Notes”).  Capitalized terms used in this Assignment and
not otherwise defined herein have the meanings set forth in the Indenture.


 


B.            In connection with
the Indenture, each of the Borrower and the Guarantors is entering into the
Collateral Agreement, dated as of even date with the Indenture (the “Collateral
Agreement”), with the Agent.  To
secure all the Note Obligations of the Assignor to the Assignee, Trustee, and
the Holders arising under the Notes and the Indenture and each other Note
Document, whether now existing or hereafter arising, the Assignor has pledged
and granted to the Assignee a security interest in the property described in the
Collateral Agreement, which property includes general intangibles including,
without limitation, patents, inventions, trademarks, trade names, copyrights,
and trade secrets.  The Assignor owns the
trademark and trade name registrations set forth in Exhibit A
attached hereto, and the trademarks and trade names so listed are registered or
application has been made for such registration as noted in Exhibit A
in the United States Patent and Trademark Office or applicable foreign
trademark office.


 


C.            The Holders are
acquiring the Notes pursuant to the Mandatory Redemption and upon the terms and
conditions specified in the Indenture. 
The Indenture and the Collateral Agreement require, and the terms of the
Mandatory Redemption contemplate, among other things, the execution and
delivery of this Assignment by the Borrower and each Guarantor.  Accordingly, the parties hereto agree as
follows:


 

















 


1.             The Assignor does
hereby collaterally (and, effective upon the giving of a notice by the
Assignee of the type described in the next sentence, absolutely) assign, to the
extent not prohibited by applicable law, all of its right, title, and interest in and to all of
the present United States and foreign trademarks and trade names and the
registrations and applications (except for intent to use applications) therefor
owned by the Assignor (the “Trademarks”), including but not limited to
those registered trademarks and tradenames set forth on Exhibit A,
and including, without limitation, any and all common law rights in Trademarks
owned by the Assignor, all proceeds thereof together with the right to recover
for past, present, and future infringements, all rights corresponding thereto
throughout the world, and all renewals and extensions thereof, together with
the goodwill of the business associated with said Trademarks, said Trademarks
to be held and enjoyed by the Assignee for its own use and behalf, and for its
legal representatives, successors, and assigns, as fully and entirely as the
same would have been held by the Assignor had this Assignment not been
made.  Except to the extent the
foregoing assignment creates a collateral assignment (which assignment is
currently effective), the foregoing assignment shall be effective only upon the
written notice by the Assignee to the Assignor of the acceptance by the
Assignee of this Assignment that is given upon and occurrence and during the
continuation of an Event of Default under the Indenture, which written notice
shall constitute conclusive proof of the matters set forth therein; unless and
until the giving of such notice by the Agent, such assignment shall have no
effect.  Upon the occurrence and
continuation of an Event of Default under the Indenture, the Assignee shall be
entitled to transfer the Trademarks pursuant to the Assignment of Trademarks
attached hereto as Exhibit B. 
Assignor hereby irrevocably authorizes the Assignee to complete
(including without limitation attaching an appropriate updated list of
Trademarks as an annex thereto) the undated Assignments of Trademarks at the
time of transfer.


 


2.             The Assignor hereby
covenants and warrants that:


 


(a)           except
for applications pending (and intent to use applications), the Trademarks
listed on Exhibit A have been duly issued and are subsisting and,
as of the date hereof, have not been adjudged invalid or unenforceable in whole
or in part;


 


(b)           as
of the date hereof or, if later, the date on which Exhibit A is
amended as described in Section 4 hereof (but only as to
Trademarks that are added to Exhibit A on such date), to the
Assignor’s knowledge,
each of the Trademarks listed on Exhibit A is valid and
enforceable;


 


(c)           as
of the date hereof, no written claim has been made to the Assignor or, to the
knowledge of the Assignor, to any other person, that use of any of the Trademarks
does or may violate the rights of any third person and no claim has been made
by the Assignor that any other person is infringing upon the rights of the
Assignor under the Trademarks, in each case except to the extent that any
such claim does not relate to any Trademark that is material to the conduct of
the Assignor’s business;


 


(d)           after the date
hereof, the Assignor will give prompt written notice to the Assignee of any
claim of the type described in the preceding clause (c) (and
notwithstanding whether such claim arose on, prior to or after the date
hereof);


 


K-2

















 


(e)           the
Assignor has the unqualified right to enter into this Assignment and perform
its terms;


 


(f)            the
Assignor will be, until the Note Obligations shall have been satisfied in full
and the Note Documents shall have been terminated, in material compliance with
statutory notice requirements, and will pay all renewal, maintenance and other
fees, relating to its use of the Trademarks that are material to the conduct of
the Assignor’s business;


 


(g)           except
for Permitted Liens, the Assignor is the sole and exclusive owner of the entire
and unencumbered right, title, and interest in and to each of the Trademarks
listed on Exhibit A, free and clear of any liens, charges, and
encumbrances, including without limitation licenses and covenants by the
Assignor not to sue third persons;


 


(h)           as
of the date hereof or, if later, the date on which Exhibit A is
amended as described in Section 4 hereof, the Trademarks listed on Exhibit A
are all of the United States and foreign Trademarks and applications therefor
now owned by the Assignor;


 


(i)            the
Assignor will, at any time upon reasonable request, communicate to the Assignee
and its successors and assigns any facts relating to the Trademarks or the
history thereof as may be known to the Assignor or its officers, employees, and
agents, and cause such officers, employees, and agents with direct
knowledge of material relevant information to testify as to the same in any
infringement or other litigation at the reasonable request of the Assignee; and


 


(j)            the
Assignor will not, with respect to any Trademarks which are material to the
conduct of the Assignor’s business, cease to use any such Trademarks or fail to maintain
such level of quality or products sold and services rendered under any of such
Trademark at a level at least substantially consistent with the quality of the
products and services as of the date hereof, and Assignor shall take all steps
necessary to ensure that licensees of such Trademark use such consistent
standards of quality.


 


3.             The Assignor agrees
that, until the rights of the Assignee in the Trademarks are terminated
pursuant to Section 6, it will not enter into any agreement that is
in conflict with its obligations under this Assignment.


 


4.             If, before the Note
Obligations shall have been satisfied in full (other than contingent
indemnification obligations), the Assignor shall obtain rights to any new
trademark or trade name, or become entitled to the benefit of any trademark
application (except for intent to use applications), registration, trademark,
or trade name or any renewal or extension of any trademark registration, such
shall be included in the definition of “Trademarks” as used in this Assignment,
Section 1 hereof shall automatically apply thereto, and the
Assignor shall give to the Assignee prompt notice thereof in writing.  The Assignor authorizes the Assignee to
modify this Assignment by amending Exhibit A to include any future
trademark or trade name.


 


5.             The Assignor agrees
not to sell, assign, or encumber its interest in, or grant any license with
respect to, any of the Trademarks, except for the licenses listed on Exhibit C



 


K-3

















 


attached hereto and except in the ordinary course of business and in
accordance with the terms of the Collateral Agreement and the Indenture.


 


6.             The Assignor agrees
that it will authorize, execute, and deliver to Assignee all documents
requested by Assignee to facilitate the purposes of this Assignment, including,
but not limited to, documents required to record Assignee’s interest in any
appropriate office in any domestic or foreign jurisdiction.  If the Assignee is required by the Collateral
Agreement to release its Lien in any or all of the Trademarks, the Assignee
shall upon request of the Assignor execute and deliver to the Assignor all
termination statements and other instruments as may be necessary or proper to
terminate this Assignment and assign to the Assignor all the Assignee’s rights
in the subject Trademarks.


 


7.             The Assignor shall (a) prosecute
diligently any pending Trademark application as of the date of this Assignment
or thereafter until the Indenture and the Note Documents shall have been
terminated in accordance with their terms, (b) make application on those
trademarks and trade names that are unregistered but capable of being
registered and that a prudent person would reasonably cause to be registered,
and (c) preserve and maintain all rights in all Trademarks that a prudent
person would reasonably preserve and maintain, provided that Assignor shall not
be obligated to perform any of clauses (a), (b), or (c) above in the event
that Assignor determines, in the reasonable business judgment of Assignor, that
the same is not material to the business of Assignor.  Any expenses incurred in connection with
applications that constitute Trademarks shall be borne by the Assignor.  The Assignor shall not abandon any material
application presently pending that constitutes a Trademark without the written
consent of the Assignee.


 


8.             Upon the
occurrence and during the continuation of an Event of Default, the Assignee shall have the right but shall
in no way be obligated to bring suit in its own name to enforce or to defend
the Trademarks or any license thereunder if the Assignor has failed to bring
such suit in circumstances in which a prudent person would have brought such
suit.  The Assignor shall at the reasonable
request of the Assignee do any and all lawful acts and execute any and all
proper documents required by the Assignee in aid of such enforcement or defense
(including, without limitation, participation as a plaintiff or defendant in
any proceeding), and, if Assignor has failed to bring such suit in
circumstances in which a prudent person would have brought such suit, the
Assignor shall promptly, upon demand, reimburse and indemnify the Assignee for
all costs and expenses (including reasonable fees and disbursements of counsel)
incurred by the Assignee in the exercise of its rights under this Section.


 


9.             This Assignment
shall also serve to evidence the security interest in the Trademarks granted by
the Assignor to the Assignee pursuant to the Collateral Agreement.


 


10.           No course of dealing
between the Assignor and the Assignee, failure to exercise, nor any delay in
exercising, on the part of the Assignee, with respect to any right, power, or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power, or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power, or
privilege.


 


K-4

















 


11.           All of the Assignee’s
rights and remedies with respect to the Trademarks, whether established hereby,
by any other agreements, or by law, shall be cumulative and may be exercised
singularly or concurrently.


 


12.           This Assignment is
subject to modification only by a writing signed by the parties, except as
provided in Section 4 hereof.


 


13.           This Assignment
shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties.


 


14.           Upon payment in full of all Note
Obligations (other than Assignor’s unmatured indemnity obligations under any
Note Document), this Assignment shall terminate and all rights to the
Trademarks shall revert to the Assignor.


 


15.           The rights and remedies of the
Assignee, on behalf of the Secured Parties (as defined in the Collateral
Agreement), under this Assignment shall be subject to the Intercreditor
Agreement, if any, in effect from time to time. 
In the event of any conflict between the terms of the Intercreditor
Agreement and this Assignment, the terms of the Intercreditor Agreement shall
govern and control.


 


16.           THIS ASSIGNMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS (WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF) OF (A) THE UNITED STATES OF AMERICA
AS TO RIGHTS AND INTERESTS HEREUNDER THAT ARE REGISTERED OR FOR THE
REGISTRATION OF WHICH APPLICATION IS PENDING WITH THE UNITED STATES PATENT AND
TRADEMARK OFFICE AND (B) THE STATE OF NEW YORK IN ALL OTHER RESPECTS.  WHENEVER POSSIBLE, EACH PROVISION OF THIS
ASSIGNMENT AND ANY OTHER STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED
HEREBY OR RELATING HERETO SHALL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS
ASSIGNMENT OR ANY OTHER STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED
HEREBY OR RELATING HERETO SHALL BE HELD TO BE PROHIBITED OR INVALID UNDER
APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE ONLY TO THE EXTENT OF SUCH
PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISION
OR THE REMAINING PROVISIONS OF THIS ASSIGNMENT OR ANY OTHER STATEMENT,
INSTRUMENT, OR TRANSACTION CONTEMPLATED HEREBY OR RELATING HERETO.  IN THE EVENT OF ANY CONFLICT WITHIN, BETWEEN,
OR AMONG THE PROVISIONS OF THIS ASSIGNMENT, ANY OTHER NOTE DOCUMENT, OR ANY
OTHER STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED HEREBY OR THEREBY OR
RELATING HERETO OR THERETO, THOSE PROVISIONS GIVING THE ASSIGNEE THE GREATER
RIGHT SHALL GOVERN.


 


[The remainder of this page is
intentionally left blank.]


 


K-5

















 


IN WITNESS WHEREOF, the
Assignor has executed this instrument.


 


	
   

  	
  [                  ]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Collateral Assignment – Trademarks ([ENTITY])]


 

















 


EXHIBIT A


 


to


 


COLLATERAL ASSIGNMENT (TRADEMARKS)


 


TRADEMARK SCHEDULE


 


U.S. Registrations


 


	
  Trademarks

  
	
  Trademark

  	
   

  	
  Jurisdiction

  	
   

  	
  Registration Number

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Foreign Registrations


 


	
  Trademarks

  
	
  Trademark

  	
   

  	
  Country

  	
   

  	
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EXHIBIT B


 


to


 


COLLATERAL ASSIGNMENT (TRADEMARKS)


 


FORM OF


ASSIGNMENT OF TRADEMARKS


 


WHEREAS,
[                        ],
a
[                        ]
(“Assignor”), is the owner of the entire right, title and interest in
and to certain United States and foreign trademarks and tradenames and
registrations and applications therefor (“Trademarks”), including without
limitation, those as may be listed on any annex hereto; and


 


WHEREAS,
[                    ],
in its capacity as collateral agent (the “Agent”) holders (the “Holders”)
from time to time of the Notes issued under that certain Indenture dated as of
[                  ]
2009, FiberTower Corporation (the “Borrower”), certain Subsidiaries of
the Borrower party thereto, and Wells Fargo Bank, National Association, as Trustee
(in such capacity, the “Trustee”), governing those certain 9.00% Senior
Secured Notes Due 20[    ] (the “Notes”), desires to
acquire the entire right, title, and interest in and to the aforesaid
Trademarks, together with any and all causes of action and rights of recovery
for past infringements of the Trademarks, and all of the rights vested in the
Assignor by virtue of the instruments pursuant to which Assignor became vested
with its ownership of the Trademarks;


 


NOW, THEREFORE, for good and valuable consideration received by
Assignor from Assignee, the receipt of which is hereby acknowledged,


 


1.  The Assignor hereby sells,
assigns, transfers, and conveys unto the Assignee the entire right, title, and
interest in and to the Trademarks, including each and every Trademarks that is
granted on any application (except for intent to use applications) that is a
division, substitution, or continuation of such Trademarks, and in and to each
and every reissue or extension of the Trademarks.


 


2.  The Assignor further sells,
assigns, transfers, and conveys unto the Assignee the entire right, title, and
interest in and to any and all causes of action and rights of recovery for past
infringement of the Trademarks.


 


3.  The terms, covenants, and
provisions of this Assignment shall inure to the benefit of Assignee and its
successors, assigns, and/or legal representatives, and shall be binding upon
the Assignor and its successors, assigns, and/or legal representatives.


 


4.  The Assignor hereby
irrevocably authorizes the Assignee to date this undated Assignment and
otherwise complete this Assignment at the time of transfer.


 

















 


IN WITNESS WHEREOF,  the Assignor
has executed and delivered this instrument this
              
day of                                   ,
                      .


 


	
   

  	
  [                  ]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Assignment of Trademarks ([ENTITY])]


 

















 


EXHIBIT C


 


to


 


COLLATERAL ASSIGNMENT (TRADEMARKS)


 


TRADEMARK LICENSES


 


None.


 
















 


Exhibit I


 


FORM OF REGISTRATION RIGHTS
AGREEMENT


 

















 


REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights Agreement, dated
[            ]
[    ],
[          ] (this “Agreement”)
is made and entered into by and among FiberTower Corporation, a Delaware corporation
(the “Company”), each of the Guarantors (as defined below) and each
holder of securities of the Company entitled to the benefits of this Agreement
who has executed a counterpart signature page hereto (each a “Holder”
and collectively the “Holders”).


 


WHEREAS, pursuant to the indenture governing the
Company’s 9.00% Mandatorily Redeemable Convertible Senior Secured Notes due
2012 (the “Interim Notes”), which are guaranteed by the subsidiary
guarantors that are parties thereto (the “Guarantors”), the Company and
the Guarantors are required to enter into this Agreement to provide certain
registration rights with respect to the securities to be issued upon the
mandatory redemption of the Interim Notes to persons who in good faith believe
they are or may be deemed to be “affiliates” of the Company within the meaning
of Rule 144 under the Securities Act;


 


WHEREAS, without in any way limiting the foregoing,
any person receiving Common Stock (as defined below) in the Mandatory
Redemption (as defined below) and who beneficially owns 10% or more of the
outstanding shares of Common Stock following the Mandatory Redemption shall be
entitled to the benefits of this Agreement upon request (it being understood
that a person having beneficial ownership of less than 10% of the Common Stock
following the Mandatory Redemption may likewise, dependent on the facts and
circumstances, be entitled to the benefits of this Agreement if it in good
faith believes it is or may be deemed to be an “affiliate” of the Company
within the meaning of Rule 144 under the Securities Act (as defined
below)), and further, the execution of a signature page hereto by any
Holder shall not be deemed to be an admission by such Holder that such holder
is an “affiliate” of the Company within the meaning of Rule 144 under the
Securities Act or for any other purpose;


 


WHERAS, upon such mandatory redemption of the Interim
Notes, the Holders will receive the Company’s 9.00% Senior Secured Notes due
20[    ] (the “New Notes”), which will be guaranteed
(the “Guarantees”) by the Guarantors, shares of the Company’s common
stock and cash; and


 


WHEREAS, pursuant to the terms of the indenture
referenced above, a portion of the interest on the New Notes due on each
interest payment date is to be paid in additional New Notes (each a “PIK
Additional Note” and, collectively, the “PIK Additional Notes” and,
together with the guarantees thereon, the “PIK Additional Securities”);


 


NOW, THEREFORE, in consideration of the foregoing and
the mutual promises hereinafter set forth, the parties hereto agree as follows:


 


1.             Definitions.


 


(a)           As used in this Agreement, the following
defined terms shall have the following meanings:


 


“Affiliate” of any specified person means any
other person which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such specified person.  For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.


 


1

















 


“Commission” means the United States Securities
and Exchange Commission, or any other federal agency at the time administering
the Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.


 


“Common Stock” means the Company’s common
stock, par value $0.001 per share.


 


“DTC” means The Depository Trust Company.


 


“Effective Date” means the date on which the
Commission declares the Shelf Registration Statement effective or on which the
Shelf Registration Statement otherwise becomes effective.


 


“Effectiveness Period” has the meaning assigned
thereto in Section 2(b)(i) hereof.


 


“Effective Time” means the time at which the
Commission declares the Shelf Registration Statement effective or at which the
Shelf Registration Statement otherwise becomes effective.


 


“Electing Holder” has the meaning assigned
thereto in Section 3(a)(iii) hereof.


 


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


 


“Interim Indenture” means the Indenture, dated
as of
[              ]
[    ], 2009, by and among the Company, the Guarantors
party thereto and Wells Fargo Bank, National Association, as Trustee, as
amended and supplemented from time to time in accordance with its terms,
pursuant to which the Interim Notes were issued.


 


“Mandatory Redemption” means the mandatory
redemption of the Interim Notes pursuant to the terms of the Interim Indenture.


 


“Notice and Questionnaire” means a Notice of
Registration Statement and Selling Securityholder Questionnaire substantially
in the form of Appendix A hereto.


 


The term “person” means an individual,
partnership, corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.


 


“Prospectus” means the prospectus (including,
without limitation, any preliminary prospectus, any final prospectus, any free
writing prospectus relating thereto and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430B (or any
successor provision thereto) under the Securities Act) included in the Shelf Registration Statement,
as amended or supplemented by any prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by
the Shelf Registration Statement and by all other amendments and supplements to
such prospectus, including all material incorporated by reference in such
prospectus and all documents filed after the date of such prospectus by the
Company or the Guarantors under the Exchange Act and incorporated by reference
therein.


 


“Registrable Securities” means the New Notes,
the related Guarantees and the shares of Common Stock to be issued upon the
Mandatory Redemption that are owned of record or beneficially by the Holders,
as well as all other shares of Common Stock beneficially owned by such Holders
at the time of the Mandatory Redemption or thereafter acquired by such Holders
and all PIK Additional Securities to be issued to such Holders in the future
pursuant to the terms of such New Notes; provided, however,
that a security ceases to be a Registrable Security upon the earliest to occur
of (i) the date on which such security has been effectively registered
under the Securities Act and disposed of in accordance with the 


 


2

















 


Shelf Registration Statement or (ii) the date on
which such security may be distributed by the Holder thereof to the public
without any restriction as to volume, manner of sale or other restrictions
pursuant to Rule 144 (or any successor rule thereto) under the Securities
Act.


 


“Rules and Regulations” means the
published rules and regulations of the Commission promulgated under the
Securities Act or the Exchange Act, as in effect at any relevant time.


 


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


 


“Shelf Registration” means a registration
effected pursuant to Section 2 hereof.


 


“Shelf Registration Statement” means a “shelf”
registration statement filed under the Securities Act providing for the
registration of, and the sale on a continuous or delayed basis by the Holders
of, all of the Registrable Securities pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the
Commission, filed by the Company and the Guarantors pursuant to the provisions
of Section 2 hereof, including the Prospectus contained therein, any
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement


 


“Suspension Period” has the meaning assigned
thereto in Section 2(c) hereof.


 


“Trust Indenture Act” means the Trust Indenture
Act of 1939, as amended, or any successor thereto, and the rules, regulations
and forms promulgated thereunder, as the same shall be amended from time to
time.


 


(b)           Wherever there is a reference in this
Agreement to a percentage of the “principal amount” of Registrable
Securities or to a percentage of Registrable Securities, the Shares shall be
treated as representing the principal amount of Securities equal to the market
value of such Shares.


 


2.             Shelf Registration.


 


(a)           The Company and the Guarantors shall, as
soon as practicable after the date of the Mandatory Redemption, file with the
Commission a Shelf Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement and, thereafter, shall use all commercially reasonable
efforts to cause such Shelf Registration Statement to become effective under
the Securities Act as soon as practicable following the occurrence of the
Mandatory Redemption, but in any event no later than 120 days following the
date of the Mandatory Redemption; provided, however,
that no Holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement or to use the Prospectus forming a part thereof
for resales of Registrable Securities unless such Holder is an Electing Holder.


 


(b)           The Company and the Guarantors shall:


 


(i)         use all commercially reasonable efforts
to keep the Shelf Registration Statement continuously effective under the
Securities Act in order to permit the Prospectus forming a part thereof to be
usable by Holders until the earliest of (1) the registered sale of all
Registrable Securities registered under the Shelf Registration Statement
pursuant to the Shelf Registration Statement; (2) the time when all
Registrable Securities may be sold by the Holder without any restriction as to
volume, manner of sale or other restrictions pursuant to Rule 144 (or any 


 


3

















 


successor rule thereto) of the Securities Act; and (3) five years from
the Effective Date (such period being referred to herein as the “Effectiveness
Period”); and


 


(ii)        after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any Holder of Registrable
Securities that is not then an Electing Holder, take any action reasonably
necessary to enable such Holder to use the Prospectus forming a part thereof
for resales of Registrable Securities, including, without limitation, any
action necessary to identify such Holder as a selling securityholder in the
Shelf Registration Statement provided, however,
that nothing in this subparagraph shall relieve such Holder of the obligation
to return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(ii) hereof.


 


The Company and the Guarantors shall be deemed not to
have used all commercially reasonable efforts to keep the Shelf Registration
Statement effective during the requisite period if the Company or the
Guarantors voluntarily take any action that would result in Holders of
Registrable Securities covered thereby not being able to offer and sell any of
such Registrable Securities during that period, unless such action is (A) required
by applicable law and the Company and the Guarantors thereafter promptly comply
with the requirements of paragraph 3(j) below or (B) permitted
pursuant to Section 2(c) below.


 


(c)           The Company may suspend the use of the
Prospectus for a period not to exceed 30 calendar days in any 90-day period or
an aggregate of 60 days in any 12-month period, (each, a “Suspension Period”)
if the Board of Directors of the Company shall have determined in good faith
that because of valid business reasons (not including avoidance of the Company’s
or the Guarantors’ obligations hereunder), including without limitation the
acquisition or divestiture of assets, pending corporate developments, public
filings with the Commission and similar events, it is in the best interests of
the Company to suspend such use, and prior to suspending such use the Company
provides the Holders with written notice of such suspension, which notice need
not specify the nature of the event giving rise to such suspension and the
Company promptly thereafter complies with the requirements of Section 3(j) hereof.


 


3.             Registration Procedures.  In connection
with the Shelf Registration Statement, the following provisions shall apply:


 


(a)           (i)          Not more than 5 business days after the
date of the Mandatory Redemption, the Company and the Guarantors shall mail the
Notice and Questionnaire to each recipient of securities of the Company in the
Mandatory Redemption known by the Company to beneficially own 5% or more of the
outstanding shares of Common Stock following the Mandatory Redemption.  No Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of the Effective
Time, and no Holder shall be entitled to use the Prospectus forming a part
thereof for resales of Registrable Securities at any time, unless such Holder
has returned a completed and signed Notice and Questionnaire to the Company by
the deadline for response set forth therein; provided,
however, Holders of Registrable
Securities shall have at least 10 business days from the date on which the
Notice and Questionnaire is first received by such Holders to return a
completed and signed Notice and Questionnaire to the Company.


 


(ii)        After the Effective Time of the Shelf
Registration Statement, the Company and the Guarantors shall, upon the request
of any Holder of Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such Holder.  The Company and the Guarantors shall not be
required to take any action to name such Holder as a selling securityholder in
the Shelf Registration Statement or to enable such Holder to use the Prospectus
forming a part thereof for resales of Registrable Securities until such Holder
has returned a completed and signed Notice and Questionnaire to the
Company.  If a Notice and Questionnaire 


 


4

















 


is delivered to
the Company during the periods specified in Section 2(c) hereof, the
Company shall not be obligated to take action to name the Holder delivering
such Notice and Questionnaire as a selling security holder in the Shelf
Registration Statement until the termination of such period.


 


(iii)       The term “Electing Holder” shall
mean any Holder of Registrable Securities that has returned a completed and
signed Notice and Questionnaire to the Company in accordance with Section 3(a)(i) or
3(a)(ii) hereof.


 


(b)           Upon request by an Electing Holder, the
Company and the Guarantors shall furnish to each Electing Holder, prior to the
Effective Time, a copy of the Shelf Registration Statement initially filed with
the Commission, and shall furnish to such Holders, prior to the filing thereof
with the Commission, copies of each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein, and shall use all
commercially reasonable efforts to reflect in each such document, at the
Effective Time or when so filed with the Commission, as the case may be, such
comments as such Holders and their respective counsel reasonably may propose.


 


(c)           The Company and the Guarantors shall
promptly take such action as may be necessary so that (1) each of the
Shelf Registration Statement and any amendment thereto and the Prospectus
forming a part thereof and any amendment or supplement thereto (and each report
or other document incorporated therein by reference in each case) complies in
all material respects with the Securities Act and the Exchange Act and the
respective Rules and Regulations thereunder, (ii) each of the Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) each of the Prospectus forming a part of
the Shelf Registration Statement and any amendment or supplement to such
Prospectus does not at any time during the Effectiveness Period include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.


 


(d)           The Company and the Guarantors shall
promptly advise each Electing Holder, and shall confirm such advice in writing
if so requested by any such Electing Holder:


 


(i)         when a Shelf Registration Statement and
any amendment thereto has been filed with the Commission and when a Shelf
Registration Statement or any post-effective amendment thereto has become
effective;


 


(ii)        of any request by the Commission for
amendments or supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information;


 


(iii)       of the issuance by the Commission of any
stop order suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for such purpose;


 


(iv)       of the receipt by the Company or the Guarantors of any
notification with respect to the suspension of the qualification of the
securities included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and


 


(v)        of the occurrence of any event or the
existence of any state of facts that requires the making of any changes in the
Shelf Registration Statement or the Prospectus included therein so that, as of
such date, such Shelf Registration Statement and Prospectus do not contain an
untrue statement of a material fact and do not omit to state a material fact
required to be stated 


 


5

















 


therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading (which
advice shall be accompanied by an instruction to such Holders to suspend the
use of the Prospectus until the requisite changes have been made, and which
advice need not specify the nature of the event giving rise to such
suspension).


 


(e)           The Company and the Guarantors shall use
all commercially reasonable efforts to prevent the issuance, and if issued to
obtain the withdrawal at the earliest possible time, of any order suspending
the effectiveness of the Shelf Registration Statement.


 


(f)            The Company and the Guarantors shall
furnish to each Electing Holder who so requests, without charge, at least one
copy of the Shelf Registration Statement and all post-effective amendments
thereto, including financial statements and schedules, and, if such Electing
Holder so requests in writing, all reports, other documents and exhibits that
are filed with or incorporated by reference in the Shelf Registration
Statement.


 


(g)           The Company and the Guarantors shall,
during the Effectiveness Period, deliver to each Electing Holder, without
charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in the Shelf Registration Statement and any amendment or
supplement thereto as such Electing Holder may reasonably request; and the
Company and the Guarantors consent (except during the periods specified in Section 2(c) hereof
or during the continuance of any event or the existence of any state of facts
described in Section 3(d)(v) above) to the use of the Prospectus and
any amendment or supplement thereto by each of the Electing Holders in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus and any amendment or supplement thereto during the Effectiveness
Period.


 


(h)           Prior to any offering of Registrable
Securities pursuant to the Shelf Registration Statement, the Company and the
Guarantors shall (i) register or qualify and cooperate with the Electing
Holders and their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or “blue sky” laws of such jurisdictions within the United States as
any Electing Holder may reasonably request, (ii) keep such registrations
or qualifications in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for so long as may be
necessary to enable any Electing Holder to complete its distribution of
Registrable Securities pursuant to the Shelf Registration Statement, and (iii) take
any and all other actions necessary or advisable to enable the disposition in
such jurisdictions of such Registrable Securities; provided,
however, that in no event shall the Company or the Guarantors be
obligated to (A) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to so
qualify but for this Section 3(h), (B) file any general consent to
service of process in any jurisdiction where any of them is not then so subject
or (C) take any action which would subject it to material taxation in any
such jurisdiction where it is not then so subjected.


 


(i)            Unless any Registrable Securities shall
be in book-entry only form, the Company and the Guarantors shall cooperate with
the Electing Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to the
Shelf Registration Statement, which certificates, if so required by any
securities exchange upon which any Registrable Securities are listed, shall be
penned, lithographed or engraved, or produced by any combination of such
methods, on steel engraved borders, and which certificates shall be free of any
restrictive legends and in such permitted denominations and registered in such
names as Electing Holders may request in connection with the sale of
Registrable Securities pursuant to the Shelf Registration Statement.


 


6

















 


(j)            Upon the occurrence of any event or the
existence of any state of facts contemplated by paragraph 3(d)(v) above
during the Effectiveness Period, the Company and the Guarantors shall (subject
to their right to suspend the use of the Prospectus pursuant to Section 2(c) hereof)
promptly prepare and furnish, at the Company’s expense, a post-effective
amendment to any Shelf Registration Statement or an amendment or supplement to
the related Prospectus or file any other required document with the Commission
so that, as thereafter delivered to purchasers of the Registrable Securities
included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.  If the Company and the
Guarantors notify the Electing Holders of the occurrence of any event or the
existence of any state of facts contemplated by paragraph 3(d)(v) above,
the Electing Holder shall suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made (or, in the event that the Company
exercises its suspension rights under Section 2(c) hereof, until the
end of the suspension period).


 


(k)           Not later than the Effective Time of the
Shelf Registration Statement, the Company and the Guarantors shall provide
separate CUSIP numbers for all of the Registrable Securities that are debt
securities that are restricted and freely transferable.


 


(l)            The Company and the Guarantors shall use
all commercially reasonable efforts to comply with all applicable Rules and
Regulations, and the Company and the Guarantors will make generally available
to their securityholders as soon as reasonably practicable, but in any event
not later than twelve months after (i) the effective date (as defined in Rule 158(c) (or any
successor provision thereto) under the Securities Act) of the Shelf Registration Statement, (ii) the
effective date of each post-effective amendment to the Shelf Registration
Statement, and (iii) the date of each filing by the Company with the
Commission of an Annual Report on Form 10-K that is incorporated by
reference in the Shelf Registration Statement, an earnings statement of the
Company and its subsidiaries complying with Section 11(a) (or any successor
provision thereto) of
the Securities Act and the Rules and Regulations of the Commission
thereunder (including, at the option of the Company, Rule 158 (or any
successor provision thereto)).


 


(m)          The Company and the Guarantors shall
cause the Indenture to be timely qualified under the Trust Indenture Act.


 


(n)           The Company and the Guarantors shall:


 


(i)         (A) make reasonably available for
inspection by the Electing Holders and any attorney, accountant or other agent
retained by such Electing Holders, all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, and (B) cause the Company’s and the Guarantors’ and their
subsidiaries’ officers, directors and employees to supply all information
reasonably requested by such Electing Holders or any such attorney, accountant
or agent in connection with the Shelf Registration Statement, in each case, as
is customary for similar due diligence examinations; provided,
however, that all records, information and documents obtained
hereunder shall be used by such Electing Holders and any such attorney,
accountant or agent, only to exercise their due diligence responsibility and
shall be kept confidential, unless such disclosure is made in connection with a
court proceeding or required by law, or such records, information or documents
become available to the public generally or through a third party without an
accompanying obligation of confidentiality; and provided
further that, if the foregoing inspection and information gathering
would otherwise disrupt the Company’s conduct of its business, such inspection
and information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Electing Holders and the other parties 


 


7

















 


entitled thereto
by one counsel designated by and on behalf of the Electing Holders and other
parties;


 


(o)           The Company will cause the shares of
Common Stock included in the Registrable Securities to be quoted or listed on
the NASDAQ Global Market or other stock exchange or trading system on which the
Common Stock primarily trades on or prior to the Effective Time of the Shelf
Registration Statement hereunder.


 


(p)           The Company and the Guarantors shall use
all commercially reasonable efforts to take all other steps necessary to effect
the registration, offering and sale of the Registrable Securities covered by
the Shelf Registration Statement contemplated hereby; provided, however, that
in no event will the method of distribution of the Registrable Securities by
any Holder take the form of an underwritten offering of the Registrable
Securities without the prior agreement of the Company (which agreement shall
not be unreasonably withheld).


 


4.             Registration Expenses.  Except as otherwise
provided in Section 3 hereof, the Company and the Guarantors shall bear
all fees and expenses incurred in connection with the performance of their
obligations under Sections 2 and 3.  Each
Electing Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Electing
Holder’s Registrable Securities pursuant to the Shelf Registration Statement.


 


5.             Indemnification and
Contribution.


 


(a)           Indemnification by the Company
and the Guarantors.  Upon the registration of the Registrable
Securities pursuant to Section 2 hereof, the Company and the each of
Guarantors shall jointly and severally indemnify and hold harmless each
Electing Holder and each underwriter, selling agent or other securities
professional, if any, which facilitates the disposition of Registrable
Securities, and each of their respective directors, officers, employees and
agents and each person, if any, who controls them within the meaning of Section 15
(or any successor provision thereto) of the Securities Act or Section 20 (or any
successor provision thereto) of the Exchange Act (each such person being sometimes referred to as an
“Indemnified Person”) against any loss, claim, damage, liability or
expense (or actions in respect thereof), as incurred, to which such Indemnified
Person may become subject under the Securities Act, the Exchange Act, or other
federal or state statutory law or regulation, or at common law or otherwise,
insofar as such loss, claim, damage or liability (or actions in respect
thereof) arises out of or is based upon an untrue statement or alleged untrue
statement of a material fact contained in any Shelf Registration Statement
under which such Registrable Securities are to be registered under the Securities
Act, or any Prospectus contained therein, or furnished by the Company or the
Guarantors to any Indemnified Person, or any amendment or supplement thereto,
or arises out of or is based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; and to reimburse the
Indemnified Person for any legal or other expense reasonably incurred by the
Indemnified Person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or
expense to the extent (but only to the extent) arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by, or on behalf of, the Indemnified Person expressly for use in
the Shelf Registration Statement or Prospectus, or any amendment or supplement
thereto.  The indemnity agreement set forth
in this Section 5(a) shall be in addition to any liabilities that the
Company and the Guarantors may otherwise have to the Indemnified Persons.


 


8
















 


(b)           Indemnification by the Electing
Holders and any Agents and Underwriters.  Each Electing
Holder agrees, as a consequence of the inclusion of any of such Electing Holder’s
Registrable Securities in such Shelf Registration Statement, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to indemnify and hold harmless the Company and the
Guarantors, each of their respective directors, officers, employees and agents
and each person, if any, who controls the Company and the Guarantors within the
meaning of Section 15 (or any successor provision thereto) of the Securities
Act or Section 20 (or any successor provision thereto) of the Exchange Act,
against any loss, claim, damage, liability or expense (or actions in respect
thereof), as incurred, to which the Company and the Guarantors, or any such
director, officer, employee, agent or controlling person may become subject,
under the Securities Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law or otherwise, insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof) arises out of or
is based upon any untrue or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or Prospectus, or any amendment
or supplement thereto, or arises out of or is based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading, in each
case to the extent (but only to the extent) that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Shelf
Registration Statement or Prospectus, or any amendment or supplement thereto,
in reliance upon and in conformity with written information furnished to the
Company by such Electing Holder, underwriter, selling agent or other securities
professional, as the case may be, expressly for use therein; and to reimburse
the Company and the Guarantors, or any such director, officer, employee, agent
or controlling person for any legal and other expense reasonably incurred by
the Company and the Guarantors, or any such director, officer, employee, agent
or controlling person in connection with investigating, defending, settling, compromising
or paying any such loss, claim, damage, liability, expense or action.  The indemnity agreement set forth in this Section 5(b) shall
be in addition to any liabilities that any Electing Holder or underwriter,
selling agent or other securities professional which facilitates the
disposition of the Registrable Securities may otherwise have.


 


(c)           Notifications and Other
Indemnification Procedures.  Promptly
after receipt by an indemnified party under this Section 5 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 5,
notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve the indemnifying
party from any liability which it may have to any indemnified party for
contribution or otherwise under the indemnity agreement contained in this Section 5
to the extent it is not materially prejudiced as a proximate result of such
failure.  In case any such action is
brought against any such indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; provided, however, (i) if the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that a conflict may arise
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, or (iii) if the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the 


 


9

















 


indemnifying party shall not have the right to direct
the defense of such action on behalf of such indemnified party or parties and
such indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties.  Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party’s election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 5 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the indemnified
parties who are parties to such action or actions), (ii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party or (iii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party and shall be paid as
they are incurred.


 


(d)           Settlements.  An indemnifying party under this Section 5 shall
not be liable for any settlement of any proceeding entered into without its
written consent, which shall not be unreasonably withheld, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party against any loss,
claim, damage, liability or expense by reason of such settlement or
judgment.  No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or proceeding
and does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.


 


(e)           Contribution. 
If the indemnification provided for in this Section 5 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
(i) the relative benefits received by the indemnifying party or parties,
on the one hand, and the indemnified party, on the other from the sale of
Registrable Securities or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative
benefits but also the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations.  The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.  The parties
hereto agree that it would not be just and equitable if contribution pursuant
to this Section 5(d) were determined by pro rata allocation (even if
the Electing Holders or any underwriters, selling agents or other securities
professionals or all of them were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable 


 


10

















 


considerations referred to in this Section 5(d).  The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) (or any
successor provision thereto) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.  The obligations of the Electing Holders and
any underwriters, selling agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of principal amount
of Registrable Securities registered or underwritten, as the case may be, by
them and not joint.


 


(f)            Notwithstanding any other provision of
this Section 5, in no event will any (1) Electing Holder be required
to undertake liability to any person under this Section 5 for any amounts
in excess of the dollar amount of the proceeds received by such Holder from the
sale of such Holder’s Registrable Securities (after deducting any fees,
discounts and commissions applicable thereto) pursuant to any Shelf
Registration Statement under which such Registrable Securities are to be
registered under the Securities Act and (ii) underwriter, selling agent or
other securities professional be required to undertake liability to any person
hereunder for any amounts in excess of the discount, commission or other compensation
paid to such underwriter, selling agent or other securities professional with
respect to the Registrable Securities underwritten by it and distributed to the
public.


 


(g)           The obligations of the Company and the
Guarantors under this Section 5 shall be in addition to any liability
which the Company and the Guarantors may otherwise have to any Indemnified
Person and the obligations of any Indemnified Person under this Section 5
shall be in addition to any liability which such Indemnified Person may otherwise
have to the Company and the Guarantors. 
The remedies provided in this Section 5 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to an
indemnified party at law or in equity.


 


6.             Miscellaneous.


 


(a)           No Inconsistent Agreements. 
None of the Company or any of the Guarantors has entered into, and none
of the Company or any of the Guarantors will enter into after the date hereof,
any agreement which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions
hereof.  The rights granted to the
Holders hereunder do not and will not for the term of this Agreement in any way
conflict with the rights granted to the holders of the Company’s and each of
the Guarantors’ other issued and outstanding securities under any such
agreements.


 


(b)           Rules 144 and 144A. 
The Company and the Guarantors shall use their commercial reasonable
efforts to file the reports required to be filed by them under the Securities
Act and the Exchange Act in a timely manner and, if at any time the Company and
the Guarantors are not required to file such reports, they will, upon the
request of any Holder of Registrable Securities, make publicly available other
information so long as necessary to permit sales of their securities pursuant
to Rule 144 and, if available, Rule 144A. 
The Company and the Guarantors covenant that they will take such further
action as any Holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and, if available, Rule 144A
(including the requirements of Rule 144A(d)(4)).


 


(c)           Specific Performance. 
The parties hereto acknowledge that there would be no adequate remedy at
law if the Company and the Guarantors fail to perform any of their respective
obligations 


 


11

















 


hereunder and that the Holders from time to time would
be irreparably harmed by any such failure, and accordingly agree that such
Holders, in addition to any other remedy to which they may be entitled at law
or in equity, shall be entitled to specific performance of the obligations of
the Company and the Guarantors under this Agreement in accordance with the
terms and conditions of this Agreement, in any court of the United States or
any State thereof having jurisdiction.


 


(d)           Amendments and Waivers. 
This Agreement, including this Section 6(d), may be amended, and
waivers or consents to departures from the provisions hereof may be given, only
by a written instrument duly executed by the Company and the holders of a
majority in aggregate principal amount of Registrable Securities then
outstanding.  Each Holder of Registrable
Securities outstanding at the time of any such amendment, waiver or consent or
thereafter shall be bound by any amendment, waiver or consent effected pursuant
to this Section 6(d), whether or not any notice, writing or marking
indicating such amendment, waiver or consent appears on the Registrable
Securities or is delivered to such Holder.


 


(e)           Notices. 
All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, registered first-class mail, telex,
telecopier, or any courier guaranteeing overnight delivery: (a) if to a
Holder, at the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this Section 6(e),
which address initially is the address set forth under such Holder’s signature
on the signature page hereto; and (b) if to the Company or any of the
Guarantors, initially at the Company’s address set forth below, and thereafter
at such other address of which notice is given in accordance with the
provisions of this Section 6(e).


 


If
to the Company or the Guarantors:


 


To:


FiberTower
Corporation


185
Berry Street, Suite 4800


San
Francisco, California 94107


Attention:
Chief Financial Officer


Fax:
(415)
[                  ]


 


With a
copy to:


Andrews
Kurth LLP


600
Travis, Suite 4200


Houston,
Texas 77002


Attention:
W. Mark Young


Fax:
(713) 220-4285


 


All
such notices and communications shall be deemed to have been duly given at the
time delivered by hand, if personally delivered; two business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next business day
if timely delivered to an air courier guaranteeing overnight delivery.


 


(f)            Parties in Interest. 
The parties to this Agreement intend that all Holders of Registrable
Securities shall be entitled to receive the benefits of this Agreement and that
any Electing Holder shall be bound by the terms and provisions of this
Agreement by reason of such election with respect to the Registrable Securities
which are included in a Shelf Registration Statement.  All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the parties hereto and
any Holder from time to time of the 


 


12

















 


Registrable Securities, including, without limitation,
and without the need for an express assignment, subsequent Holders and the
indemnified persons referred to in Section 5 hereof.  In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be
entitled to receive the benefits of and, if an Electing Holder, be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement to the aforesaid extent.


 


(g)           Counterparts. 
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
one and the same agreement.


 


(h)           Headings. 
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.


 


(i)            GOVERNING LAW.  THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND
CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WHOLLY THEREIN, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.


 


(j)            FORUM AND WAIVER OF JURY TRIAL. 
EACH OF THE COMPANY AND EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY (I) SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY SUIT OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY; AND (II) WAIVES (A) ITS RIGHT TO A TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED
HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE HOLDERS AND FOR ANY COUNTERCLAIM RELATED
TO ANY OF THE FOREGOING AND (B) ANY OBLIGATION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT
IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


(k)           Severability. 
In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.


 


(l)            Survival. 
The respective indemnities, agreements, representations, warranties and
other provisions set forth in this Agreement or made pursuant hereto shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Electing
Holder, any director, officer or partner of such Holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such Holder.


 


13
















 


Please confirm that the foregoing correctly sets forth
the agreement between the Company, the Guarantors and you.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
  FiberTower Corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
   

  	
  Name: Thomas Scott

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FiberTower Network Services
  Corp.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Thomas Scott

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FiberTower Solutions
  Corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Thomas Scott

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ART Licensing Corp.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Thomas Scott

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ART Leasing, Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Thomas Scott

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer

  



 

















 


	
   

  	
  Teligent Services
  Acquisition, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Thomas Scott

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer

  



 


15

















 


Accepted and Agreed to:


 


	
  [Holder]

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:  

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  
	
  [Holder]

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  [Holder]

  
	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 

















 


Appendix A


 


FIBERTOWER
CORPORATION


FORM OF
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE


 


The undersigned beneficial owner of 9.00% Senior
Secured Notes due 2016 (the “Notes”) of FiberTower Corporation (“FiberTower”)
and shares of FiberTower’s common stock, $.001 par value, issued upon the
mandatory redemption of FiberTower’s 9.00% Mandatorily Redeemable Convertible
Senior Secured Notes due 2012 (the “Shares” and, together with the
Notes, the “Registrable Securities”), understands that FiberTower and
the guarantors of the Notes (the “Guarantors”) have filed or intend to
file with the Securities and Exchange Commission (the “Commission”) a
shelf registration statement or registration statements on Form S-3
(collectively, the “Shelf Registration Statement”) for the registration
and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities
Act”), of the Registrable Securities in accordance with the terms of the
Registration Rights Agreement, dated as of
[                ]
[    ], 2009 (the “Registration Rights Agreement”),
by and among FiberTower, the Guarantors and the holders of Registrable
Securities named therein.  A copy of the
Registration Rights Agreement is available from FiberTower upon request at the
address set forth below.  All capitalized
terms not otherwise defined herein shall have the meaning ascribed thereto in
the Registration Rights Agreement.


 


Each beneficial owner of Registrable Securities is
entitled to the benefits of the Registration Rights Agreement.  In order to sell or otherwise dispose of any
Registrable Securities pursuant to the Shelf Registration Statement, a
beneficial owner of Registrable Securities generally will be required to be
named as a selling securityholder in the related prospectus, deliver a
prospectus to purchasers of Registrable Securities and be bound by those
provisions of the Registration Rights Agreement applicable to such beneficial
owner (including certain indemnification provisions described below).  Beneficial owners that do not complete this
Notice and Questionnaire and deliver it to FiberTower as provided below will
not be named as selling securityholders in the prospectus and therefore will
not be permitted to sell any Registrable Securities pursuant to the Shelf
Registration Statement.  Beneficial
owners are encouraged to complete and deliver this Notice and Questionnaire
prior to the initial effectiveness of the Shelf Registration Statement so that
such beneficial owners may be named as selling securityholders in the related
prospectus at the time of effectiveness. 
Upon receipt of a completed Notice and Questionnaire from a beneficial
owner following the initial effectiveness of the Shelf Registration Statement,
FiberTower will use its commercially reasonable efforts to, no later than (i) 20
business days following receipt of such questionnaire or (ii) the end of any
period during which FiberTower has suspended use of the prospectus pursuant to
the terms of the Registration Rights Agreement, file such amendments to the
Shelf Registration Statement or supplements to the related prospectus as
necessary to permit such holder to deliver such prospectus to purchasers of
Registrable Securities.


 


Certain legal consequences arise from being named as a
selling securityholder in a Shelf Registration Statement and the related
prospectus.  Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities legal counsel regarding the consequences of being named or not being
named as a selling securityholder in a Shelf Registration Statement and the
related prospectus.


 


Notice


 


The undersigned beneficial owner (the “Selling
Securityholder”) of Registrable Securities hereby gives notice to FiberTower
of its intention to sell or otherwise dispose of Registrable Securities
beneficially owned by it and listed below in Item 3 (unless otherwise specified
under such Item 3) pursuant to the Shelf Registration Statement.  The undersigned, by signing and returning
this Notice and 


 


A-1

















 


Questionnaire, understands that it will be bound by
the terms and conditions of this Notice and Questionnaire and the Registration
Rights Agreement.


 


Pursuant to the Registration Rights Agreement, the
undersigned has agreed to indemnify and hold harmless FiberTower and the
Guarantors, each of their respective directors, officers, employees and agents
and each person, if any, who controls FiberTower or any of the Guarantors within
the meaning of either Section 15 of the Securities Act or Section 20
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
from and against certain losses arising in connection with, among other things,
statements concerning the undersigned made in the Shelf Registration Statement
or the related prospectus in reliance upon the information provided in this
Notice and Questionnaire.  If the Selling
Securityholder transfers all or any portion of the Registrable Securities
listed in Item 3 below after the date on which such information is provided to
FiberTower, the Selling Securityholder agrees to notify the transferee(s) at
the time of the transfer of its rights and obligations under this Notice and
Questionnaire and the Registration Rights Agreement.


 


Questionnaire


 


Please respond to every item, even if your response is
“none.” If you need more space for any response, please attach additional
sheets of paper.  Please be sure to write
your name and the number of the item being responded to on each such additional
sheet of paper and sign each such additional sheet of paper and attach it to
this Questionnaire.  Please be aware that
you may be asked to answer additional questions depending on your responses to
the following questions.


 


If you have any questions about the contents of this
Questionnaire or as to who should complete this Questionnaire, please contact
the Secretary of FiberTower at (415) 659-3500.


 


COMPLETED QUESTIONNAIRES SHOULD BE RETURNED TO
FIBERTOWER


IN THE FOLLOWING MANNER:


 


COPY BY FACSIMILE TO:


 


SECRETARY


FAX: [                      ]


 


WITH THE ORIGINAL COPY TO FOLLOW BY MAIL TO:


 


FIBERTOWER CORPORATION


SECRETARY


185 BERRY STREET, SUITE 4800


SAN FRANCISCO, CA 
94107


 


A-2

















 


The undersigned hereby provides the following
information to FiberTower and represents and warrants that such information is
accurate and complete:


 


1.                                      Your Identity and Background as
the Beneficial Owner of the Registrable Securities.


 


	
  (a)

  	
  Your full legal name:
  

  	
   

  
	
   

  	
   

  
	
  (b)

  	
  Your business address
  (including street address) (or residence if no business address), telephone
  number and facsimile number:

  
	
   

  	
   

  
	
   

  	
  Address: 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 

  	
   

  
	
   

  	
   

  
	
   

  	
  Fax No.: 

  	
   

  
	
   

  	
   

  
	
   

  	
  Email: 

  	
   

  
	
   

  	
   

  
	
  (c)

  	
  Are you a broker-dealer
  registered pursuant to Section 15 of the Exchange Act?

  
	
   

  	
   

  
	
   

  	
  o    
  Yes

  
	
   

  	
   

  
	
   

  	
  o    
  No

  
	
   

  	
   

  
	
  (d)

  	
  If your response to
  Item 1(c) above is no, are you an “affiliate” of a broker-dealer registered
  pursuant to Section 15 of the Exchange Act?

  
	
   

  	
   

  
	
   

  	
  o    
  Yes

  
	
   

  	
   

  
	
   

  	
  o    
  No

  
							



 


For the purposes of this Item 1(d), an “affiliate” of
a registered broker-dealer shall include any company that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such broker-dealer, and does not include any
individuals employed by such broker-dealer or its affiliates.


 


	
  (e)

  	
  Full legal name of
  person through which you hold the Registrable Securities (i.e. name of your
  broker or the DTC participant, if applicable, through which your Registrable
  Securities are held):

  
	
   

  	
   

  
	
   

  	
  Name of broker: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DTC No.: 

  	
   

  
	
   

  	
   

  
	
   

  	
  Contact person: 

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 

  	
   

  
						



 


A-3
















 


2.             Your Relationship with FiberTower.


 


	
  (a)

  	
  Have you or any of your
  affiliates, officers, directors or principal equity holders (owners of 5% or
  more of the equity securities of the undersigned) held any position or office
  or have you had any other material relationship with FiberTower (or its
  predecessors or affiliates) within the past three years?

  
	
   

  	
   

  
	
   

  	
  o     Yes

  
	
   

  	
   

  
	
   

  	
  o     No

  
	
   

  	
   

  
	
  (b)

  	
  If your response to Item 2(a) above is yes,
  please state the nature and duration of your relationship with FiberTower (or
  its predecessors or affiliates):

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


3.             Your Interest in the Registrable
Securities.


 


	
  (a)

  	
  State the type of
  Registrable Securities (Notes or Shares) and the principal amount or number
  of such Registrable Securities beneficially owned by you. Check any of the
  following that applies to you.

  
	
   

  	
   

  
	
   

  	
  o     I own
  Notes:

  
	
   

  	
   

  
	
   

  	
  Principal amount and CUSIP No.(s) of the Notes
  beneficially owned:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CUSIP No.(s): 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  o     I own
  Shares:

  
	
   

  	
   

  
	
   

  	
  Number and CUSIP No.(s) of
  Shares beneficially owned and CUSP No.(s):

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CUSIP No.(s): 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (b)

  	
  Other than as set forth
  in your response to Item 3(a) above, do you beneficially own any other
  securities of FiberTower?

  
	
   

  	
   

  
	
   

  	
  o     Yes

  
	
   

  	
   

  
	
   

  	
  o     No

  



 


A-4

















 


	
  (c)

  	
  If your answer to Item
  3(b) above is yes, state the type, the aggregate amount or number and
  their CUSIP No.(s) of such other securities of FiberTower beneficially
  owned by you:

  
	
   

  	
   

  
	
   

  	
  Type:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate Amount:

  	
   

  
	
   

  	
   

  
	
   

  	
  Number:

  	
   

  
	
   

  	
   

  
	
   

  	
  CUSIP No.(s):

  	
   

  
	
   

  	
   

  
	
  (d)

  	
  Did you acquire the
  securities listed in Item 3(a) and Item 3(b) above in the ordinary
  course of business?

  
	
   

  	
   

  
	
   

  	
  o     Yes

  
	
   

  	
   

  
	
   

  	
  o     No

  
	
   

  	
   

  
	
  (e)

  	
  At the time of your
  purchase of the securities listed in Item 3(a) or Item 3(b) above,
  did you have any agreements or understandings, directly or indirectly, with
  any person to distribute the securities?

  
	
   

  	
   

  
	
   

  	
  o     Yes

  
	
   

  	
   

  
	
   

  	
  o     No

  
	
   

  	
   

  
	
  (f)

  	
  If your response to Item 3(e) above is yes,
  please describe such agreements or understandings:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (g)

  	
  Unless otherwise
  indicated in the space provided below, all securities listed in response to
  Item 3(a) and Item 3(b) above will be included in the Shelf Registration
  Statement.  If you do not wish all such
  securities to be so included, please indicate below the principal amount or
  the number of securities to be included:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
						



 


A-5

















 


4.             Nature of Your Beneficial
Ownership.


 


	
  (a)

  	
  If the name of the beneficial
  owner of the Registrable Securities set forth in your response to Item 1(a) above
  is that of a limited partnership, state the names of the general partners of
  such limited partnership:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (b)

  	
  With respect to each
  general partner listed in Item 4(a) above who is not a natural person,
  and is not publicly held, name each shareholder (or holder of partnership
  interests, if applicable) of such general partner.  If any of these named shareholders are not
  natural persons or publicly held entities, please provide the same
  information.  This process should be
  repeated until you reach natural persons or a publicly held entity.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (c)

  	
  Name your controlling
  shareholder(s) (the “Controlling Entity”).  If the Controlling Entity is not a natural
  person and is not a publicly held entity, name each shareholder (or holder of
  partnership interests, if applicable) of such Controlling Entity.  If any of these named shareholders are not
  natural persons or publicly held entities, please provide the same
  information.  This process should be
  repeated until you reach natural persons or a publicly held entity.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (A)

  	
  (i)

  	
  Full legal name of
  Controlling Entity(ies) or natural person(s) who have sole or shared
  voting or dispositive power over the Registrable Securities:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
				



 


A-6

















 


	
   

  	
  (ii)

  	
  Business address
  (including street address) (or residence if no business address), telephone
  number and facsimile number of such person(s):

  
	
   

  	
   

  	
   

  
	
   

  	
  Address: 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 

  	
   

  
	
   

  	
   

  
	
   

  	
  Fax No.: 

  	
   

  
	
   

  	
   

  
	
   

  	
  Email: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  Name of shareholders:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (B)

  	
  (i)

  	
  Full legal name of
  Controlling Entity(ies):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  Business address
  (including street address) (or residence if no business address), telephone
  number and facsimile number of such person(s):

  
	
   

  	
   

  	
   

  
	
   

  	
  Address: 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.: 

  	
   

  
	
   

  	
   

  
	
   

  	
  Fax No.: 

  	
   

  
	
   

  	
   

  
	
   

  	
  Email: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  Name of shareholders:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
							



 


If you need more space for this response, please
attach additional sheets of paper. 
Please be sure to indicate your name and the number of the item being
responded to on each such additional sheet of paper, and to sign each such
additional sheet of paper before attaching it to this Questionnaire.  Please be aware that you may be asked to
answer additional questions depending on your responses to the following
questions.


 


5.             Plan of Distribution


 


Except as set forth below, the undersigned (including
its donees or pledgees) intends to distribute the Registrable Securities listed
above in Item 3 pursuant to the Shelf Registration Statement only as follows
(if at all):  (a) such Registrable
Securities may be sold from time to time directly by the undersigned or,
alternatively, through underwriters, broker-dealers or agents; (b) if the
Registrable Securities are sold through underwriters, broker-dealers or agents,
the Selling Securityholder will be 


 


A-7

















 


responsible for underwriting discounts or commissions
or agents’ commissions; (c) such Registrable Securities may be sold in one
or more transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale or at negotiated
prices; and (d) such sales may be effected in transactions (which may
involve block transactions) (i) on any national securities exchange or
quotation service on which the Registrable Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market or (iii) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market.


 


State any exceptions here:


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


In no event will such method(s) of distribution
take the form of an underwritten offering of the Registrable Securities without
the prior agreement of FiberTower.


 


The undersigned acknowledges its obligation to comply
with the applicable provisions of the Exchange Act and the rules thereunder
relating to stock manipulation, particularly Regulation M thereunder (or any
successor rules or regulations), in connection with any offering of
Registrable Securities pursuant to the Registration Rights Agreement.  The undersigned agrees that neither it nor
any person acting on its behalf will engage in any transaction in violation of
such provisions.


 


The undersigned beneficial owner and selling
securityholder hereby acknowledges its obligations under the Registration
Rights Agreement to indemnify and hold harmless certain persons against certain
liabilities as set forth therein. 
Pursuant to the Registration Rights Agreement, FiberTower has agreed
under certain circumstances to indemnify the undersigned beneficial owner and
selling securityholder against certain liabilities as set forth therein.


 


In accordance with the undersigned’s obligation under
the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the
undersigned agrees to promptly notify FiberTower of any material inaccuracies
or material changes in the information provided herein that may occur
subsequent to the date hereof at any time while a Shelf Registration Statement
remains effective.


 


All notices to the beneficial owner hereunder and
pursuant to the Registration Rights Agreement shall be made in writing to the
undersigned at the address set forth in Item 1(b) of this Notice and
Questionnaire.


 


By signing below, the undersigned acknowledges that it
is the beneficial owner of the Registrable Securities set forth herein,
represents that the information provided herein is accurate, consents to the
disclosure of the information contained in this Notice and Questionnaire and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus.  The undersigned
understands that such information will be relied upon by FiberTower in
connection with the preparation or amendment of the Shelf Registration Statement
and the related prospectus and any filing of a new Shelf Registration
Statement.


 


Once this Notice and Questionnaire is executed by the
undersigned beneficial owner and received by FiberTower, the terms of this
Notice and Questionnaire, and the representations and warranties 


 


A-8

















 


contained herein, shall be binding on, shall inure to
the benefit of and shall be enforceable by the respective successors, heirs,
personal representatives and assigns of FiberTower and the undersigned
beneficial owner.  This agreement shall
be governed in all respects by the laws of the State of New York.


 


A-9

















 


IN WITNESS WHEREOF the undersigned, by authority duly
given, has caused this Notice and Questionnaire to be executed and delivered
either in person or by its duly authorized agent.


 


	
   

  	
  NAME OF BENEFICIAL
  OWNER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (please
  print)

  
	
   

  	
   

  
	
   

  	
  Signature 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date: 

  	
   

  



 


A-10
















 


Exhibit
J


 


FORM OF
ESCROW AGREEMENT


 

















 


ESCROW
AND SECURITY AGREEMENT


 


THIS ESCROW AND SECURITY AGREEMENT (this “Agreement”),
dated as of
[                ],
2009, is by and among FIBERTOWER CORPORATION, a Delaware corporation (the “Company”),
Wells Fargo Bank, National Association, as the trustee under the Indenture (as
defined below) (the “Trustee”), and Wells Fargo Bank, National Association, as
escrow agent and securities intermediary (in such capacity, together with its
successors in such capacity, the “Escrow Agent”).  Capitalized terms used herein and not
otherwise defined have the meanings assigned to them in the Indenture.


 


WITNESSETH:


 


WHEREAS, the Company, certain subsidiaries of the
Company and the Trustee have entered into an Indenture dated as of the date
hereof (as amended and supplemented from time to time, the “Indenture”)
pursuant to which the Company issued $[125,000,000] aggregate principal amount
of its 9.00% Senior Secured Notes due
[        ] (as amended, supplemented
and exchanged from time to time, collectively, the “Securities”);


 


WHEREAS, the Company has agreed to place in escrow
the Initial Escrow Amount (as defined below), to be held pursuant to the terms
of this Agreement and the Indenture, and to grant the Trustee on behalf of the
holders of the Securities (the “Secured Parties”) a security interest in the
Escrow Account (as defined below) and the financial assets and any free credit
balance carried therein;


 


WHEREAS, the Escrow Agent has established, on behalf
of the Company, a securities account, which is also an escrow account, with
account number
[                ]
and account name [                ]
(the “Escrow Account”); and


 


WHEREAS, the Company, the Trustee and the Escrow
Agent are entering into this Agreement to provide for the control of the Escrow
Account and to perfect the security interest of the Trustee in the Escrow
Account and the financial assets and any free credit balance carried therein as
more fully described in this Agreement.


 


NOW, THEREFORE, in consideration of the premises and
the mutual covenants and agreements herein contained, the parties hereto agree
as follow for the express benefit of the Trustee on behalf of the Secured
Parties:


 


1.                                       Initial Escrow Amount; Interest;
Investment of Funds.


 


(a)                                  Deposit of Initial Escrow Amount by the
Company.  On the date hereof, the Company shall
deliver, or shall direct the delivery of, to the Escrow Agent, U.S. Government
Securities (as defined below) and/or cash in an amount so as to be, together
with any interest thereon, sufficient to pay the first six scheduled cash
interest payments on the Securities.  As
of the date hereof, the parties agree that the U.S. dollar amount of such U.S.
Government Securities and/or cash deposited into the Escrow Account shall be
equal to
$[                ]



 


1

















 


(the “Initial Escrow Amount”).  Following the investment of the Initial
Escrow Amount, if the Trustee determines that the actual rate of return is such
that additional funds are required to be deposited into the Escrow Account, the
Trustee shall notify the Company no later than two business days after such
determination and the Company shall deposit such additional funds to the Escrow
Account.  The computations of the Trustee
hereto shall be binding on the Company, absent manifest error.


 


(b)                                 Investment of Funds in Escrow Account. 
Funds deposited in the Escrow Account shall be invested and reinvested
only upon the following terms and conditions:


 


(i)                                     Acceptable Investments. 
All funds deposited or held in the Escrow Account at any time shall be
invested by the Escrow Agent in U.S. Government Securities in accordance with
the Company’s written instructions from time to time to the Escrow Agent;
provided, however, that the Company shall only designate investment of funds in
U.S. Government Securities maturing in an amount sufficient to and/or
generating interest income sufficient to, when added to the balance of funds
held in the Escrow Account, provide for the payment of cash interest on the
outstanding Securities on the Interest Payment Date beginning on and including
[                ],
[        ] and through and including
the Interest Payment Date on
[                ],
[        ]; provided, further, however,
that any such written instruction shall specify the particular investment to be
made, shall state that such investment is authorized to be made hereby and in
particular satisfies the requirements of the preceding proviso, shall contain
the certification referred to in Section 1(b)(ii), and shall be executed
by any officer of the Company; provided, further, however, that the Company may
from time to time substitute additional funds consisting of cash or Cash
Equivalents for some or all of the U.S. Government Securities then contained in
the Escrow Account provided that (i) the cash or Cash Equivalents have a
fair market value equal to or greater than the U.S. Government Securities so
replaced, (ii) the Company provides the certification required by Section 1(b)(ii) and
certifies that the foregoing clause (i) has been complied with and
provides an Opinion of Counsel, dated the date of the replacement, which
opinion shall meet the requirements of Section 314(b) of the Trust
Indenture Act of 1939, as amended, and shall otherwise comply with the
Indenture and (iii) the cash and Cash Equivalents are promptly invested in
U.S. Government Securities in accordance with this Section 1(b)(i).  All U.S. Government Securities shall be
assigned to and held in the possession of, or, in the case of U.S. Government
Securities maintained in book-entry form with the Federal Reserve Bank,
transferred to a book-entry account in the name of the Escrow Agent, for the
benefit of the Trustee and the ratable benefit of the Secured Parties, except
that U.S. Government Securities maintained in book-entry form with the Federal 


 


2

















 


Reserve Bank shall be transferred to a book-entry
account in the name of the Escrow Agent at the Federal Reserve Bank that
includes only U.S. Government Securities held by the Escrow Agent for its
customers and segregated by separate recordation in the books and records of
the Escrow Agent.  As used herein, “U.S.
Government Securities” shall mean securities that are (a) direct
obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or
instrumentality thereof) the payment of which the full faith and credit of the
United States of America is pledged, (b) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America or (c) obligations
of a Person the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in each case, are
not callable or redeemable at the issuer’s option, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act), as custodian with respect to any such U.S. Government
Securities or a specific payment of principal of or interest on any such U.S.
Government Securities held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian
in respect of the U.S. Government Securities or the specific payment of
principal of or interest on the U.S. Government Securities evidenced by such
depository receipt.  The Escrow Agent
shall not have any responsibility or liability for any loss which may result
from any investment made pursuant to this Agreement, or for any loss resulting
from the sale of such investment.  The
Company acknowledges that the Escrow Agent is not providing investment
supervision, recommendations, or advice. 
Investments will be made promptly following the availability of such
funds to the Escrow Agent taking into consideration the regulations and
requirements (including investment cut-off times) of the Federal Reserve wire
system, any investment provider and the Escrow Agent.


 


(ii)                                  Security Interest in Investments. No investment of funds in the Escrow
Account shall be made unless the Company has certified to the Escrow Agent and
the Trustee that, upon such investment, the Trustee will have a first priority
perfected security interest in the applicable investment for the ratable
benefit of the Secured Parties.  As set
forth in Section 11.02 of the Indenture, on the date of this Agreement,
and on each anniversary thereof unless the balance of the Available Funds (as
defined below) shall have been reduced to zero, each of the Trustee and the
Escrow Agent shall receive an Opinion of Counsel, dated each such date as
applicable, which opinion shall meet the requirements of 


 


3

















 


Section 314(b) of the Trust Indenture Act of
1939, as amended, and shall otherwise comply with the Indenture that the
Trustee, for the ratable benefit of the Secured Parties, has a first priority,
perfected security interest in the funds and securities held in the Escrow
Account.  As used herein, “Available
Funds” shall mean (A) the sum of (i) the Initial Escrow Amount and
any funds deposited pursuant to Section 1(a)(B) and (ii) interest
earned on the funds in the Escrow Account (including holdings of U.S.
Government Securities), less (B) the aggregate disbursements previously
made pursuant to this Agreement.


 


(iii)                               Principal and Interest. All principal and interest earned on
funds invested in U.S. Government Securities shall be deposited in the Escrow
Account as additional Collateral (as defined below) for the benefit of the
Trustee and the ratable benefit of the Secured Parties and shall be reinvested
in accordance with Section 1(b)(i) hereof.


 


(iv)                              Limitation on the Escrow Agent’s
Responsibilities.  The Escrow Agent’s sole responsibilities
under this Section 1(b) shall be (A) to retain possession of
certificated U.S. Government Securities and to be the registered or designated
owner of U.S. Government Securities which are not certificated, if any, (B) to
follow the Company’s written instructions given in accordance with Section 1(b)(i),
(C) to invest and reinvest funds pursuant to this Section 1(b), (D) to
maintain possession of, and dominion and control over, the Escrow Account and
the funds and U.S. Government Securities therein, unless and until such funds
are permitted to be released or disbursed in accordance with the terms of this
Agreement and (E) to use commercially reasonable efforts to reduce to cash
such U.S. Government Securities as may be required to fund any disbursement or
payment in accordance with Section 1(a)(A) or Section 11.  In connection with clause (A) above, the
Escrow Agent will maintain continuous possession in the State of New York of
certificated U.S. Government Securities and cash included in the Collateral and
will cause uncertificated U.S. Government Securities, if any, to be registered
in the book-entry system of, and transferred to an account of the Escrow Agent
or a sub-agent of the Escrow Agent at, the Federal Reserve Bank of New York.  Except as provided in Sections 6 and 7, the
Escrow Agent shall have no other responsibilities with respect to perfecting or
maintaining the perfection of the Trustee’s security interest in the Collateral
and shall not be required to file any instrument, document or notice in any
public office at any time or times.  In
connection with clause (E) above, and subject to the following sentence
and except as otherwise provided in Section 11, the Escrow Agent shall not
be required to reduce to cash any U.S. Government Securities to fund any
disbursement or payment in accordance with Section 1(a)(A) or Section 11
in the absence of written instructions signed by an officer of the Company
specifying the particular investment to liquidate.  If no such written instructions are 


 


4

















 


received, the Escrow Agent shall liquidate those U.S.
Government Securities having the lowest interest rate per annum or if none such
exist, those having the nearest maturity.


 


(v)                                 Manner of Investment. 
Funds deposited in the Escrow Account shall be invested in a manner such
that there will be sufficient funds available without any further investment by
the Company to cover all cash interest due on the outstanding Securities, as
such interest becomes due, for each Interest Payment Date occurring from the
date of this Agreement and ending on (and including)
[                ],
[        ], provided that such
investments shall have such maturities and/or interest payment dates such that
funds will be available with respect to each such Interest Payment Date no
later than the time the Escrow Agent is required to distribute such funds to
the Trustee pursuant to Section 11(a). 
The Escrow Agent shall have no responsibility for determining whether
funds held in the Escrow Account shall have been invested in such a manner so
as to comply with the requirements of this clause (v).


 


2.                                       Release of Amounts in Escrow Account. The Escrow Agent shall hold all amounts
in the Escrow Account in escrow pursuant to this Agreement until authorized
hereunder to deliver any or all of such amounts to the Company or the Trustee,
as applicable, in accordance with the requirements of Section 1(a)(A) or
Section 11 hereof or to the Trustee in accordance with Section 6
hereof.


 


3.                                       Certain Additional Agreements. The Company and the Trustee shall, upon
request by the Escrow Agent, execute and deliver to the Escrow Agent such
additional written instructions and certificates hereunder as may be reasonably
required by the Escrow Agent to give effect to the provisions of Sections 1 and
2 hereof.


 


4.                                       The Escrow Account.


 


(a)                                  The parties agrees and represent that (i) the
Escrow Account has been established in the name of the Company as recited
above, (ii) the Escrow Account is an account as to which Financial Assets
(as defined in the Code) are or may be credited and the Escrow Account is a
Securities Account (as defined in the Code), and (iii) the Escrow Account
has no Financial Assets which are registered in the name of the Company, payable
to its order or specifically endorsed to it, which have not been endorsed to
the Escrow Agent or in blank.


 


(b)                                 The Escrow Agent agrees and represents
that (i) this Agreement is the valid and legally binding obligation of the
Escrow Agent, (ii) except for the claims and interests of the Trustee for
the benefit of the Secured Parties and the claims and interests of the Company
in the Escrow Account, the Escrow Agent does not know of any claim to or
interest in the Escrow Account or in any Financial Asset contained therein, (iii) the
Escrow Agent shall, subject to the terms of 


 


5

















 


this Agreement, treat the Company as entitled to
exercise the rights that comprise any Financial Asset credited to the Escrow
Account and (iv) all property delivered to the Escrow Agent for deposit to
the Escrow Account will promptly be credited to the Escrow Account.  The Escrow Agent will treat all property held
by it in the Escrow Account as Financial Assets under Article 8 of the
Uniform Commercial Code of the State of New York (the “Code”), provided,
however, in the event that, by reason of mandatory provisions of law, any or
all of the perfection or priority of the security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term “Code” shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such perfection or priority and for purposes of definitions
related to such provisions, and any reference to any section of the Code herein
shall be a reference to such section as it is modified and amended from time to
time and to any successor section.


 


5.                                       No Withdrawals. 
The Escrow Agent shall neither accept nor comply with any entitlement
order from the Company withdrawing any financial assets from the Escrow Account
nor deliver any such financial assets to the Company nor pay any free credit
balance or other amount owing from the Escrow Agent to the Company, except in
the circumstances described in Section 11(b), 11(c), 11(d) or 11(e) hereof,
as applicable, and only if the requirements to such transfer set forth in Section 11(b),
11(c), 11(d) or 11(e), as applicable, have been satisfied.  Notwithstanding the foregoing sentence or
anything to the contrary herein, following delivery to the Escrow Agent of a
Notice of Exclusive Control (as defined below) from the Trustee and, until such
Notice of Exclusive Control is withdrawn by the Trustee, the Escrow Agent shall
comply only with entitlement orders given by the Trustee.


 


6.                                       Grant of Security Interest; Priority of
Security Interest.


 


(a)                                  The Company hereby grants to the Trustee
for the benefit of the Secured Parties, to secure all obligations and
indebtedness of the Company under the Securities, a first priority security
interest in the Escrow Account and all funds and securities contained therein
and any and all proceeds of the foregoing (the “Collateral”).  The Escrow Agent consents to such security
interest.  The Escrow Agent hereby waives
and releases all liens, encumbrances, claims and rights of setoff the Escrow
Agent may have against the Escrow Account or any and all funds and securities
contained in the Escrow Account and agrees that, except with respect to its
unpaid fees, non-reimbursed expenses and unsatisfied indemnification
obligations, it will not assert any such lien, encumbrance, claim or right or
the priority thereof against the Escrow Account or any funds or securities contained
in the Escrow Account.  The Escrow Agent
will not agree with any third party that the Escrow Agent will comply with
orders concerning the Escrow Account originated by such third party without the
prior written consent of the Trustee and the Company.  The Company represents and warrants that,
except for the security interest granted to the Trustee for the ratable benefit
of the Secured Parties hereby, the Company 


 


6

















 


owns the Collateral free and clear of any and all
liens, encumbrances and claims of others.


 


(b)                                 The Company and the Trustee hereby
irrevocably instruct the Escrow Agent to, and the Escrow Agent shall, (i) (A) maintain
sole dominion and control over funds and U.S. Government Securities in the
Escrow Account for the benefit of the Trustee for the ratable benefit of the
Secured Parties to the extent specifically required herein, (B) maintain,
or cause its agent within the State of New York to maintain, possession of all
certificated U.S. Government Securities purchased hereunder that are physically
possessed by the Escrow Agent in order for the Trustee for the ratable benefit
of the Secured Parties to enjoy a continuous perfected first priority security
interest therein under the law of the State of New York (the Company hereby
agreeing that in the event any certificated U.S. Government Securities are in
the possession of the Company or a third party, the Company shall undertake to
deliver all such certificates to the Escrow Agent), (C) take all steps
specified by the Company pursuant to paragraph (a) above to cause the
Trustee for the ratable benefit of the Secured Parties to enjoy a continuous
perfected first priority security interest under the New York Uniform
Commercial Code and any applicable law of the State of New York in all
Collateral consisting of securities entitlements including, as applicable, all
U.S. Government Securities purchased hereunder that are not certificated, if
any, and (D) maintain the Collateral free and clear of all liens and
encumbrances in favor of, and claims against, the Escrow Agent of any nature
now or hereafter existing in favor of anyone other than the Trustee for the
benefit of the Secured Parties; (ii) promptly notify the Trustee if the
Escrow Agent receives written notice that any person other than the Trustee has
a lien, encumbrance or claim upon any portion of the Collateral; and (iii) in
addition to disbursing amounts held in escrow pursuant to any order given to it
by the Trustee pursuant to Section 1(a)(A) or Section 11, upon
receipt of written notice from the Trustee of the acceleration of the maturity
of the Securities, and direction from the Trustee to disburse all Available
Funds to the Trustee, as promptly as practicable, disburse all funds held in the
Escrow Account to the Trustee and transfer title to all U.S. Government
Securities held by the Escrow Agent hereunder to the Trustee.  The lien and security interest provided for
by this Section 6 shall automatically terminate and cease to exist, and
shall not extend or apply to, and the Trustee shall have no security interest
provided for by this Section 6 in, any funds disbursed by the Escrow Agent
to the Company pursuant to this Agreement to the extent not inconsistent with
the terms hereof.  Notwithstanding any
other provisions contained in this Agreement, the Escrow Agent shall act solely
as the Trustee’s agent in connection with its duties under this Section 6.  The Escrow Agent shall not have any right to
receive compensation from the Trustee and shall have no authority to obligate
the Trustee or to subordinate, compromise or pledge its security interest
hereunder.  Accordingly, the Escrow Agent
is hereby directed to cooperate with the Trustee in the exercise of its rights
in the Collateral provided for herein.


 


7

















 


(c)                                  The Company hereby appoints the Trustee
as its attorney-in-fact with full power of substitution, upon an Event of
Default as defined in the Indenture, to do any act which the Company is obligated
hereto to do, and the Trustee may exercise such rights as the Company might
exercise with respect to the Collateral and take any action in the Company’s
name to protect the Trustee’s security interest hereunder.  In addition to the rights provided under Section 6(b) hereof,
upon an Event of Default and for so long as such Event of Default continues,
the Trustee may exercise in respect of the Collateral, in addition to other
rights and remedies provided for herein or otherwise available to it, all the
rights and remedies of a secured party under the Code or other applicable law,
and the Trustee may also upon obtaining possession of the Collateral as set
forth herein, without notice to the Company except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private
sale, at any exchange, broker’s board or at any of the Trustee’s offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Trustee may deem commercially reasonable.  The Company acknowledges and agrees that any
such private sale may result in prices and other terms less favorable to the
seller than if such sale were a public sale. 
The Company agrees that, to the extent notice of sale shall be required
by law, at least ten (10) days’ notice to the Company of the time and
place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. 
The Trustee shall not be obligated to make any sale regardless of notice
of sale having been given.  The Trustee
may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.


 


7.                                       Control. The Escrow Agent will comply with entitlement orders
originated by the Trustee concerning the Escrow Account without further consent
by the Company.  Except as otherwise
provided in Section 5 and 6 above, the Escrow Agent shall make trades of Financial
Assets held in the Escrow Account at the instruction of the Company, or its
authorized representative, and comply with entitlement orders concerning such
trades from the Company, or its authorized representative in any of the
investments permitted under this Agreement, until such time as the Trustee
delivers a written notice to the Escrow Agent which states that an Event of
Default has occurred under the Indenture and that the Trustee is exercising
exclusive control over the Escrow Account, unless and until such notice is
withdrawn.  Such notice is referred to
herein as the “Notice of Exclusive Control.” After the Escrow Agent receives a
Notice of Exclusive Control, it will immediately cease complying with all
instructions or entitlement orders concerning the Escrow Account originated by
the Company or its representative.  The
Trustee agrees with the Company that it shall not deliver a Notice of Exclusive
Control to the Escrow Agent unless and until an Event of Default shall have
occurred and be continuing.  Further, the
Trustee agrees that it shall not deliver entitlement orders except as provided
in Section 11 hereof.


 


8.                                       Statements, Confirmations and Notices of
Adverse Claims.
The Escrow Agent will send copies of all statements, confirmations and other
correspondence concerning the 


 


8

















 


Escrow Account simultaneously to the Company and the
Trustee at the addresses set forth in Section 12(f) of this
Agreement.  If any person asserts in
writing any lien, encumbrance or adverse claim against the Escrow Account or in
any Financial Asset carried therein, the Escrow Agent will promptly notify the
Company and the Trustee thereof.


 


9.                                       Escrow Agent.


 


(a)                                  The Escrow Agent shall be obligated only
to perform the duties specifically set forth in this Agreement, which shall be
deemed purely ministerial in nature, and shall under no circumstances be deemed
to be a fiduciary to any party or any other person.  The parties agree that the Escrow Agent shall
not assume any responsibility for the failure of the parties (other than the
Escrow Agent) to perform in accordance with this Agreement.  This Agreement sets forth all matters
pertinent to the escrow contemplated hereunder, and no additional obligations
of the Escrow Agent shall be inferred from the terms of this Agreement or any
other agreement.  In no event shall the
Escrow Agent be liable, directly or indirectly, for any (i) damages or
expenses arising out of the services provided hereunder, other than damages
which result from the Escrow Agent’s gross negligence or willful misconduct, or
(ii) special or consequential damages, even if the Escrow Agent has been
advised of the possibility of such damages.


 


(b)                                 Except for advancing margin or other
credit to the Company in violation of Section 6 above, the Escrow Agent
shall have no responsibility or liability to the Trustee for making trades of
Financial Assets held in the Escrow Account at the instruction of the Company,
or its authorized representative, or complying with entitlement orders in
accordance with Section 5 above concerning the Escrow Account from the
Company, or its authorized representative, which are received by the Trustee
before the Escrow Agent receives a Notice of Exclusive Control. The Escrow
Agent shall have no responsibility or liability to the Company for complying
with a Notice of Exclusive Control or complying with entitlement orders
concerning the Escrow Account originated by the Trustee.  The Escrow Agent shall have no duty to
investigate or make any determination as to whether the conditions for the
issuance of a Notice of Exclusive Control contained in any agreement between
the Company and the Trustee have occurred. 
Neither this Agreement nor the Security Agreement imposes or creates any
obligation or duty of the Escrow Agent other than those expressly set forth
herein.


 


(c)                                  The Escrow Agent, in its capacity as
such, shall have no duties or responsibilities, including, without limitation,
a duty to review or interpret the Indenture, except those expressly set forth
herein.  Except for this Agreement, the
Escrow Agent, in its capacity as such, is not a party to, or bound by, any
agreement that may be required under, evidenced by, or arise out of the
Indenture.


 


9
















 


(d)                                 If the Escrow Agent shall be uncertain as
to its duties or rights hereunder or shall receive instructions from any of the
undersigned with respect to the Escrow Account, which, in its opinion, are in
conflict with any of the provisions of this Agreement, it shall be entitled to
refrain from taking any action until it shall be directed otherwise in writing
by a joint written instruction of the Company and the Trustee or by order of a
court of competent jurisdiction.  The
Escrow Agent shall be protected in acting upon any notice, request, waiver,
consent, receipt or other document reasonably believed by the Escrow Agent to
be signed by the proper party or parties and shall not be liable with respect
to any action taken or omitted to be taken by it in accordance with any
instruction received by it hereunder. 
Concurrent with the execution of this Agreement, the Company shall
deliver to the Escrow Agent an authorized signers form in the form of Exhibit A
to this Agreement.


 


(e)                                  The Escrow Agent shall not be liable for
any act or omission while acting in good faith. 
Any act or omission by the Escrow Agent pursuant to the advice of its
attorneys shall be conclusive evidence of such good faith.  The Escrow Agent shall not be liable for the
alteration, modification or elimination of any right permitted or given under
any instructions and/or in any document deposited under this Agreement due to
any delay, any statute of limitations or due to any other reason.  The Escrow Agent shall have no further
responsibility or liability whatsoever to the Company or the Trustee following
a partial or complete distribution of the funds and securities held in the
Escrow Account pursuant to this Agreement. 
The Escrow Agent shall not incur any liability with respect to any act
or omission in reliance upon any document, including any written notice or
instruction provided for in this Agreement. 
In performing its obligations hereunder, the Escrow Agent shall be
entitled to presume, without investigation or inquiry, the due execution,
validity, effectiveness and enforceability of all documents it receives and
shall be entitled to rely upon the genuineness of the signatures of the
signatories of such documents, and also the truth and accuracy of any
information contained therein.  The
Escrow Agent assumes no responsibility for the validity or sufficiency of any
instrument held as in the Escrow Account.


 


(f)                                    The Escrow Agent may consult legal
counsel or other professionals of choice in the event of any dispute or
question as to the construction of this Agreement, or the Escrow Agent’s duties
hereunder, and the Escrow Agent shall incur no liability and shall be fully
protected with respect to any action taken or omitted in good faith in
accordance with the opinion and instructions of counsel or such other
professionals.  The Escrow Agent may in
all cases pay reasonable compensation to such counsel and shall be entitled to
reimbursement as set forth in Section 9.1(h) for all such
compensation paid.  The Escrow Agent may
perform its duties through its agents, attorneys, custodians or nominees.


 


(g)                                 In the event of any disagreement between
the undersigned or any of them, and/or any other person, resulting in adverse
claims and demands being made in connection with or for the Escrow Account, the
Escrow Agent shall be 


 


10

















 


entitled at its option to refuse to comply with any
such claim or demand, so long as such disagreement shall continue, and in so
doing the Escrow Agent shall not be or become liable for damages or interest to
the undersigned or any of them or to any person named herein for its failure or
refusal to comply with such conflicting or adverse demands.  The Escrow Agent shall be entitled to continue
so to refrain and refuse so to act until all differences shall have been
resolved by agreement and the Escrow Agent shall have been notified thereof in
writing signed by the Company and the Trustee. 
In the event of such disagreement which continues for ninety (90) days
or more, the Escrow Agent in its discretion may, but shall be under no
obligation to, file a suit in interpleader for the purpose of having the
respective rights of the claimants adjudicated and may deposit with the court
all documents and property held hereunder. 
The Company agrees to pay all reasonable out-of-pocket costs and
expenses incurred by the Escrow Agent in such action, including reasonable
attorneys’ fees and disbursements.  In no
event shall the institution of such interpleader action impair the rights of
the Escrow Agent described elsewhere in this Agreement.  The parties other than the Escrow Agent
further agree to pursue any redress or recourse in connection with such a
dispute, without making the Escrow Agent a party to same.


 


(h)                                 The Company agrees to indemnify and hold
harmless the Escrow Agent from and against, any and all loss, liability, cost,
damage and expense, including, without limitation, counsel fees, which the
Escrow Agent may suffer or incur by reason of any action, claim or proceeding
brought against the Escrow Agent arising out of or relating in any way to this
Agreement or any transaction to which this Agreement relates unless such
losses, liabilities, costs damages and expenses shall have been finally
adjudicated to have resulted from the willful misconduct or gross negligence of
the Escrow Agent.  The Escrow Agent may
consult counsel of its choice with respect to any question arising under this
Agreement, and the Escrow Agent shall not be liable for any action taken or
omitted in good faith upon advice of such counsel.  The provisions of this Section 9(h) shall
survive the resignation or removal of the Escrow Agent and the termination of
this Agreement.


 


(i)                                     The Escrow Agent, in its capacity as
such, does not have any interest in the Escrow Account or any funds or
securities deposited hereunder but is serving as escrow holder only and having
only possession thereof.  This paragraph
shall survive notwithstanding any termination of this Agreement or the resignation
of the Escrow Agent.


 


(j)                                     The Escrow Agent (and any successor
Escrow Agent) may at any time resign as such by giving written notice of its
resignation to the parties hereto at least thirty (30) days prior to the date
specified for such resignation to take effect. 
The Escrow Agent may be removed at any time by act of the Trustee along
with payment of all fees and expenses to which it is entitled through the date
of termination.  Upon the effective date
of such resignation or removal of the Escrow Agent, all funds and securities in
the Escrow Account shall be 


 


11

















 


delivered by it to such successor Escrow Agent or as
otherwise shall be instructed in writing by the Company and the Trustee,
whereupon the Escrow Agent shall be discharged of and from any and all further
obligations arising in connection with this Agreement.  If at that time the Escrow Agent has not
received such instruction, the Escrow Agent’s sole responsibility after that
time shall be to safekeep the Escrow Account and all funds and securities
contained therein until receipt of a designation of successor Escrow Agent, or
a joint written instruction as to disposition of the Escrow Account and all
funds and securities contained therein by the Company and the Trustee or a
final order of a court of competent jurisdiction mandating disposition of the
Escrow Account and all funds and securities contained therein.  If the Escrow Agent is removed or resigns,
the Company, by a Board Resolution, shall promptly appoint a successor Escrow
Agent.  If the Company has failed to
appoint a successor prior to the expiration of thirty (30) days following
receipt of the notice of resignation or removal, the Escrow Agent may petition
any court of competent jurisdiction for the appointment of a successor Escrow
Agent or for other appropriate relief, and any such resulting appointment shall
be binding upon all of the parties.


 


(k)                                  The Escrow Agent hereby accepts its
appointment and agrees to act as Escrow Agent under the terms and conditions of
this Agreement and acknowledges receipt of the Initial Escrow Amount.  The Company agrees to pay to the Escrow Agent
as payment in full for its services hereunder the Escrow Agent’s compensation
as mutually agreed by the parties hereto, provided, however, that in the event
that the conditions for the disbursement of funds under this Agreement are not
fulfilled, or at the request of the Company, the Escrow Agent renders any
material service not contemplated in this Agreement, or there is any assignment
of interest in the subject matter of this Agreement, or any material
modification hereof, or if any material controversy arises hereunder, or the
Escrow Agent is made a party to any litigation pertaining to this Agreement, or
the subject matter hereof, then the Escrow Agent shall be reasonably
compensated for such requested services and reimbursed for all costs and
expenses, including reasonable attorney’s fees, occasioned by any delay,
controversy, litigation or event, and the same shall be recoverable from the
Company.  The Company further agrees to
reimburse the Escrow Agent for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Escrow Agent in the
performance of its duties hereunder (including reasonable fees, and
out-of-pocket expenses and disbursements, of its counsel).  If fees are not paid within thirty (30) days
of the date due, the Escrow Agent in its sole discretion may charge interest on
its fees at the rate of 12% per annum. 
The obligations of the Company under the preceding two sentences shall
survive the resignation or removal of the Escrow Agent and the termination of
this Agreement until extinguished by any applicable statute of limitations.


 


(l)                                     The permissive right of the Escrow Agent
to do things enumerated in the Agreement shall not be construed as duties.


 


12

















 


(m)                               No provision of this Agreement shall
require the Escrow Agent to risk or advance its own funds or otherwise incur
any financial liability in the performance of its duties or the exercise of its
rights under this Agreement.


 


(n)                                 Any corporation or association into which
the Escrow Agent may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer all or substantially all of
its corporate trust business and assets as a whole or substantially as a whole,
or any corporation or association resulting from any such conversion, sale,
merger, consolidation or transfer to which the Escrow Agent is a party, shall
be and become the successor Escrow Agent under this Agreement and shall have
and succeed to the rights, powers, duties, immunities and privileges as its
predecessor, without the execution of filing of any instrument or paper or the
performance any further act.


 


(o)                                 In the event that any funds or securities
held in the Escrow Account shall be attached, garnished or levied upon by any
court order, or the delivery thereof shall be stayed or enjoined by an order of
a court, or any order, judgment or decree shall be made or entered by any court
order affecting the property deposited under this Agreement, the Escrow Agent
is hereby expressly authorized, in its sole discretion, to obey and comply with
all writs, orders or decrees so entered or issued, which it is advised by legal
counsel of its own choosing is binding upon it, whether with or without
jurisdiction, and in the event that the Escrow Agent obeys or complies with any
such writ, order or decree it shall not be liable to any of the parties or to
any other person, firm or corporation, b y reason of such compliance
notwithstanding such writ, order or decree be subsequently reversed, modified,
annulled, set aside or vacated.


 


10.                                 Tax Reporting. The Company shall be responsible for
reporting all items of income, gain, expense and loss recognized in the Escrow
Account.


 


11.                                 Interest Payments; Partial Release; Other
Payments, Termination; Remedies:


 


(a)                                  Immediately prior to or on each of the
first six scheduled Interest Payment Dates for the Securities, the Company
shall either (i) deposit with the Trustee cash from funds other than those
contained in the Escrow Account in an amount that is sufficient to pay the cash
interest then due or (ii) direct the Trustee to issue a release order to
the Escrow Agent providing for the release to the Trustee from the Escrow
Account of cash sufficient to pay the cash interest on the Securities then due
as directed; provided, however, that if the Company fails to effect either of
options (i) or (ii) in this Section 11(a) by 10:00 A.M.
New York time on the Business Day immediately prior to the applicable Interest
Payment Date, the Trustee shall direct the Escrow Agent to liquidate
investments (to the extent required), and disburse to the Trustee the amounts
required to be paid on the Securities as cash interest with respect to such
applicable Interest Payment Date.  The
Trustee shall incur no liability arising out of its choice of investments to be
liquidated pursuant to this Section 11(a).


 


13

















 


(b)                                 If the Company has exercised the option
set forth in clause (i) of Section 11(a), the Trustee promptly shall
direct the Escrow Agent to transfer, and the Escrow Agent promptly shall
transfer, an amount equal to such amount deposited with the Trustee (the “Release
Amount”) to the Company to an account in the name of the Company or its
designee as designated by the Company or its authorized representative.  Concurrent with such transfer of the Release
Amount, the security interest in the amounts so transferred shall be released
and terminated without further notice, agreement or other action by any party
hereto.


 


(c)                                  In the event the Company repurchases any
Holder’s Securities pursuant to Article 3 of the Indenture it shall direct
the Trustee to issue a release order to the Escrow Agent providing for the
release to the Trustee from the Escrow Account of cash in an amount equal to
such Holder’s pro rata portion of the amounts in the Escrow Account.  The Trustee shall incur no liability arising
out of its choice of investments to be liquidated pursuant to this Section 11(c).


 


(d)                                 If at any time, provided that at such
time an Event of Default is not continuing, the amount of funds and securities
in the Escrow Account exceeds the amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants selected by the Company, to
pay in full the first six scheduled cash interest payments on the Securities
not theretofore paid (the amount of such excess referred to as the “Excess
Amount”), and upon receipt of such public accountant’s opinion and written
direction from the Company, the Trustee promptly shall direct the Escrow Agent
to transfer, and the Escrow Agent promptly shall transfer, an amount equal to
the Excess Amount to the Company to an account in the name of the Company or
its designee as designated by the Company or its authorized
representative.  Concurrent with such
transfer of the Excess Amount, the security interest provided for by Section 6
of this Agreement in the amount so transferred shall be released and terminated
without further notice, agreement or other action by any party hereto.


 


(e)                                  After such time as the first six
scheduled cash interest payments on the Securities have been made, the Trustee
promptly shall direct the Escrow Agent to transfer, and the Escrow Agent
promptly shall transfer, any and all remaining funds and securities in the
Escrow Account and any proceeds thereof to the Company to an account in the
name of the Company or its designee as designated by the Company or its
authorized representative and to take such other steps as the Company may
request to vest full ownership and control of the Escrow Account in the
Company.  Concurrent with such transfer,
the security interest provided for by Section 6 of this Agreement in the
Escrow Account and the amount so transferred shall be released and terminated
without further notice, agreement or other action by any party hereto.


 


(f)                                    THE RIGHTS AND POWERS GRANTED HEREIN TO
TRUSTEE HAVE BEEN GRANTED IN ORDER TO PERFECT ITS SECURITY INTEREST 


 


14

















 


IN THE ESCROW ACCOUNT, ARE POWERS COUPLED WITH AN
INTEREST AND WILL NEITHER BE AFFECTED BY THE BANKRUPTCY OR INSOLVENCY OF THE
COMPANY NOR BY THE LAPSE OF TIME. THE OBLIGATIONS OF THE ESCROW AGENT UNDER
SECTIONS 4, 5, 6, 7 AND 8 AND ITS RIGHTS UNDER SECTION 9 ABOVE SHALL
CONTINUE IN EFFECT UNTIL THE SECURITY INTEREST OF THE TRUSTEE IN THE ESCROW
ACCOUNT HAS BEEN TERMINATED PURSUANT TO THE TERMS OF THIS AGREEMENT AND THE
TRUSTEE HAS NOTIFIED THE ESCROW AGENT OF SUCH TERMINATION IN WRITING.  UPON RECEIPT OF SUCH NOTICE, (I) THE
OBLIGATIONS OF THE ESCROW AGENT UNDER SECTIONS 4, 5, 6, 7 AND 8 AND ITS RIGHTS
UNDER SECTION 9 ABOVE WITH RESPECT TO THE OPERATION AND MAINTENANCE OF THE
ESCROW ACCOUNT AFTER THE RECEIPT OF SUCH NOTICE SHALL TERMINATE, (II) THE
TRUSTEE SHALL HAVE NO FURTHER RIGHT TO ORIGINATE ORDERS CONCERNING THE ESCROW
ACCOUNT AND (III) THE ESCROW AGENT SHALL PROMPTLY TAKE SUCH STEPS AS THE
COMPANY MAY REQUEST TO VEST FULL OWNERSHIP AND CONTROL OF THE ESCROW
ACCOUNT IN THE COMPANY, INCLUDING, BUT NOT LIMITED TO, TRANSFERRING ALL OF THE
FUNDS AND SECURITIES AND ALL PROCEEDS THEREOF TO ANOTHER ACCOUNT IN THE NAME OF
THE COMPANY OR ITS DESIGNEE AS DESIGNATED BY THE COMPANY OR ITS AUTHORIZED
REPRESENTATIVE.


 


12.                                 Miscellaneous.


 


(a)                                  Entirety. This Agreement represents the entire agreement of
the parties hereto with respect to the subject matter herein, and supersedes
all prior agreements and understandings, oral or written, if any, including any
correspondence relating thereto or the transactions contemplated herein.


 


(b)                                 Waivers, Amendments, Etc. Except as expressly, provided hereby,
the terms of this Agreement may be waived, altered, amended, modified, changed,
discharged or terminated only by an instrument in writing duly executed by each
of the parties hereto, subject to compliance with the provisions of the
Indenture.


 


(c)                                  Severability. If any provision hereof is illegal,
invalid or unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (i) the other provisions hereof shall remain in full
force and effect in such jurisdiction and shall be liberally construed in order
to carry out the intentions of the parties hereto as nearly as may be possible
and (ii) the illegality, invalidity or unenforceability of any provision
in any jurisdiction shall not affect the illegality, validity or enforceability
of such provision in any other jurisdiction.


 


15

















 


(d)                                 Successors. This Agreement shall be binding upon the Company,
its successors and assigns and shall inure, together with the rights and
remedies hereunder, to the benefit of the Escrow Agent and its successors and
assigns and to the Trustee and its successors and assigns for the ratable
benefit of the Secured Parties; provided, however, that the Company may not
assign its rights or delegate its duties hereunder without first filing with
the Escrow Agent a certificate of the Company that such assignment or transfer
is permitted by the Indenture.


 


(e)                                  Rules of Construction. In this Agreement, words in the
singular number include the plural, and in the plural include the singular;
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word “or” is disjunctive but not exclusive. 
The captions and section numbers appearing in this Agreement are
inserted only as a matter of convenience. 
They do not define, limit or describe the scope or intent of the
provisions of this Agreement.  Except as
otherwise defined or capitalized herein, all terms herein shall have the
meanings ascribed thereto in Article 8 of the Code.


 


(f)                                    Notices. All notices, requests, consents and other communications
provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by facsimile) delivered to the intended
recipient at the address below or, as to any party, at such other address as
shall be designated by such party in a notice to the other party.  Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by facsimile or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.


 


If to the Company:


 


c/or FiberTown Corporation

185 Berry St., Suite 4800

San Francisco, California

Attention: Thomas Scott

Facsimile: (415) 659-0007


 


With a copy to:


 


Andrews Kurth LLP

600 Travis Street, Suite 4200

Houston, Texas 77002

Attention:  W. Mark Young, Esq.

Facsimile:  (713) 238-7111


 


If to the Trustee:


 


16

















 


Wells Fargo Bank, National Association

Corporate Trust Services

1445 Ross Avenue, 2nd Floor

Dallas, Texas 75202-2812

Attention:  Patrick T. Giordano

Facsimile:  (214) 777-4086


 


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


 


Porter & Hedges LLP

1000 Main Street, 35th Floor

Houston, Texas 77002

Attention:  E. James Cowen, Esq.

Facsimile:  (713) 226-6249


 


If to the Escrow Agent:


 


Wells Fargo Bank, National
Association

Corporate Trust Services

1445 Ross Avenue, 2nd Floor

Dallas, Texas 75202-2812

Attention:  Patrick T. Giordano

Facsimile:  (214) 777-4086


 


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


 


Porter & Hedges LLP

1000 Main Street, 35th Floor

Houston, Texas 77002

Attention:  E. James Cowen, Esq.

Facsimile:  (713) 226-6249


 


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


 


All notices and communications 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, provided,
however, that notices to the Escrow Agent shall be effective only upon receipt.


 


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 (except in the case of the Escrow Agent).


 


17

















 


(g)                                 Further Assurances. At any time and from time to time, upon
the request of the Trustee or the Escrow Agent and at the sole expense of the
Company, the Company will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the Trustee or the
Escrow Agent may reasonably request for the purpose of obtaining or preserving
the full benefits of this Agreement and of the rights and powers herein
granted, including without limitation, the filing of any financing statements
under the Code (or similar laws) in effect with respect to the security
interests granted hereby.


 


(h)                                 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.  It shall
not be necessary in making proof of this Agreement to produce or account for
more than one such counterpart.  Delivery of an executed counterpart of this
Agreement by facsimile or electronic transmission shall be equally as effective
as delivery of an original executed counterpart of this Agreement.  Any party delivering an executed counterpart
of this Agreement by facsimile or electronic transmission also shall deliver an
original executed counterpart of this Agreement, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Agreement.


 


(i)                                     Governing Law; Submission to
Jurisdiction; Venue.  (a) THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW, EXCEPT AS OTHERWISE REQUIRED BY
MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT REMEDIES PROVIDED BY
THE LAWS OF ANY JURISDICTION OTHER THAN NEW YORK ARE GOVERNED BY THE LAWS OF
SUCH JURISDICTION.  Any legal action or
proceeding with respect to this Agreement or transactions contemplated hereby
may be brought in the courts of the State of New York located in the Borough of
Manhattan, or of the United States for the Southern District of New York, and,
by execution and delivery of this Agreement, the Company hereby irrevocably
submits, for itself and in respect of its property, generally and
unconditionally, to the non-exclusive jurisdiction of such courts.  The Company further irrevocably consents to
the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address above pursuant to Section 12(f) hereof,
such service to become effective thirty (30) days after such mailing.  Nothing herein shall affect the right of the
Escrow Agent to serve process in any other manner permitted by law or to
commence legal 


 


18

















 


proceedings or to otherwise proceed against the
Company in any other jurisdiction.


 


(j)                                     Headings.  The headings
of sections and subsections hereof are provided for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Agreement.


 


19

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Escrow and Security Agreement to be duly executed as of the day and year first
above written.


 


 


	
   

  	
  FIBERTOWER
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  as
  Escrow Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  As
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


20
















 


Exhibit K


 


FORM OF COLLATERAL AGREEMENT


 

















 


Execution
Copy


 




 





 


COLLATERAL AGREEMENT


 


(Interim Notes)


 


dated as of


 


December 7, 2009


 


Among


 


FIBERTOWER CORPORATION,


 


the Subsidiaries of
FIBERTOWER CORPORATION

from time to time party hereto,


 


 


and


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION,

as Collateral Agent


 




 





 


THIS
COLLATERAL AGREEMENT, AND THE RIGHTS OF THE PARTIES HEREUNDER, ARE SUBJECT TO
THE PROVISIONS OF THE OMNIBUS INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 7,
2009, AMONG THE COLLATERAL AGENT, THE TRUSTEE (AS DEFINED HEREIN) AND THE OTHER
CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE GRANTORS (AS DEFINED
HEREIN), AS AMENDED OR OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH
THE PROVISIONS THEREOF.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  I Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
  Indenture

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II [Reserved]

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III Security Interests in Personal Property

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
  Security
  Interest

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.02

  	
  Representations
  and Warranties

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.03

  	
  Covenants

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.04

  	
  Other
  Actions

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.05

  	
  Voting
  Rights; Dividends and Interest, Etc.

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.06

  	
  Additional
  Covenants Regarding Patent, Trademark and Copyright Collateral

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV Remedies

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01

  	
  Pledged
  Collateral

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.02

  	
  Uniform
  Commercial Code and Other Remedies

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.03

  	
  Application
  of Proceeds

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.04

  	
  Grant
  of License to Use Intellectual Property

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.05

  	
  Securities
  Act, Etc.

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.06

  	
  Intercreditor
  Agreements

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.07

  	
  Exercise
  of Control

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  V [Reserved]

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI Miscellaneous

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
  Notices

  	
   

  	
  18

  



 


i

















 


Table of Contents


(Continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.02

  	
  Survival
  of Agreement

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.03

  	
  Binding
  Effect; Several Agreement

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.04

  	
  Successors
  and Assigns

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.05

  	
  Collateral
  Agent’s Fees and Expenses; Indemnification

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.06

  	
  Collateral
  Agent Appointed Attorney-in—Fact

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.07

  	
  Applicable
  Law

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.08

  	
  Waivers;
  Amendment

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.09

  	
  WAIVER
  OF JURY TRIAL

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.10

  	
  Severability

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.11

  	
  Counterparts

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.12

  	
  Headings

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.13

  	
  Jurisdiction;
  Consent to Service of Process

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.14

  	
  Termination
  or Release

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.15

  	
  FCC
  Compliance

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.16

  	
  Additional
  Parties

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.17

  	
  Security
  Interest and Obligations Absolute

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule
  I

  	
  Guarantors

  	
   

  	
   

  
	
  Schedule
  II

  	
  Equity
  Interests; Pledged Debt Securities

  	
   

  	
   

  
	
  Schedule
  III

  	
  Intellectual
  Property

  	
   

  	
   

  
	
  Schedule
  IV

  	
  Offices
  for UCC Filings

  	
   

  	
   

  
	
  Schedule
  V

  	
  UCC
  Information

  	
   

  	
   

  
	
  Schedule
  VI

  	
  Commercial
  Tort Claims, Chattel Paper and Instruments

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


ii

















 


Table of Contents


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Supplement

  	
   

  	
   

  
	
  Exhibit B-1

  	
  Form of
  Security Agreement — Patents

  	
   

  	
   

  
	
  Exhibit B-2

  	
  Form of
  Security Agreement — Trademarks

  	
   

  	
   

  
	
  Exhibit B-3

  	
  Form of
  Security Agreement — Copyrights

  	
   

  	
   

  



 


iii
















 


COLLATERAL AGREEMENT dated as of December 7,
2009 (this “Agreement”), among FIBERTOWER CORPORATION, a Delaware
limited liability company (the “Borrower”), the subsidiaries of the
Borrower from time to time party hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION,
as collateral agent (in such capacity, the “Collateral Agent”).


 


PRELIMINARY STATEMENTS


 


A.            Reference is
made to the Indenture dated as of December 7, 2009 (as amended, restated,
amended and restated, supplemented or otherwise modified from time to time, the
“Indenture”), among the Borrower, certain Subsidiaries of the Borrower
party thereto, and Wells Fargo Bank, National Association, as Trustee (in such
capacity, the “Trustee”), governing those certain 9.00% Mandatorily
Redeemable Convertible Senior Secured Notes Due 2012 (the “Notes”).


 


B.            The Holders
(such term and each other capitalized term used but not defined in these
preliminary statements have the meanings given or ascribed to them in Article I)
have agreed to acquire the Notes pursuant to the Exchange Offer (as defined in
the Indenture) or to purchase the Notes, in each case pursuant to, and upon the
terms and conditions specified in, the Indenture and/or the Exchange
Offer.  The Indenture requires, and the
Exchange Offer contemplates, among other things, the execution and delivery of
this Agreement by the Borrower and each Guarantor.  Accordingly, the parties hereto agree as
follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01             Indenture.  (a) Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings set forth in the
Indenture.  The terms “Account”, “Commercial
Tort Claim”, “Chattel Paper”, “Deposit Account”, “Document”, “Equipment”, “General
Intangible”, “Payment Intangible”, “Good”, “Inventory”, “Letter-of-Credit Right”,
“Securities Account”, “Supporting Obligations” and “Proceeds”, and all other
terms defined in the New York UCC (as such term is defined herein) and not
defined in this Agreement have the meanings specified therein.  The term “Instrument” shall have the meaning
specified in Article 9 of the New York UCC.


 


(b)           The rules of
construction specified in Section 1.04 of the Indenture also apply to this
Agreement.


 


(c)           Other Defined Terms.  As used in this
Agreement, the following terms have the meanings specified below:


 


“Account Debtor” means any Person who is or
who may become obligated to any Grantor under, with respect to or on account of
an Account.


 


“After-Acquired Intellectual Property” shall
have the meaning assigned to such term in Section 3.06(e).


 


1

















 


“Agreement” shall have the meaning assigned
to such term in the preamble.


 


“Bankruptcy Default” shall mean an Event of
Default of the type described in Sections 7.01(8) and (9) of the
Indenture.


 


“Borrower” shall have the meaning assigned to
such term in the preamble.


 


“Closing Date” shall mean the Exchange Offer
Completion Date.


 


“Collateral” shall have the meaning assigned
to such term in Section 3.01.


 


“Collateral Agent” shall have the meaning
assigned to such term in the preamble.


 


“Copyright License” shall mean any written
agreement, now or hereafter in effect, granting any right to any third person
under any Copyright now or hereafter owned by any Grantor or that such Grantor
otherwise has the right to license, or granting any right to any Grantor under
any copyright now or hereafter owned by any third party, and all rights of such
Grantor under any such agreement.


 


“Copyrights” shall mean all of the following
now owned or hereafter acquired by any Grantor: (a) all copyright rights
in any work subject to the copyright laws of the United States, whether as
author, assignee, transferee or otherwise, (b) all registrations and
applications for registration of any such copyright in the United States, including
registrations, recordings, supplemental registrations and pending applications
for registration in the United States Copyright Office (or any successor
office), including those listed on Schedule III and (c) all causes
of action arising prior to or after the date hereof for infringement of any
Copyright or unfair competition regarding the same.


 


“Domain Names” shall mean all Internet domain
names and associated URL addresses in or to which any Grantor now or hereafter
has any right, title or interest.


 


“Excluded Property” shall mean:


 


(a)           Excluded Assets (only for so
long as such assets or rights constitute Excluded Assets);


 


(b)           any voting Equity Interests
in any Foreign Subsidiary in excess of 66% of all voting Equity Interests in
such Foreign Subsidiary;


 


(c)           (i) the public interest
in the underlying spectrum of any FCC License and (ii) any FCC License, to
the extent, but only to the extent, that any law, regulation, permit, order,
policy, decision or decree of any governmental authority in effect at the time
applicable thereto prohibits the creation of a security interest therein, provided,
however, that (x) the present and future value to the Grantors of
such FCC Licenses, and the right to receive any payment of money in respect of
(including on account of the transfer, assignment or disposition of) such FCC
Licenses or any present or future value to the Grantors of such FCC Licenses
(including, without limitation, general intangibles in respect of such FCC
Licenses or the value to the Grantors thereof for money due or to become due to
the Grantors or their respective 


 


2

















 


representatives or successors in respect of
any of the foregoing), (y) any Proceeds, products, offspring, accessions,
rents, profits, income or benefits to the Grantors of all FCC Licenses or any
present or future value to the Grantors of all FCC Licenses, and (z) to
the maximum extent not prohibited by law, all rights incident or appurtenant to
the FCC Licenses, shall not constitute Excluded Property, but shall constitute
Collateral hereunder, provided further, however, that in the
event that such law, regulation, permit, order, policy, decision or decree
shall be amended, modified or interpreted to permit (or shall be replaced with
another rule or regulation, or any other law, rule or regulation is
adopted, which would permit) the creation of a security interest in such FCC
License, such FCC License will automatically be deemed to be a part of the
Collateral (and shall cease to be Excluded Property).


 


Furthermore, no term used in the definition
of Collateral (or any component definition thereof) shall be deemed to include
any Excluded Property.


 


“Federal Securities Laws” shall have the
meaning assigned to such term in Section 4.05.


 


“Foreign Subsidiary” shall mean (i) a
Subsidiary treated as a corporation for U.S. federal income tax purposes that
is formed or incorporated outside of the United States, (ii) a Subsidiary
substantially all of whose assets consist, directly or indirectly, of Subsidiaries
described in clause (i) of this definition, (iii) an entity treated
as disregarded for U.S. federal income tax purposes that owns more than 66% of
the voting stock of a Subsidiary described in clauses (i) or (ii) of
this definition or (iv) a Subsidiary of any of the foregoing.


 


“Grantors” shall mean the Borrower and the
Guarantors.


 


“Indenture” shall have the meaning assigned
to such term in the preliminary statement.


 


“Intellectual Property” shall mean all
intellectual and similar property of any Grantor of every kind and nature now
owned or hereafter acquired by such Grantor, including inventions, designs,
Patents, Patent Licenses, Copyrights, Copyright Licenses, Trademarks, Trademark
Licenses, trade secrets, confidential or proprietary technical and business
information, know-how, software and databases and all other proprietary
information, including but not limited to Domain Names, and all embodiments or
fixations thereof and related documentation, registrations and franchises, and
all additions, improvements and accessions to, and books and records describing
or used in connection with, any of the foregoing.


 


“Intercreditor Agreement” shall mean that
certain Omnibus Intercreditor Agreement, dated as of December 7, 2009,
among the Collateral Agent, the Trustee and the other creditors party thereto
from time to time, and the Grantors, as amended or otherwise modified from time
to time in accordance with the provisions thereof.


 


“Investment Property” shall mean (a) all
“investment property” as such term is defined in the New York UCC (other than
Excluded Property) and (b) whether or not constituting “investment
property” as so defined, all Pledged Debt Securities and Pledged Stock.


 


“Holders” shall mean, collectively, the
holders of the Notes.


 


3

















 


“Majority Holders” shall mean the holders of
a majority in aggregate principal amount of the Notes outstanding at any time
of determination.


 


“Note Document Obligations” shall mean the
unpaid principal of and interest on the Notes and all other Note Obligations
and other obligations and liabilities of the Borrower or any Guarantor to the
Trustee, Collateral Agent, or any Holder, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Indenture, any other
Note Document and whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including all fees, charges
and disbursements of counsel to the Trustee, Collateral Agent, or any Holder
that are required to be paid pursuant hereto or any other Note Document and
including interest accruing after the maturity of the Notes and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower or
a Guarantor, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) or otherwise.


 


“New York UCC” shall mean the Uniform
Commercial Code as from time to time in effect in the State of New York.


 


“Notes” shall have the meaning assigned to
such term in the preliminary statement.


 


“Obligations” shall mean the Note Obligations
and all other Note Document Obligations, whether outstanding on the date hereof
or arising from time to time following the date of this Agreement.


 


“Patent License” shall mean any written
agreement, now or hereafter in effect, granting to any third person any right to
make, use or sell any invention on which a Patent, now or hereafter owned by any
Grantor or that any Grantor otherwise has the right to license, is in
existence, or granting to any Grantor any right to make, use or sell any
invention on which a patent, now or hereafter owned by any third person, is in
existence, and all rights of any Grantor under any such agreement.


 


“Patents” shall mean all of the following now
owned or hereafter acquired by any Grantor: (a) all letters patent of the
United States, all registrations and recordings thereof, and all applications
for letters patent of the United States, including registrations, recordings
and pending applications in the United States Patent and Trademark Office (or
any successor office), including those listed on Schedule III, and (b) all
reissues, continuations, divisions, continuations-in-part, renewals or
extensions thereof, and the inventions disclosed or claimed therein, including
the right to make, use and/or sell the inventions disclosed or claimed therein.


 


“Pledged Collateral” shall mean (a) the
Pledged Stock, (b) the Pledged Debt Securities, (c) subject to Section 3.05,
all payments of principal or interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of, in exchange for or upon the conversion of, and all other Proceeds
received in respect of, the securities referred to in clauses (a) and (b) above,
(d) subject to Section 3.05, all rights of 


 


4

















 


such Grantor with respect to
the securities and other property referred to in clauses (a), (b) and (c) above
and (e) all Proceeds of any of the foregoing.


 


“Pledged Debt Securities” shall mean (a) the
debt securities and promissory notes held by any Grantor on the date
hereof (including all such debt securities and promissory notes listed opposite
the name of such Grantor on Schedule II), (b) any debt securities
or promissory notes in the future issued to such Grantor and (c) any other
instruments evidencing the debt securities described above, if any.


 


“Pledged Securities” shall mean any
promissory notes, stock certificates or other securities now or hereafter
included in the Pledged Collateral, including all certificates, instruments or
other documents representing or evidencing any Pledged Collateral.


 


“Pledged Stock” shall mean, (a) to the
extent the same do not constitute Excluded Property, (i) the Equity
Interests owned by any Grantor (including all such Equity Interests listed on Schedule
II) and (ii) any other Equity Interest obtained in the future by such
Grantor and (b) the certificates, if any, representing all such Equity
Interests.


 


“Secured Parties” shall mean (a) the
Holders, (b) the Trustee, (c) the Collateral Agent, (d) the
beneficiaries of each indemnification obligation undertaken by any Obligor
under any Note Document and (e) the permitted successors and assigns of
each of the foregoing.


 


“Security Interest” shall have the meaning
assigned to such term in Section 3.01(a).


 


“Termination Date” shall mean the date upon
which the Notes, together with all interest and other non-contingent
Obligations, have been paid in full in cash.


 


“Trademark License” shall mean any written
agreement, now or hereafter in effect, granting to any third person any right
to use any trademark now or hereafter owned by any Grantor or that any Grantor
otherwise has the right to license, or granting to any Grantor any right to use
any trademark now or hereafter owned by any third person, and all rights of any
Grantor under any such agreement.


 


“Trademarks” shall mean all of the following
now owned or hereafter acquired by any Grantor: (a) all trademarks,
service marks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, trade dress, logos, other source or
business identifiers, designs and general intangibles of like nature, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all registration and recording applications filed in connection
therewith, including registrations and registration applications in the United
States Patent and Trademark Office (or any successor office), and all
extensions or renewals thereof, including those listed on Schedule III, (b) all
goodwill associated therewith or symbolized thereby, (c) all other assets,
rights and interests that uniquely reflect or embody such goodwill and (d) all
causes of action arising prior to or after the date hereof for infringement of
any trademark or unfair competition regarding the same.


 


“Trustee” shall have the meaning assigned to
such term in the preliminary statements.


 


5

















 


ARTICLE II


 


[Reserved]


 


ARTICLE III


 


Security Interests in
Personal Property


 


SECTION 3.01             Security Interest.  (a) As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor
hereby assigns and pledges to the Collateral Agent, its successors and
permitted assigns, for the benefit of the Secured Parties, and hereby grants to
the Collateral Agent, its successors and permitted assigns, for the benefit of
the Secured Parties, a security interest and lien (the “Security Interest”),
in and on all right, title or interest in or to any and all of the following
assets and properties now owned or at any time hereafter acquired by such
Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the “Collateral”):


 


(i)            all Accounts;


 


(ii)           all Commercial Tort Claims
set forth on Schedule VI hereto;


 


(iii)          all Chattel Paper;


 


(iv)          all Deposit Accounts;


 


(v)           all Documents;


 


(vi)          all Equipment;


 


(vii)         all FCC Licenses (except
solely to the extent prohibited by applicable law (it being understood and
acknowledged that as of the date hereof applicable law does not permit the
grant of a security interest directly in an FCC License or the public interest
in the underlying spectrum)) and (i) the present and future value to the
Grantors of such FCC Licenses, and the right to receive any payment of money in
respect of (including on account of the transfer, assignment or disposition of)
such FCC Licenses or any present or future value to the Grantors of such FCC
Licenses (including, without limitation, general intangibles in respect of such
FCC Licenses or the value to the Grantors thereof for money due or to become
due to the Grantors or their respective representatives or successors in
respect of any of the foregoing), (ii) any Proceeds, products, offspring,
accessions, rents, profits, income or benefits to the Grantors of all FCC
Licenses or any present or future value to the Grantors of all FCC Licenses,
and (iii) to the maximum extent not prohibited by law, all other rights
incident or appurtenant to the FCC Licenses;


 


(viii)        all General Intangibles;


 


(ix)           all Payment Intangibles;


 


6

















 


(x)            all Goods;


 


(xi)           all Instruments;


 


(xii)          all Inventory;


 


(xiii)         all Investment Property;


 


(xiv)        all Intellectual Property;


 


(xv)         all Letter-of-Credit Rights;


 


(xvi)        all Pledged Collateral;


 


(xvii)       all books and records
pertaining to the Collateral;


 


(xviii)      all Supporting Obligations;
and


 


(xix)         to the extent not otherwise
included, all Proceeds and products of any and all of the foregoing.


 


Notwithstanding the foregoing, the Security
Interest shall not extend to, and the term “Collateral” (and any component
definition thereof) shall not include, any Excluded Property.


 


(b)           Each Grantor hereby
irrevocably authorizes the Collateral Agent at any time and from time to time
to file in any relevant jurisdiction and in any relevant office any (i) financing
statements with respect to the Collateral or any part thereof and amendments
thereto that (A) indicate the Collateral as all assets of such Grantor or
words of similar effect, and (B) contain the information required by Article 9
of the Uniform Commercial Code of each applicable jurisdiction for the filing
of any financing statement or amendment, including whether such Grantor is an
organization, the type of organization and any organizational identification
number issued to such Grantor and (ii) in addition to the foregoing and to
the documents referred to below, all other documents as may be necessary or
appropriate for the purpose of perfecting, confirming, continuing, enforcing or
protecting the Security Interest granted by each Grantor, without the signature
of any Grantor if permitted by applicable law, and naming any Grantor or the
Grantors as debtors and the Collateral Agent as secured party, together with
all information necessary or appropriate to be filed therewith.  Each Grantor agrees to provide such
information to the Collateral Agent promptly upon written request.  The Collateral Agent agrees, upon request by
the Borrower and at its expense, to furnish copies of such filings and other
documents to the Borrower.


 


(c)           The Collateral Agent is
further irrevocably authorized to file with the United States Patent and
Trademark Office or United States Copyright Office (or any successor office)
such documents as may be necessary for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each
Grantor, without the signature of any Grantor, and naming any Grantor or the
Grantors as debtors and the Collateral Agent as secured party.  The Collateral Agent agrees, upon request by
the Borrower and at its expense, to furnish copies of such filings to the
Borrower.


 


7

















 


(d)           The Security Interest is
granted as security only and, except as otherwise required by applicable law,
shall not subject the Collateral Agent or any other Secured Party to, or in any
way alter or modify, any obligation or liability of any Grantor with respect to
or arising out of the Collateral. 
Nothing contained in this Agreement shall be construed to make the
Collateral Agent or any other Secured Party liable as a shareholder of any
corporation, as a member of any limited liability company or as a partner of
any partnership, neither the Collateral Agent nor any other Secured Party by
virtue of this Agreement or otherwise (except as referred to in the following
sentence) shall have any of the duties, obligations or liabilities of a member
of any limited liability company or as a partner in any partnership.  The parties hereto expressly agree that,
unless the Collateral Agent shall exercise its rights and remedies and become
the owner of Pledged Collateral consisting of a limited liability company
interest or a partnership interest pursuant hereto, this Agreement shall not be
construed as creating a partnership or joint venture among the Collateral
Agent, any other Secured Party, any Grantor and/or any other Person.


 


SECTION 3.02             Representations and Warranties.  The Grantors jointly and severally represent
and warrant to the Collateral Agent and the Secured Parties that:


 


(a)           Each Grantor has good and
valid rights in and title to the Collateral with respect to which it has
purported to grant a Security Interest hereunder and has full power and
authority to grant to the Collateral Agent, for the benefit of the Secured
Parties, the Security Interest in such Collateral pursuant hereto and to
execute, deliver and perform its obligations in accordance with the terms of
this Agreement.


 


(b)           Uniform Commercial Code
financing statements containing a description of the Collateral have been
prepared by the Collateral Agent based upon the information provided to the
Collateral Agent and the Secured Parties by the Grantors for filing in each
governmental office specified on Schedule IV  hereof (or
specified by notice from the Borrower to the Collateral Agent after the Closing
Date in the case of filings required by Section 5.20 of the Indenture),
which are all the filings (other than filings required to be made in the United
States Patent and Trademark Office and the United States Copyright Office in
order to perfect the Security Interest in the Collateral consisting of United
States Patents, Trademarks and Copyrights) that are necessary as of the Closing
Date (or after the Closing Date, in the case of filings, recordings or
registrations required by Section 5.20 of the Indenture) to establish a
legal, valid and perfected security interest in favor of the Collateral Agent
(for the benefit of the Secured Parties) in respect of all Collateral in which
the Security Interest may be perfected by filing, recording or registration in
the United States (or any political subdivision thereof).  Each Grantor represents and warrants that, to
the extent the Collateral consists of United States Patents, United States
registered Trademarks and United States registered Copyrights, a fully executed
agreement in the form hereof or, alternatively, each applicable short form
security agreement in the forms attached hereto as Exhibits B-1, B-2 and B-3,
and containing a description of all such Collateral has been or will be
delivered to the Collateral Agent for recording by the United States Patent and
Trademark Office and the United States Copyright Office pursuant to 35 U.S.C.
§261, 15 U.S.C. §1060 or 17 U.S.C. §205 and the regulations thereunder, as
applicable, to establish a legal, valid and perfected security interest in
favor of the Collateral Agent (for the benefit of the Secured Parties) in
respect of all such Collateral.


 


8

















 


(c)           The Security Interest
constitutes (i) a legal and valid security interest in all Collateral
securing the payment and performance of the Obligations, (ii) subject to
the filings described in Section 3.02(b)(i), a perfected
security interest in all Collateral in which a security interest may be
perfected by filing, recording or registering a financing statement or
analogous document in the United States (or any state thereof) pursuant to the
Uniform Commercial Code and (iii) subject to the filings described in Section 3.02(b),
a security interest that shall be perfected in all Collateral in which a
security interest may be perfected upon the receipt and recording of this
Agreement (or the applicable short form security agreement) with the United
States Patent and Trademark Office and the United States Copyright Office, as
applicable, within the three month period (commencing as of the date hereof)
pursuant to 35 U.S.C. § 261 or 15 U.S.C. § 1060 or the one month period
(commencing as of the date hereof) pursuant to 17 U.S.C. § 205.  The Security Interest is and shall be prior
to any other Lien on any of the Collateral, other than Permitted Senior Liens.


 


(d)           Schedule II correctly sets
forth as of the Closing Date the percentage of the issued and outstanding
shares or units of each class of the Equity Interests of the issuer thereof
represented by the Pledged Stock and includes all Equity Interests, debt
securities and promissory notes required to be pledged hereunder.


 


(e)           The Pledged Stock and
Pledged Debt Securities have been duly and validly authorized and issued by the
issuers thereof and (i) in the case of Pledged Stock issued by a
corporation, are fully paid and nonassessable and (ii) in the case of
Pledged Debt Securities issued by a Grantor or a Subsidiary of a Grantor, are
legal, valid and binding obligations of the issuers thereof, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other loss
affecting creditors’ rights generally and general principles of equity or at
law.


 


(f)            Schedule V correctly sets
forth as of the Closing Date (i) the exact legal name of each Grantor, as
such name appears in its respective certificate or articles of incorporation or
formation, (ii) the jurisdiction of organization of each Grantor, (iii) the
mailing address and, if different, the chief executive office address of each
Grantor, (iv) the organizational identification number, if any, issued by
the jurisdiction of organization of each Grantor, (v) the identity or type
of organization of each Grantor and (vi) the Federal Taxpayer
Identification Number, if any, of each Grantor. 
As of the Closing Date, Schedule V hereto sets forth a list of
any other corporate or organizational names each Grantor has had in the past
four months, together with the date of the relevant change.  As of the Closing Date, Schedule V
hereto sets forth a list of all other names used by each Grantor, or any other
business or organization to which each Grantor became the successor by merger,
consolidation, acquisition or change in form, nature or jurisdiction of
organization or otherwise at any time in the last four months.  Except as set forth in Schedule V, as
of the Closing Date no Grantor has changed its jurisdiction of organization at
any time during the past four months.


 


(g)           The Collateral is owned or,
in the case of FCC Licenses, held by the Grantors free and clear of any Lien,
except for Permitted Liens.


 


(h)           Notwithstanding the
foregoing or anything else in this Agreement to the contrary, no
representation, warranty or covenant is made with respect to the creation or
perfection of a security interest in Collateral to the extent such creation or
perfection would 


 


9

















 


require (i) any filing other than a
filing in the United States of America, any state thereof and the District of
Columbia, or (ii) other action under the laws of any jurisdiction other
than the United States of America, any state thereof and the District of
Columbia.


 


(i)            As of the Closing Date, no
Grantor holds (i) any Commercial Tort Claims or (ii) any interest in
any Chattel Paper or Instruments, in each case, in an amount in excess of
$250,000 individually, except as described in Schedule VI hereto.


 


(j)            Each Grantor represents and
warrants that the Trademarks, Patents and Copyrights listed on Schedule III
include all United States federal registrations and pending applications for
Trademarks, Patents and Copyrights, all as in effect as of the date hereof,
that such Grantor owns as of the date hereof.


 


SECTION 3.03             Covenants.


 


(a)           Each Grantor shall, at its
own expense, take all commercially reasonable actions necessary to defend its
right, interest and title in and to the Collateral against all persons and to
defend the Security Interest of the Collateral Agent in the Collateral and the
priority thereof against any Lien that does not constitute a Permitted Senior
Lien.


 


(b)           Each Grantor agrees, at its
own expense, to execute, acknowledge, deliver and cause to be duly filed all
such further instruments and other documents and take all actions necessary to
obtain, preserve, protect and perfect the Security Interest and the rights and
remedies created hereby, including the payment of any fees and Taxes required
in connection with the execution and delivery of this Agreement, the granting
of the Security Interest and the filing of any financing or continuation
statements or other documents in connection herewith or therewith, including
but not limited to any actions as the Collateral Agent may from time to time
reasonably deem necessary.


 


(c)           If an Event of Default has
occurred and is continuing, at its option, but only following 5 Business Days’
written notice to each Grantor of its intent to do so, the Collateral Agent may
discharge past due Taxes, assessments, charges, fees or Liens at any time
levied or placed on the Collateral that (i) constitute a Permitted Senior
Lien or (ii) do not constitute a Permitted Lien, and may pay for the
maintenance and preservation of the Collateral to the extent any Grantor fails
to do so as required by the Indenture, and each Grantor jointly and severally
agrees to reimburse the Collateral Agent within 10 days after demand for any
reasonable payment made or any reasonable expense incurred by the Collateral
Agent pursuant to the foregoing authorization; provided, however,
that nothing in this paragraph shall be interpreted as excusing any Grantor
from the performance of, or imposing any obligation on the Collateral Agent or
any Secured Party to cure or perform, any covenants or other promises of any
Grantor with respect to Taxes, assessments, charges, fees or Liens and
maintenance as set forth herein or in the other Note Documents.


 


(d)           Each Grantor shall remain
liable to observe and perform all conditions and obligations to be observed and
performed by it under each contract, agreement or instrument relating to the
Collateral, all in accordance with the terms and conditions thereof.


 


10
















 


SECTION 3.04             Other Actions.  In order to further ensure the attachment,
perfection and priority of, and the ability of the Collateral Agent to enforce,
the Security Interest in the Collateral, each Grantor agrees, in each case at
such Grantor’s own expense, to take the following actions with respect to the
following Collateral:


 


(a)           Instruments and Tangible Chattel Paper.  If any Grantor shall at any
time hold or acquire any Instruments or Tangible Chattel Paper in excess of
$100,000 individually or in the aggregate when considered together with
Instruments or Tangible Chattel Paper, as the case may be, arising from related
transactions, such Grantor shall, within 30 days following such acquisition (or
such longer period as to which the Collateral Agent may consent in writing),
endorse, assign and deliver the same to the Collateral Agent, accompanied by
such undated instruments of endorsement, transfer or assignment duly executed
in blank as the Collateral Agent may from time to time reasonably specify.


 


(b)           Investment Property.  Subject to the
terms hereof, if any Grantor shall at any time hold or acquire any Certificated
Securities, such Grantor shall, within 30 days following such acquisition (or
such longer period as to which the Collateral Agent may consent in writing),
endorse, assign and deliver the same to the Collateral Agent, accompanied by
such undated instruments of transfer or assignment duly executed in blank as
the Collateral Agent may from time to time reasonably specify.  Each delivery of Pledged Securities shall be
accompanied by a schedule describing the securities, which schedule shall be
attached hereto as Schedule II and made a part hereof and supplement any
prior schedule so delivered; provided that failure to attach any such
schedule hereto shall not affect the validity of such pledge of such Pledged
Securities and shall not in and of itself result in any Default or Event of
Default.  Each certificate representing
an interest in any limited liability company or limited partnership controlled
by any Grantor and pledged under Section 3.01 shall be physically
delivered to the Collateral Agent in accordance with the terms of the Indenture
and endorsed to the Collateral Agent or endorsed in blank.


 


(c)           Commercial Tort Claims.  If any Grantor shall at any
time hold or acquire a Commercial Tort Claim in excess of $250,000
individually, the Grantor shall, within 30 days following such acquisition (or
such longer period as to which the Collateral Agent may consent in writing),
notify the Collateral Agent thereof in a writing signed by such Grantor
including a summary description of such claim and grant to the Collateral
Agent, for the benefit of the Secured Parties, in such writing a security
interest therein and in the proceeds thereof, all upon the terms of this
Agreement, with such writing to be in form and substance reasonably
satisfactory to the Collateral Agent.


 


(d)           Security Interests in Property of Account Debtors.  If at any time any Grantor
shall take a security interest in any property of an Account Debtor or any
other Person the value of which equals or exceeds $100,000 to secure payment
and performance of an Account, such Grantor shall promptly assign such security
interest to the Collateral Agent for the benefit of the Secured Parties.  Such assignment need not be filed of public
record unless necessary to continue the perfected status of the security
interest against creditors of and transferees of the Account Debtor or other
Person granting the security interest.


 


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(e)           Securities Accounts; Deposit Accounts. 
The Grantors shall enter into account control agreements governing each
Securities Account and Deposit Account constituting Collateral, granting to the
Collateral Agent Control over such Securities Accounts and Deposit Accounts,
such agreements to be in form and substance reasonably satisfactory to the
Collateral Agent, and the Grantors shall have no Securities Account or Deposit
Account not subject to such an account control agreement, in each case except
for (i) Deposit Accounts and Securities Accounts, the aggregate amount on
deposit in which does not at any time exceed $100,000, and (ii) payroll
and tax withholding accounts maintained as such in the ordinary course of
business.


 


SECTION 3.05             Voting Rights; Dividends and
Interest, Etc.  Unless and
until an Event of Default shall have occurred and be continuing and the
Collateral Agent shall have given the Grantors notice that it is exercising its
rights or remedies under this Agreement:


 


(a)           Each Grantor shall be
entitled to exercise any and all voting and/or other consensual rights and
powers inuring to an owner of the Pledged Collateral or any part thereof for
any purpose consistent with the terms of this Agreement, the Indenture and the
other Note Documents and applicable law.


 


(b)           The Collateral Agent shall
execute and deliver to each Grantor, or cause to be executed and delivered to
each Grantor, all such proxies, powers of attorney and other instruments as
such Grantor may reasonably request for the purpose of enabling such Grantor to
exercise the voting and/or consensual rights and powers it is entitled to
exercise pursuant to paragraph (a) above.


 


(c)           Each Grantor shall be
entitled to receive and retain any and all dividends, interest, principal and
other distributions paid on or distributed in respect of the Pledged Collateral
to the extent and only to the extent that such dividends, interest, principal
and other distributions are not prohibited by, and are otherwise paid or distributed
in accordance with, the terms and conditions of the Indenture, this Agreement
(including without limitation Section 4.01 hereof), the other Note
Documents and applicable law; provided  that any
noncash dividends, interest, principal or other distributions that would
constitute Pledged Collateral, shall be and become part of the Pledged
Collateral, and, if received by any Grantor, shall be held in trust for the
benefit of the Collateral Agent and the Secured Parties and shall be delivered
to the Collateral Agent in the same form as so received (with any necessary
endorsement reasonably requested by the Collateral Agent) within 30 days
following the receipt thereof (or such longer period as to which the Collateral
Agent may consent in writing).


 


SECTION 3.06             Additional Covenants Regarding
Patent, Trademark and Copyright Collateral.  (a) Each Grantor agrees that
it will not, and will use commercially reasonable efforts to not permit any of
its licensees to, do any act, or omit to do any act, whereby any Patent that is
material to the conduct of such Grantor’s business may become invalidated or
dedicated to the public.


 


(b)           Each Grantor (either itself
or through its licensees or its sublicensees) will, for each Trademark material
to the conduct of such Grantor’s business, use commercially reasonable efforts
to maintain such Trademark in full force free from any claim of abandonment or
invalidity for non-use.


 


12

















 


(c)           Each Grantor (either itself
or through its licensees or sublicensees) will, for each work covered by a
material Copyright, use commercially reasonable efforts to continue to publish,
reproduce, display, adopt and distribute the work with appropriate copyright
notice as necessary to establish and preserve its rights under applicable
copyright laws.


 


(d)           Each Grantor will take all
reasonable and necessary steps that are consistent with the practice in any
proceeding before the United States Patent and Trademark Office, United States
Copyright Office or any office or agency in any political subdivision of the
United States, to maintain and pursue each material application relating to the
Patents, Trademarks and/or Copyrights (and to obtain the relevant grant or
registration) and to maintain each issued Patent and each registration of the
Trademarks and Copyrights that is material to the conduct of any Grantor’s
business, including timely filings of applications for renewal, affidavits of
use, affidavits of incontestability and payment of maintenance fees, and, if
consistent with good business judgment, to initiate opposition, interference
and cancellation proceedings against third parties.


 


(e)           Each Grantor agrees that,
should it obtain an ownership or other interest in any United States federal
registrations and pending United States federal applications for Trademarks,
Patents and Copyrights after the Closing Date (“After-Acquired Intellectual
Property”) (i) the provisions of this Agreement shall automatically
apply thereto, and (ii) any such After-Acquired Intellectual Property and,
in the case of Trademarks, the goodwill symbolized thereby, shall automatically
become part of the Collateral subject to the terms and conditions of this
Agreement.  Within 30 days following such
acquisition (or such longer period as to which the Collateral Agent may consent
in writing), the relevant Grantor shall sign and deliver to the Collateral
Agent an appropriate short form security agreement (of the type described in
the last sentence of Section 3.02(b)) with respect to such
After-Acquired Intellectual Property, to the extent that such After-Acquired
Intellectual Property is not covered by any previous such short form security
agreement signed and delivered by it.


 


ARTICLE IV


 


Remedies


 


SECTION 4.01             Pledged Collateral.  (a) Upon the occurrence and during the
continuance of an Event of Default and with notice to the Borrower, the
Collateral Agent, on behalf of the Secured Parties, shall have the right (in
its sole and absolute discretion) to hold the Pledged Securities in its own
name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the
name of the applicable Grantor, endorsed or assigned in blank or in favor of
the Collateral Agent.  Upon the
occurrence and during the continuance of an Event of Default and with notice to
the relevant Grantor, the Collateral Agent shall at all times have the right to
exchange the certificates representing any Pledged Securities for certificates
of smaller or larger denominations for any purpose consistent with this Agreement.


 


(b)           Upon the occurrence and
during the continuance of an Event of Default, after the Collateral Agent shall
have notified the Grantors in writing of the suspension of their rights under
paragraph (c) of Section 3.05, then all rights of any Grantor to
dividends, interest, principal or other distributions that such Grantor is
authorized to receive pursuant to paragraph 


 


13

















 


(c) of Section 3.05 shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to receive
and retain such dividends, interest, principal or other distributions.  All dividends, interest, principal or other distributions
received by any Grantor contrary to the provisions hereof and of Section 3.05
shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of such Grantor and shall be forthwith
delivered to the Collateral Agent upon demand in the same form as so received
(with any necessary endorsement or instrument of assignment).  Any and all money and other property paid
over to or received by the Collateral Agent pursuant to the provisions of this
paragraph (b) shall be retained by the Collateral Agent in an account
established by the Collateral Agent upon receipt of such money or other
property and shall be applied in accordance with the provisions of Section 4.03.  After all Events of Default have been cured
or waived, the Collateral Agent shall promptly repay to each applicable Grantor
(without interest) all dividends, interest, principal or other distributions
that such Grantor would otherwise be permitted to retain pursuant to the terms
of paragraph (c) of Section 3.05 and that remain in such
account.


 


(c)           Subject to Section 6.15,
upon the occurrence and during the continuance of an Event of Default and with
notice to the Borrower, all rights of any Grantor to exercise the voting and
consensual rights and powers it is entitled to exercise pursuant to paragraph (a) of
Section 3.05, and the obligations of the Collateral Agent under
paragraph (b) of Section 3.05, shall cease, and all such
rights shall thereupon become vested in the Collateral Agent, which shall have
the sole and exclusive right and authority to exercise such voting and
consensual rights and powers and each Grantor shall, at its sole cost and
expense, from time to time execute and deliver to the Collateral Agent
appropriate instruments as the Collateral Agent may reasonably request in order
to permit the Collateral Agent to exercise the voting and other rights which it
may be entitled to exercise and to receive all distributions which it may be
entitled to receive; provided, however, that, unless otherwise
directed by the Majority Holders, the Collateral Agent shall have the right
from time to time following and during the continuance of an Event of Default
and the provision of the notice referred to above to permit the Grantors to
exercise such rights.  To the extent the
notice referred to in the first sentence of this paragraph (c) has been
given, after all Events of Default have been cured or waived, each Grantor
shall have the exclusive right to exercise the voting and/or consensual rights
and powers that such Grantor would otherwise be entitled to exercise pursuant
to the terms of paragraph (a) of Section 3.05, and the
Collateral Agent shall again have the obligations under paragraph (b) of Section 3.05.


 


(d)           Notwithstanding anything to
the contrary contained in this Section 4.01, if a Bankruptcy
Default shall have occurred and be continuing, the Collateral Agent shall not
be required to give any notice referred to in Section 3.05 or this Section 4.01
in order to exercise any of its rights described in said Sections, and the
suspension of the rights of each of the Grantors under said Sections shall be
automatic upon the occurrence of such Bankruptcy Default.


 


SECTION 4.02             Uniform Commercial Code and Other
Remedies.  Upon the
occurrence and during the continuance of an Event of Default, each Grantor
agrees to deliver each item of Collateral to the Collateral Agent on demand,
and it is agreed that the Collateral Agent shall have the right to take any of
or all the following actions at the same or different times: (a) with
respect to any Collateral consisting of Intellectual Property, on demand, to
cause the Security Interest to become an assignment, transfer and conveyance of
any of or all such 


 


14

















 


Collateral
by the applicable Grantor to the Collateral Agent, or to license or sublicense,
whether general, special or otherwise, and whether on an exclusive or
nonexclusive basis, any such Collateral throughout the world on such terms and
conditions and in such manner as the Collateral Agent shall determine (other
than in violation of any then-existing licensing arrangements), (b) with
or without legal process and with or without prior notice or demand for
performance, to take possession of the Collateral without breach of the peace,
and subject to the terms of any related lease agreement, to enter any premises
where the Collateral may be located for the purpose of taking possession of or
removing the Collateral, and (c) generally, to exercise any and all rights
afforded to a secured party under the Uniform Commercial Code of any relevant
jurisdiction or other applicable law. 
Without limiting the generality of the foregoing, upon the occurrence
and during the continuance of an Event of Default, each Grantor agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral at a public or private sale or at any broker’s board or on any
securities exchange upon such commercially reasonable terms and conditions as
it may deem advisable, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. 
The Collateral Agent shall be authorized at any such sale (if it deems
it advisable to do so) to restrict the prospective bidders or purchasers to
persons who will represent and agree that they are purchasing the Collateral
for their own account for investment and not with a view to the distribution or
sale thereof, and upon consummation of any such sale the Collateral Agent shall
have the right to assign, transfer and deliver to the purchaser or purchasers
thereof the Collateral so sold.  Each
such purchaser at any such sale shall hold the property sold absolutely, free
from any claim or right on the part of any Grantor, and each Grantor hereby
waives (to the extent permitted by law) all rights of redemption, stay and
appraisal which such Grantor now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted.


 


The Collateral Agent shall give each applicable
Grantor 10 days’ written notice (which each Grantor agrees is reasonable notice
within the meaning of Section 9-611 of the New York UCC or its equivalent
in other jurisdictions) of the Collateral Agent’s intention to make any sale of
Collateral.  Such notice, in the case of
a public sale, shall state the time and place for such sale and, in the case of
a sale at a broker’s board or on a securities exchange, shall state the board
or exchange at which such sale is to be made and the day on which the
Collateral, or portion thereof, will first be offered for sale at such board or
exchange.  Any such public sale shall be
held at such time or times and at a time and at such place or places as the
Collateral Agent may fix and state in the notice (if any) of such sale.  At any such sale, the Collateral, or portion
thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion)
determine.  The Collateral Agent shall
not be obligated to make any sale of any Collateral if it shall determine not
to do so, regardless of the fact that notice of sale of such Collateral shall
have been given.  The Collateral Agent may,
without notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. 
In case any sale of all or any part of the Collateral is made on credit
or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent shall not incur any liability in case any
such purchaser or purchasers shall fail to take up and pay for the Collateral
so sold and, in case of any such failure, such Collateral may be sold again
upon like notice.  At any public (or, to
the 


 


15

















 


extent permitted by law,
private) sale made pursuant to this Agreement, any Secured Party may bid for or
purchase, free (to the extent permitted by applicable law) from any right of
redemption, stay, valuation or appraisal on the part of any Grantor (all said
rights being also hereby waived and released to the extent permitted by
applicable law), the Collateral or any part thereof offered for sale and may
make payment on account thereof by using any claim then due and payable to such
Secured Party from any Grantor as a credit against the purchase price, and such
Secured Party may, upon compliance with the terms of sale, hold, retain and
dispose of such property without further accountability to any Grantor
therefor.  For purposes hereof, a bona
fide written agreement to purchase the Collateral or any portion thereof
entered into by the Collateral Agent in good faith shall be treated as a sale
thereof; the Collateral Agent shall be free to carry out such sale pursuant to
such agreement and no Grantor shall be entitled to the return of the Collateral
or any portion thereof subject thereto, notwithstanding the fact that after the
Collateral Agent shall have entered into such an agreement all Events of
Default shall have been remedied and the Obligations paid in full.  As an alternative to exercising the power of
sale herein conferred upon it, the Collateral Agent may proceed by a suit or
suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court
or courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver.


 


Each Grantor irrevocably (until the Termination
Date) makes, constitutes and appoints the Collateral Agent (and all officers,
employees or agents designated by the Collateral Agent) as such Grantor’s true
and lawful agent (and attorney-in-fact) for the purpose, upon the occurrence
and during the continuance of an Event of Default, of making, settling and
adjusting claims in respect of Collateral under policies of insurance,
endorsing the name of such Grantor on any check, draft, instrument or other
item of payment for the proceeds of such policies of insurance and for making
all determinations and decisions with respect thereto.  In the event that any Grantor at any time or
times shall fail to obtain or maintain any of the policies of insurance
required under the Indenture or to pay any premium in whole or part relating
thereto, the Collateral Agent may, without waiving or releasing any obligation
or liability of any Grantor hereunder or any Default or Event of Default, in
its sole discretion or upon the instruction of the Majority Holders, obtain and
maintain such policies of insurance and pay such premium and take any other
actions with respect thereto as the Collateral Agent or Majority Holders deem
advisable.  All sums disbursed by the
Collateral Agent in connection with this paragraph, including attorneys’ fees,
court costs, expenses and other charges relating thereto, shall be payable,
upon demand, by the Grantors to the Collateral Agent and shall be additional
Obligations secured hereby.


 


SECTION 4.03             Application of Proceeds.  If an Event of Default shall have occurred
and be continuing, the Collateral Agent shall remit the proceeds of any
collection, sale, foreclosure or other realization upon any Collateral to the
Trustee to be used by the Trustee to satisfy the Obligations in accordance with
Section 7.10 of the Indenture.


 


Upon any sale of Collateral by the Collateral
Agent (including pursuant to a power of sale granted by statute or under a
judicial proceeding), the receipt of the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the 


 


16

















 


Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Collateral Agent or such officer or be
answerable in any way for the misapplication thereof.


 


SECTION 4.04             Grant of License to Use
Intellectual Property.  For
the purpose of enabling the Collateral Agent to exercise rights and remedies
under this Agreement at such time as the Collateral Agent shall be lawfully
entitled to exercise such rights and remedies, each Grantor hereby grants to
the Collateral Agent an irrevocable (until the Termination Date), nonexclusive
license, subject in all respects to any existing licenses (exercisable without
payment of royalty or other compensation to the Grantors), to use, license or
sublicense any of the Collateral consisting of Intellectual Property now owned
or hereafter acquired by such Grantor, and wherever the same may be located,
and including in such license access to all media in which any of the licensed
items may be recorded or stored and to all computer software and programs used
for the compilation or printout thereof. 
The use of such license by the Collateral Agent may be exercised, at the
option of the Collateral Agent, only upon the occurrence and during the
continuation of an Event of Default; provided, however, that any
license, sublicense or other transaction entered into by the Collateral Agent
in accordance herewith shall be binding upon each Grantor notwithstanding that
such Event of Default may be subsequently cured or cease to exist.


 


SECTION 4.05             Securities Act, Etc.  In view of the position of the Grantors in
relation to the Pledged Collateral, or because of other current or future
circumstances, a question may arise under the U.S. Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to
time in effect being called the “Federal Securities Laws”) with respect
to any disposition of the Pledged Collateral permitted hereunder.  Each Grantor understands that compliance with
the Federal Securities Laws might very strictly limit the course of conduct of
the Collateral Agent if the Collateral Agent were to attempt to dispose of all
or any part of the Pledged Collateral, and might also limit the extent to which
or the manner in which any subsequent transferee of any Pledged Collateral
could dispose of the same.  Similarly,
there may be other legal restrictions or limitations affecting the Collateral
Agent in any attempt to dispose of all or part of the Pledged Collateral under
applicable “blue sky” or other state securities laws or similar laws analogous
in purpose or effect.  Each Grantor
recognizes that to the extent such restrictions and limitations apply to any
proposed sale of Pledged Collateral, the Collateral Agent may, with respect to
any sale of such Pledged Collateral, limit the purchasers to those who will
agree, among other things, to acquire such Pledged Collateral for their own
account, for investment, and not with a view to the distribution or resale
thereof, Each Grantor acknowledges and agrees that to the extent such
restrictions and limitations apply to any proposed sale of Pledged Collateral,
the Collateral Agent, in its sole and absolute discretion (a) may proceed
to make such a sale whether or not a registration statement for the purpose of
registering such Pledged Collateral or part thereof shall have been filed under
the Federal Securities Laws and (b) may approach and negotiate with a
limited number of potential purchasers (including a single potential purchaser)
to effect such sale.  Each Grantor
acknowledges and agrees that any such sale might result in prices and other
terms less favorable to the seller than if such sale were a public sale without
such restrictions.  In the event of any
such sale, the Collateral Agent shall incur no responsibility or liability for
selling all or any part of the Pledged Collateral at a price that the
Collateral Agent, in its sole and absolute discretion, may in good faith deem
reasonable 


 


17

















 


under
the circumstances, notwithstanding the possibility that a substantially higher
price might have been realized if the sale were deferred until after
registration as aforesaid or if more than a limited number of purchasers (or a
single purchaser) were approached.  The
provisions of this Section 4.05 will apply notwithstanding the
existence of a public or private market upon which the quotations or sales
prices may exceed substantially the price at which the Collateral Agent sells.


 


SECTION 4.06             Intercreditor Agreement.  The rights and remedies of the Collateral
Agent and the Trustee, on behalf of the Secured Parties, under this Agreement
shall be subject to the Intercreditor Agreement, if any, as in effect from time
to time.  In the event of any conflict
between the terms of the Intercreditor Agreement and this Agreement, the terms
of the Intercreditor Agreement shall govern and control.


 


SECTION 4.07             Exercise of Control.  Unless an Event of Default shall have
occurred and be continuing, the Collateral Agent agrees that it will not (nor
will it direct any agent acting as a trustee or other agent as secured party
pursuant to the Intercreditor Agreement or any “control agreement” to) deliver
any notice of control or issue any entitlement orders or instructions over any
Account or any other deposit or securities account of any Grantor subject to a “control
agreement”.  Upon the cure or written
waiver of such Event of Default in accordance with the Note Documents and
provided that no Event of Default then exists, the Collateral Agent will (or
will direct any agent acting as a trustee or other agent as secured party pursuant
to the Intercreditor Agreement or any “control agreement” to) deliver a
termination of any notice of control previously sent by the Collateral Agent,
and hereby agrees to no longer issue any entitlement orders or instructions
with respect to, any Account or any other deposit or securities account of such
Grantor over which control was previously exercised in respect of such prior
Event of Default.


 


ARTICLE V


 


[Reserved]


 


ARTICLE VI


 


Miscellaneous


 


SECTION 6.01             Notices.  All communications and notices hereunder
shall (except as otherwise expressly permitted herein) be in writing and given
as provided in Section 14.02 of the Indenture.  All communications and notices hereunder to
any Guarantor shall be given to it in care of the Borrower as provided in Section 14.02
of the Indenture.


 


SECTION 6.02             Survival of Agreement.  All covenants, agreements, representations
and warranties made by the Borrower and Guarantors in the Note Documents and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Note Document shall be considered to
have been relied upon by the Secured Parties and shall survive the execution
and delivery of the Note Documents and the 


 


18

















 


issuance
of any Notes, regardless of any investigation made by any Holder or on its
behalf and notwithstanding that the Trustee, Collateral Agent or any Holder may
have had notice or knowledge of any Default or incorrect representation or warranty,
and shall continue in full force and effect until the Termination Date.


 


SECTION 6.03             Binding Effect; Several Agreement.  This Agreement shall become effective as to
the Borrower or any Guarantor when a counterpart hereof executed on behalf of
the Borrower or such Guarantor, as applicable, shall have been delivered to the
Collateral Agent and a counterpart hereof shall have been executed on behalf of
the Collateral Agent, and thereafter shall be binding upon the Borrower or such
Guarantor, as applicable, and the Collateral Agent and their respective
permitted successors and assigns, and shall inure to the benefit of the
Borrower or such Guarantor, as applicable, the Collateral Agent and the other
Secured Parties and their respective successors and permitted assigns, except
that neither the Borrower nor any Guarantor shall have the right to assign or
transfer its rights or obligations hereunder or any interest herein or in the
Collateral (and any such assignment or transfer shall be void), except as contemplated
or permitted by this Agreement or the Indenture.  This Agreement shall be construed as a
separate agreement with respect to the Borrower and each Guarantor and may be
amended, modified, supplemented, waived or released with respect to the Borrower
or any Guarantor without the approval of any other of the Borrower and the
Guarantors and without affecting the obligations of any other of the Borrower
and the Guarantors hereunder.


 


SECTION 6.04             Successors and Assigns.  Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and permitted assigns of such party; and all covenants, promises and agreements
by or on behalf of any Grantor or the Collateral Agent that are contained in this
Agreement shall bind and inure to the benefit of their respective successors
and assigns.


 


SECTION 6.05             Collateral
Agent’s Fees and Expenses; Indemnification.  The parties hereto agree that the Collateral
Agent shall be entitled to reimbursement of its expenses incurred hereunder and
indemnity in connection with the actions taken hereunder.  Each Grantor hereby agrees to indemnify and
hold harmless the Collateral Agent and its directors, officers, employees and
agents against and from any and all claims, actions, liabilities, costs and
expenses of any kind or nature whatsoever (including reasonable fees and
disbursements of counsel) that may be imposed on, incurred by, or asserted
against any of them, in any way relating to or arising out of this Agreement,
any exercise of remedies hereunder or any other action taken or omitted by them
hereunder, except to the extent a court holds in final and nonappealable
judgment that such claims, actions, liabilities, costs and expenses directly
resulted from the gross negligence or willful misconduct of such indemnified
Persons.  The provisions of this Section 6.05
shall survive the Termination Date.


 


SECTION 6.06             Collateral Agent Appointed
Attorney-in—Fact.  Each
Grantor hereby appoints the Collateral Agent as the attorney-in-fact of such
Grantor for the purpose of, upon the occurrence and during the continuance of
an Event of Default, carrying out the provisions of this Agreement and taking
any action and executing any instrument that the Collateral Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is
irrevocable (until the Termination Date) and coupled with an interest; provided,
however, that the Collateral Agent shall not execute on behalf of
Grantors any application or 


 


19

















 


other
instrument to be submitted to the FCC. 
Without limiting the generality of the foregoing, the Collateral Agent
shall have the right, upon the occurrence and during the continuance of an
Event of Default, with full power of substitution either in the Collateral
Agent’s name or in the name of such Grantor (a) to receive, endorse,
assign and/or deliver any and all notes, acceptances, checks, drafts, money
orders or other evidences of payment relating to the Collateral or any part
thereof; (b) to demand, collect, receive payment of, give receipt for and
give discharges and releases of all or any of the Collateral, (c) to sign
the name of any Grantor on any invoice or bill of lading relating to any of the
Collateral, (d) to send verifications of Accounts to any Account Debtor, (e) to
commence and prosecute any and all suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect or otherwise realize
on all or any of the Collateral or to enforce any rights in respect of any
Collateral, (f) to settle, compromise, compound, adjust or defend any
actions, suits or proceedings relating to all or any of the Collateral, (g) to
notify, or to require any Grantor to notify, Account Debtors to make payment
directly to the Collateral Agent, and (h) to use, sell, assign, transfer,
pledge, make any agreement with respect to or otherwise deal with all or any of
the Collateral, and to do all other acts and things necessary to carry out the
purposes of this Agreement in accordance with its terms, as fully and
completely as though the Collateral Agent were the absolute owner of the
Collateral for all purposes; provided, however, that nothing
herein contained shall be construed as requiring or obligating the Collateral
Agent to make any commitment or to make any inquiry as to the nature or
sufficiency of any payment received by the Collateral Agent, or to present or
file any claim or notice, or to take any action with respect to the Collateral
or any part thereof or the moneys due or to become due in respect thereof or
any property covered thereby.  The
Collateral Agent and the Secured Parties shall be accountable only for amounts
actually received as a result of the exercise of the powers granted to them
herein, and neither they nor their officers, directors, employees or agents
shall be responsible to any Grantor for any act or failure to act hereunder,
except for their own gross negligence or willful misconduct as determined by a
court in a final and nonappealable judgment. 
The foregoing powers of attorney being coupled with an interest, are
irrevocable until the Security Interest shall have terminated in accordance
with the terms hereof.


 


SECTION 6.07             Applicable Law.  THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS AGREEMENT 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 6.08             Waivers; Amendment.  (a) No failure or delay by the
Collateral Agent, the Trustee or any Holder in exercising any right or power
hereunder or under any other Note Document shall operate as a waiver hereof or
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.  The rights and remedies of
the Secured Parties hereunder and under the other Note Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise
have.  No waiver of any provision of any
Note Document or consent to any departure by the Borrower or any Guarantor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section 6.08, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given.  Without limiting the 


 


20

















 


generality
of the foregoing, the purchase of a Note shall not be construed as a waiver of
any Default, regardless of whether any Secured Party may have had notice or
knowledge of such Default at the time. 
Except as otherwise provided herein, no notice or demand on the Borrower
or any Guarantor in any case shall entitle the Borrower or any Guarantor to any
other or further notice or demand in similar or other circumstances.


 


(b)           Neither this Agreement nor
any provision hereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Collateral Agent and any
of the Borrower and the Guarantors with respect to which such waiver, amendment
or modification is to apply, subject to any consent required in accordance with
Article 10 of the Indenture.


 


SECTION 6.09             WAIVER OF JURY TRIAL.  EACH PARTY HERETO, AND EACH OTHER SECURED
PARTY, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF, HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER NOTE DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER NOTE DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.09.


 


SECTION 6.10             Severability.  In the event any one or more of the
provisions contained in this Agreement or in any other Note Document should be
held invalid, illegal or unenforceable in any respect by any court or
governmental authority of competent jurisdiction (including but not limited to
the FCC), the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby (it being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). 
The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.


 


SECTION 6.11             Counterparts.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together
shall constitute a single contract, and shall become effective as provided in Section 6.03.  Delivery of an executed signature page to
this Agreement by facsimile or electronic transmission shall be as effective as
delivery of a manually signed counterpart of this Agreement.


 


21
















 


SECTION 6.12             Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.


 


SECTION 6.13             Jurisdiction; Consent to Service
of Process.  (a) Each
of the parties hereto, and the other Secured Parties, by their acceptance of
the benefits of this Agreement hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York
State court or Federal court of the United States of America, in each case,
sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or the other
Note Documents, or for recognition or enforcement of any judgment, and each of
the parties hereto and the other Secured Parties, by their acceptance of the
benefits of this Agreement hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the fullest extent permitted by
applicable law, in such Federal court. 
Each of the parties hereto and the other Secured Parties, by their
acceptance of the benefits of this Agreement agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement or any other Note
Document shall affect any right that any Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other Note
Documents against the Borrower or any Guarantor or their respective properties
in the courts of any jurisdiction.


 


(b)           Each of the parties hereto
and the other Secured Parties, by their acceptance of the benefits of this
Agreement, hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or the other Note Documents in any New
York State or Federal court described in clause (a).  Each of the parties hereto and the other
Secured Parties, by their acceptance of the benefits of this Agreement hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.


 


(c)           Each of the parties hereto
and the other Secured Parties, by their acceptance of the benefits of this
Agreement hereby irrevocably consents to service of process in the manner
provided for notices in Section 14.02 of the Indenture.  Nothing in this Agreement or any other Note
Document will affect the right of any party to this Agreement or any other
Secured Party to serve process in any other manner permitted by law.


 


SECTION 6.14             Termination or Release.  (a) This Agreement, the Security
Interest, the pledge of the Pledged Collateral and all other security interests
granted hereby shall terminate on the Termination Date.


 


(b)           A Guarantor shall
automatically be released from its obligations hereunder and the Security
Interests created hereunder in the Collateral of such Guarantor shall be
automatically released upon the consummation of any transaction permitted by
the Indenture as a result of which such Guarantor ceases to be a Guarantor
under the Indenture.


 


22

















 


(c)           Upon any sale or other
transfer by any Grantor of any Collateral that is permitted under the Indenture
to any person that is not the Borrower or a Grantor, or upon the effectiveness
of any written consent to the release of the Security Interest granted hereby
in any Collateral in accordance with the terms of the Indenture, the Security
Interest in such Collateral shall be automatically released,


 


(d)           In connection with any
termination or release pursuant to paragraph (a), (b) or (c) above,
the Collateral Agent shall promptly execute and deliver to any Grantor, at such
Grantor’s sole expense, all Uniform Commercial Code termination statements and
similar documents that such Grantor shall reasonably request to evidence such
termination or release.  Any execution
and delivery of documents pursuant to this Section 6.14 shall be
without recourse to or representation or warranty by the Collateral Agent
(other than any representation and warranty that the Collateral Agent has the
authority to execute and deliver such documents) or any Secured Party.  Without limiting the provisions of Section 6.05,
the Borrower shall reimburse the Collateral Agent upon demand for all
reasonable out-of-pocket costs and expenses, including the fees, charges and
expenses of counsel, incurred by it in connection with any action contemplated
by this Section 6.14.


 


(e)           At any time that the
respective Grantor desires that the Collateral Agent take any action described
in preceding paragraph (d) above, it shall, upon request of the Collateral
Agent, deliver to the Collateral Agent an officer’s certificate certifying that
the release of the respective Collateral is permitted pursuant to paragraph
(a), (b) or (c).  The Collateral
Agent shall have no liability whatsoever to any Secured Party as the result of
any release of Collateral by it as permitted (or which the Collateral Agent in
good faith believes to be permitted) by this Section 6.14.


 


SECTION 6.15             FCC Compliance.  (a) Notwithstanding anything to the
contrary contained herein or in any other agreement, instrument or document
executed in connection herewith, no party hereto shall take any actions
hereunder that would constitute or result in a transfer of control of an entity
holding any FCC License or an assignment of any FCC License requiring the prior
approval of the FCC without first obtaining such prior approval of the
FCC.  In addition, the parties
acknowledge that the voting rights of the Pledged Stock in such an entity shall
remain with the relevant Grantor thereof even upon the occurrence and during
the continuance of an Event of Default until the FCC shall have given its prior
consent to the exercise of voting rights by a purchaser at a public or private
sale of such Pledged Stock or the exercise of such rights by the Collateral
Agent or by a receiver, trustee, conservator or other agent duly appointed
pursuant to applicable law.


 


(b)           If an Event of Default shall
have occurred and is continuing, each Grantor shall take any action which the
Collateral Agent may reasonably request in the exercise of its rights and
remedies under this Agreement in order to effectuate any transfer of control of
any Grantor or any assignment of the Collateral to the Collateral Agent or to
such one or more third parties as the Collateral Agent may designate, or to a
combination of the foregoing.  To enforce
the provision of this Section 6.15, the Collateral Agent is
empowered to seek from the FCC and any other governmental authority, to the
extent required by applicable law or government regulation, consent to or
approval of any voluntary or involuntary transfer of control of any entity
whose Collateral is subject to this Agreement or any voluntary or involuntary
assignment 


 


23

















 


of the Collateral, in each case for the
purpose of seeking a bona fide purchaser of some or all of the Collateral.  Each Grantor agrees to cooperate with any
such purchaser and with the Collateral Agent in the preparation, execution and
filing of any application and such other forms, and in providing any
information that may be necessary or useful in obtaining the FCC’s consent to
the transfer of control or assignment of the Collateral.  Each Grantor hereby irrevocably (x) consents
to any such voluntary or involuntary transfer of control or assignment after
and during the continuation of an Event of Default and, without limiting any
rights of the Collateral Agent under this Agreement, to the Collateral Agent’s
right to appoint a trustee or receiver to acquire or assume control of the
Collateral, subject only to required judicial, FCC or other consents required
by governmental authorities, in order to effectuate the transactions
contemplated by this Section 6.15 and (y) waives any right
such Grantor may have to object to the appointment of such trustee or receiver,
such Grantor acknowledging that the Collateral Agent’s uncontested right to
have a trustee or receiver appointed for the foregoing purposes is considered
essential by Holders in connection with the enforcement of their rights and
remedies hereunder and was a material factor in inducing Holders to participate
in the Exchange Offer and/or hold the Notes. 
Such trustee or receiver shall have all the rights and powers as
provided to it by law or court order, or to the Collateral Agent under this
Agreement.  Each Grantor shall cooperate
fully in obtaining the consent of the FCC and the approval or consent of each
other governmental authority required to effectuate the foregoing.


 


(c)           Without limiting the
obligations of any Grantor hereunder and the rights of the Collateral Agent
hereunder in any respect, each Grantor further agrees that if such Grantor,
upon or after the occurrence (and during the continuance) of an Event of
Default, should fail or refuse for any reason whatsoever, to sign (within five (5) Business
Days of a request by Collateral Agent) any application to the FCC or any other
governmental authority which is necessary or useful for the exercise of any
remedy by Collateral Agent hereunder, such Grantor agrees that such application
may be executed on such Grantor’s behalf by the clerk or other designee of any
court of competent jurisdiction without notice to such Grantor pursuant to
court order.


 


SECTION 6.16             Additional Parties.  Pursuant to Section 5.20 of the
Indenture, each Guarantor that was not in existence or not a Guarantor on the
Closing Date is required to enter into this Agreement as a Grantor within such
periods set forth in the Indenture.  Upon
execution and delivery by the Collateral Agent and such Guarantor of a
supplement in the form of Exhibit A hereto, such Guarantor shall
become a Grantor hereunder with the same force and effect as if originally
named as a Grantor herein.  The execution
and delivery of any such instrument shall not require the consent of the
Borrower or any other Guarantor hereunder. 
The rights and obligations of each Grantor hereunder shall remain in
full force and effect notwithstanding the addition of any new Grantor as a
party to this Agreement.


 


SECTION 6.17             Security Interest and Obligations
Absolute.  Subject to Section 6.14
hereof, all rights of the Collateral Agent hereunder, the Security Interest,
the grant of a security interest in the Pledged Collateral and all obligations
of each Grantor hereunder shall be absolute and unconditional irrespective of (a) any
lack of validity or enforceability of the Indenture, any other Note Document,
any agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any change in the time,
manner or place of payment of, or in any other term of, all or any of the
Obligations, or any other 


 


24

















 


amendment
or waiver of or any consent to any departure from the Indenture, any other Note
Document, or any other agreement or instrument (so long as the same are made in
accordance with the terms of the Indenture), (c) any exchange, release or
non-perfection of any Lien on other collateral, or any release or amendment or
waiver of or consent under or departure from any guarantee, securing or
guaranteeing all or any of the Obligations, (d) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or the like of any other Grantor, (e) any exercise, non-exercise or waiver
of any right, remedy, power or privilege under or in respect hereof, the
Indenture or any other Note Document except as specifically set forth in a
waiver, forbearance, consent or amendment granted pursuant to the provisions of
Section 6.08 hereof, or (f) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Grantor in
respect of the Obligations or this Agreement.


 


[Remainder
of page intentionally left blank]


 


25

















 


IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the day and year first above written.


 


	
   

  	
  FIBERTOWER CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FIBERTOWER NETWORK SERVICES CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FIBERTOWER SOLUTIONS CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ART LICENSING CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ART LEASING, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  



 


[SIGNATURE
PAGE TO COLLATERAL AGREEMENT]


 

















 


	
   

  	
  TELIGENT SERVICES ACQUISITION, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Thomas A. Scott

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  



 


[SIGNATURE
PAGE TO COLLATERAL AGREEMENT]


 

















 


	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[SIGNATURE
PAGE TO COLLATERAL AGREEMENT]


 

















 


Schedule
I to the

Collateral Agreement


 


SUBSIDIARY GUARANTORS


 


FiberTower Network Services Corp.


 


FiberTower Solutions Corporation


 


ART Licensing Corp.


 


ART Leasing, Inc.


 


Teligent Services Acquisition, Inc.


 
















 


Schedule
II to the

Collateral Agreement


 


EQUITY
INTERESTS


 


	
  Issuer

  	
   

  	
  Number of

  Certificate

  	
   

  	
  Registered

  Owner

  	
   

  	
  Number of 

  Class of 

  Equity Interest

  	
   

  	
  Percentage

  of Equity

  Interests

  	
   

  
	
  FiberTower Network
  Services Corp.

  	
   

  	
  001

  	
   

  	
  FiberTower Corporation

  	
   

  	
  1,000

  	
   

  	
  100

  	
  %

  
	
  ART Leasing, Inc.

  	
   

  	
  001

  	
   

  	
  FiberTower Corporation

  	
   

  	
  100

  	
   

  	
  100

  	
  %

  
	
  ART Licensing Corp.

  	
   

  	
  001

  	
   

  	
  FiberTower Corporation

  	
   

  	
  1,000

  	
   

  	
  100

  	
  %

  
	
  FiberTower Solutions
  Corporation

  	
   

  	
  001

  	
   

  	
  FiberTower Corporation

  	
   

  	
  1,000

  	
   

  	
  100

  	
  %

  
	
  Teligent Services
  Acquisition, Inc.

  	
   

  	
  001

  	
   

  	
  FiberTower Corporation

  	
   

  	
  1,000

  	
   

  	
  100

  	
  %

  



 


PLEDGED
DEBT SECURITIES


 


None


 

















 


Schedule
III to the

Collateral Agreement


 


COPYRIGHTS
OWNED BY GRANTORS


 


U.S. Copyright Registrations


 


None.


 


PATENTS
OWNED BY GRANTORS


 


U.S. Patents


 


None.


 


TRADEMARKS
OWNED BY GRANTORS


 


U.S. Trademark Applications


 


	
  Owner

  	
   

  	
  Application Number

  	
   

  	
  Trademark

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FiberTower Solutions
  Corporation

  	
   

  	
  78/752956

  	
   

  	
  MuniFrame

  



 

















 


Schedule
IV to the

Collateral Agreement


 


UCC
FILING OFFICES


 


Delaware Secretary of State


 

















 


Schedule
V to the

Collateral Agreement


 


UCC
INFORMATION


 


	
  Legal Name

  	
   

  	
  Jurisdiction

  	
   

  	
  Mailing Address

  	
   

  	
  Organizational

  Identification

  Number

  	
   

  	
  Federal Taxpayer

  Identification

  Number

  
	
  FiberTower Corporation

  	
   

  	
  Delaware

  	
   

  	
  185 Berry St.,
  Suite 4800

  San Francisco, CA 94107

  	
   

  	
  2348373

  	
   

  	
  52-1869023

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FiberTower Network
  Services Corp.

  	
   

  	
  Delaware

  	
   

  	
  185 Berry St.,
  Suite 4800

  San Francisco, CA 94107

  	
   

  	
  3261371

  	
   

  	
  52-2312256

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FiberTower Solutions
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  185 Berry St.,
  Suite 4800

  San Francisco, CA 94107

  	
   

  	
  3971695

  	
   

  	
  20-3363366

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ART Licensing Corp.(1)

  	
   

  	
  Delaware

  	
   

  	
  185 Berry St.,
  Suite 4800

  San Francisco, CA 94107

  	
   

  	
  2492713

  	
   

  	
  52-1933157

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ART Leasing, Inc.(2)

  	
   

  	
  Delaware

  	
   

  	
  185 Berry St.,
  Suite 4800

  San Francisco, CA 94107

  	
   

  	
  2852604

  	
   

  	
  91-2048517

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Teligent Acquisition
  Services, Inc.

  	
   

  	
  Delaware

  	
   

  	
  185 Berry St., Suite 4800

  San Francisco, CA 94107

  	
   

  	
  3910608

  	
   

  	
  20-2303658

  



 






(1) Pending name change to FiberTower
Licensing Corp.


 


(2) Pending name change to FiberTower
Broadband Corp.


 


Prior Names:


 


None


 

















 


Schedule
VI to the

Collateral Agreement


 


COMMERCIAL
TORT CLAIMS, CHATTEL PAPER AND INSTRUMENTS


 


None.


 

















 


Exhibit A
to the

Collateral Agreement


 


SUPPLEMENT
NO. [·] (this “Supplement”)
dated as of [·], to the
Collateral Agreement dated as of December 7, 2009 (the “Collateral
Agreement”), among FIBERTOWER CORPORATION, a Delaware corporation (the “Borrower”),
each subsidiary of the Borrower from time to time party thereto (each such
subsidiary of Borrower, a “Guarantor” and collectively, the “Guarantors”;
the Guarantors and the Borrower are referred to collectively herein as the “Grantors”)
and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent (in such
capacity, the “Collateral Agent”) for the Secured Parties (as defined
therein).


 


A.            Reference is made to the
Indenture dated as of December 7, 2009 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the “Indenture”),
among the Borrower, certain Subsidiaries of the Borrower party thereto, Wells
Fargo Bank, National Association, as trustee (in such capacity, the “Trustee”).


 


B.            Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Indenture or the Collateral Agreement, as applicable.


 


C.            The Grantors have entered
into the Collateral Agreement in order to induce the Holders to purchase
Notes.  Section 6.16 of the
Collateral Agreement provides that certain additional Restricted Subsidiaries
of the Borrower may become Grantors under the Collateral Agreement by execution
and delivery of an instrument in the form of this Supplement.  The undersigned subsidiary (the “New Party”)
is executing this Supplement in accordance with the requirements of the
Indenture to become a Grantor under the Collateral Agreement.


 


Accordingly,
the Collateral Agent and the New Party agree as follows:


 


SECTION 1.           In accordance with Section 6.16
of the Collateral Agreement, the New Party by its signature below becomes a
Grantor under the Collateral Agreement with the same force and effect as if
originally named therein as a Grantor and the New Party hereby (a) agrees
to all the terms and provisions of the Collateral Agreement applicable to it as
a Grantor thereunder and (b) represents and warrants that it has become a
Guarantor under the Indenture and that the representations and warranties made
by it as a Grantor under the Collateral Agreement are true and correct in all
material respects on and as of the date hereof (for this purpose, as though
references therein to the Closing Date were to the date hereof).  In furtherance of the foregoing, the New
Party, as security for the payment and performance in full of the Obligations
(as defined in the Collateral Agreement), does hereby create and grant to the
Collateral Agent, its successors and permitted assigns, for the benefit of the
Secured Parties, their successors and permitted assigns, a security interest in
and lien on all of the New Party’s right, title and interest in and to the
Collateral (as defined in the Collateral Agreement) of the New Party.  Each reference to a “Grantor” or a “Guarantor”
in the Collateral Agreement shall be deemed to include the New Party.  The Collateral Agreement is hereby
incorporated herein by reference.


 

















 


SECTION 2.           The New Party represents and
warrants to the Collateral Agent and the other Secured Parties that this
Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms except as the enforceability thereof may be limited
by bankruptcy, insolvency or other similar laws relating to the enforcement of
creditors’ rights generally and by general equitable principles.


 


SECTION 3.           This Supplement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract.  This Supplement shall become effective when
the Collateral Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Party and the Collateral
Agent.  Delivery of an executed signature
page to this Supplement by facsimile or electronic transmission shall be
as effective as delivery of a manually signed counterpart of this Supplement.


 


SECTION 4.           The New Party hereby
represents and warrants that (a) set forth on Schedule I attached
hereto is a true and correct schedule of (i) any and all Equity Interests
and Pledged Debt Securities now owned by the New Party, (ii) any and all
United States federal registrations and pending applications for Trademarks,
Patents and Copyrights now owned by the New Party, (iii) any and all
Commercial Tort Claims of such New Party, and (iv) any and all Instruments
and Chattel Paper held by such New Party meeting the thresholds required by Section 3.04
of the Collateral Agreement, and (b) set forth under its signature hereto,
is the true and correct legal name of the New Party and its jurisdiction of
organization.


 


SECTION 5.           Except as expressly
supplemented hereby, the Collateral Agreement shall remain in full force and
effect.


 


SECTION 6.         THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENT 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 7.           In case any one or more of
the provisions contained in this Supplement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and in the Collateral Agreement shall not
in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other
jurisdiction).  The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.


 


SECTION 8.           All communications and
notices hereunder shall (except as otherwise expressly permitted by the
Collateral Agreement) be in writing and given as provided in Section 14.02
of the Indenture.  All communications and
notices hereunder to the New Party shall be given to it in care of the Borrower
as provided in Section 14.02 of the Indenture.


 


36

















 


SECTION 9.           The New Party agrees to
reimburse the Collateral Agent for its out-of-pocket expenses in connection
with this Supplement (including reasonable fees and disbursements of counsel),
and to indemnify it, in accordance with Section 6.05 of the Collateral
Agreement.


 


37
















 


IN
WITNESS WHEREOF, the New Party and the Collateral Agent have duly executed this
Supplement to the Collateral Agreement as of the day and year first above
written.


 


	
   

  	
  [NAME OF NEW PARTY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Legal Name:

  
	
   

  	
  Jurisdiction of Formation:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


38

















 


SCHEDULE I


 


Collateral of the New Party


 


EQUITY
INTERESTS


 


	
  Issuer

  	
   

  	
  Number of

  Certificate

  	
   

  	
  Registered

  Owner

  	
   

  	
  Number and

  Class of

  Equity Interest

  	
   

  	
  Percentage

  of Equity

  Interests

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


PLEDGED
DEBT SECURITIES


 


	
  Issuer

  	
   

  	
  Principal

  Amount

  	
   

  	
  Date of Note

  	
   

  	
  Maturity Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


INTELLECTUAL
PROPERTY


 


COMMERCIAL
TORT CLAIMS


 


INSTRUMENTS


 


CHATTEL
PAPER


 

















 


COPYRIGHTS OWNED BY GRANTORS


 


U.S. Copyright Registrations


 


	
  Title

  	
   

  	
  Reg. No.

  	
   

  	
  Author

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Pending U.S. Copyright Applications for Registration


 


	
  Title

  	
   

  	
  Author

  	
   

  	
  Class

  	
   

  	
  Date Filed

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


PATENTS
OWNED BY GRANTORS


 


U.S. Patents


 


	
  Patent No.

  	
   

  	
  Issue Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


U.S. Patent Applications


 


	
  Patent Application No.

  	
   

  	
  Filing Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 

















 


TRADEMARKS
OWNED BY GRANTORS


 


U.S. Trademark Registrations


 


	
  Mark

  	
   

  	
  Reg. Date

  	
   

  	
  Reg. No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S. Trademark Applications


 


	
  Mark

  	
   

  	
  Filing Date

  	
   

  	
  Application No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 
















 


Exhibit L


 


FORM OF COLLATERAL
ASSIGNMENT (COPYRIGHTS)


 

















 


[FORM OF]


 


COLLATERAL ASSIGNMENT
(COPYRIGHTS) (INTERIM NOTES)


 


THIS COLLATERAL ASSIGNMENT (COPYRIGHTS) (INTERIM NOTES) (the “Assignment”),
dated as of [                        ], 2009,
is made and given by [                                ], a [                             ]
(the “Assignor”), to WELLS FARGO BANK, NATIONAL ASSOCIATION, as collateral
agent for the Holders of the Notes defined below (in such capacity, the “Agent,”
and the Agent together with its successors and assigns, the “Assignee”).


 


THIS ASSIGNMENT, AND THE
RIGHTS OF THE PARTIES HEREUNDER, ARE SUBJECT TO THE PROVISIONS OF THE OMNIBUS
INTERCREDITOR AGREEMENT, DATED AS OF [                                ],
2009, AMONG THE COLLATERAL AGENT, THE TRUSTEE AND THE OTHER CREDITORS PARTY
THERETO FROM TIME TO TIME, AND THE BORROWERS AND THE GUARANTORS, AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.


 


RECITALS


 


A.                                   Reference is made to the Indenture dated
as of [                ],
2009 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Indenture”), among FiberTower
Corporation (the “Borrower”), certain Subsidiaries of the Borrower party
thereto, and Wells Fargo Bank, National Association, as Trustee (in such
capacity, the “Trustee”), governing those certain 9.00% Mandatorily
Redeemable Convertible Senior Secured Notes Due 2012 (the “Notes”).  Capitalized terms used in this Assignment and
not otherwise defined herein have the meanings set forth in the Indenture.


 


B.                                     In connection with the Indenture, each of
the Borrower and the Guarantors is entering into the Collateral Agreement,
dated as of even date with the Indenture (the “Collateral Agreement”), with
the Agent.  To secure all the Note
Obligations of the Assignor to the Assignee, Trustee, and the Holders arising
under the Notes and the Indenture and each other Note Document, whether now
existing or hereafter arising, the Assignor has pledged and granted to the
Assignee a security interest in the property described in the Collateral
Agreement, which property includes general intangibles including, without
limitation, patents, inventions, trademarks, trade names, copyrights, and trade
secrets.  The Assignor owns the copyright
registrations set forth in Exhibit A attached hereto, and the copyrights
so listed are registered or application has been made for such registration as
noted in Exhibit A in the United States Copyright Office or
applicable foreign copyright office.


 


C.                                     The Holders have agreed to acquire the
Notes pursuant to the Exchange Offer or to purchase the Notes, in each case
pursuant to, and upon the terms and conditions specified in, the Indenture
and/or the Exchange Offer.  The Indenture
and the Collateral Agreement require, and the Exchange Offer contemplates,
among other things, the execution and delivery of this Assignment by the
Borrower and each Guarantor. 
Accordingly, the parties hereto agree as follows:


 

















 


1.                                       The Assignor does hereby collaterally
(and, effective upon the giving of a notice by the Assignee of the type
described in the next sentence, absolutely) assign, to the extent not
prohibited by applicable law, all of its right, title, and interest in and to all of
the present United States and foreign copyrights, registered or unregistered,
now or hereafter acquired, by Assignor in and to all copyrightable works,
including, but not limited to, those copyright registrations identified on Exhibit A,
(the “Copyrights”), including but not limited to those registered
copyrights set forth on Exhibit A, and including, without
limitation, all proceeds thereof together with the right to recover for past,
present and future infringements, all rights corresponding thereto throughout
the world and all renewals and extensions thereof, said Copyrights to be held
and enjoyed by the Assignee, for its own use and behalf, and for its legal
representatives, successors and assigns, as fully and entirely as the same
would have been held by the Assignor had this Assignment not been made.  Except to the extent the
foregoing assignment creates a collateral assignment (which assignment is
currently effective), the foregoing assignment shall be effective only upon the
written notice by the Assignee to the Assignor of the acceptance by the
Assignee of this Assignment that is given upon and occurrence and during the
continuation of an Event of Default under the Indenture, which written notice
shall constitute conclusive proof of the matters set forth therein; unless and
until the giving of such notice by the Agent, such assignment shall have no
effect.  Upon the occurrence and
continuation of an Event of Default under the Indenture, the Assignee shall be
entitled to transfer the Copyrights pursuant to the Assignment of Copyrights
attached hereto as Exhibit B. 
Assignor hereby irrevocably authorizes the Assignee to complete
(including without limitation attaching an appropriate updated list of
Copyrights as an annex thereto) the undated Assignments of Copyrights at the
time of transfer.


 


2.                                       The Assignor hereby covenants and
warrants that:


 


(a)                                  except for applications pending, the
Copyrights listed on Exhibit A have been duly issued and are
subsisting and, as of the date hereof, have not been adjudged invalid or unenforceable
in whole or in part;


 


(b)                                 as of the date hereof or, if later, the
date on which Exhibit A is amended as described in Section 4
hereof (but only as to Copyrights that are added to Exhibit A on such
date), to the Assignor’s knowledge, each of the Copyrights listed on Exhibit A
is valid and enforceable;


 


(c)                                  as of the date hereof, no written claim
has been made to the Assignor or, to the knowledge of the Assignor, to any
other person, that any of the Copyrights does or may violate the rights of any
third person and no claim has been made by the Assignor that any other person
is infringing upon the rights of the Assignor under the Copyrights, in each case
except to the extent that any such claim does not relate to any Copyright that
is material to the conduct of the Assignor’s business;


 


(d)                                 after the date
hereof, the Assignor will give prompt written notice to the Assignee of any
claim of the type described in the preceding clause (c) (and
notwithstanding whether such claim arose on, prior to or after the date
hereof);


 


2

















 


(e)                                  the Assignor has the unqualified right to
enter into this Assignment and perform its terms;


 


(f)                                    the Assignor will be, until the Note
Obligations shall have been satisfied in full and the Note Documents shall have
been terminated, in material compliance with statutory notice requirements, and
will pay all renewal, maintenance and other fees, relating to the Copyrights, that are
material to the conduct of the Assignor’s business;


 


(g)                                 except for Permitted Liens, the Assignor
is the sole and exclusive owner of the entire and unencumbered right, title,
and interest in and to each of the Copyrights listed on Exhibit A,
free and clear of any liens, charges, and encumbrances, including without
limitation licenses and covenants by the Assignor not to sue third persons;


 


(h)                                 as of the date hereof or, if later, the
date on which Exhibit A is amended as described in Section 4
hereof, the Copyrights listed on Exhibit A are all of the United States
Copyrights and applications therefor now owned by the Assignor; and


 


(i)                                     the Assignor will, at any time upon
reasonable request, communicate to the Assignee and its successors and assigns,
any facts relating to the Copyrights or the history thereof as may be known to
the Assignor or its officers, employees, and agents, and cause such officers,
employees, and agents with direct knowledge of material relevant
information to
testify as to the same in any infringement or other litigation at the
reasonable request of the Assignee.


 


3.                                       The Assignor agrees that, until the
rights of the Assignee in the Copyrights are terminated pursuant to Section 6,
it will not enter into any agreement that is in conflict with its obligations
under this Assignment.


 


4.                                       If, before the Note Obligations shall
have been satisfied in full (other than contingent indemnification
obligations), the Assignor shall obtain any new copyright or any enhancements
or derivative works therefrom, such copyrights shall be included in the definition
of “Copyrights” as used in this Assignment, Section 1 hereof
shall automatically apply thereto, and the Assignor shall give to the Assignee
prompt notice thereof in writing.  The
Assignor authorizes the Assignee to modify this Assignment by amending Exhibit A
to include any future copyright(s).


 


5.                                       The Assignor agrees not to sell, assign,
or encumber its interest in, or grant any license with respect to, any of the
Copyrights, except for the licenses listed on Exhibit C attached
hereto and except in the ordinary course of business and in accordance with the
terms of the Collateral Agreement and the Indenture.


 


6.                                       The Assignor agrees that it will
authorize, execute, and deliver to Assignee all documents requested by Assignee
to facilitate the purposes of this Assignment, including, but not limited to,
documents required to record Assignee’s interest in any appropriate office in
any domestic or foreign jurisdiction.  If
the Assignee is required by the Collateral Agreement to release its Lien in any
or all of the Copyrights, the Assignee shall upon request of the Assignor
execute and deliver to the Assignor all termination statements and other
instruments 


 


3

















 


as may be necessary or proper to terminate this Assignment
and assign to the Assignor all the Assignee’s rights in the subject Copyrights.


 


7.                                       Upon the
occurrence and during the continuation of an Event of Default, the Assignee shall have the right but shall
in no way be obligated to bring suit in its own name to enforce or to defend
the Copyrights or any license thereunder if the Assignor has failed to bring
such suit in circumstances in which a prudent person would have brought such
suit.  The Assignor shall at the  reasonable request of the Assignee do any and
all lawful acts and execute any and all proper documents required by the
Assignee in aid of such enforcement or defense (including without limitation
participation as a plaintiff or defendant in any proceeding), and, if Assignor
has failed to bring such suit in circumstances in which a prudent person would
have brought such suit, the Assignor shall promptly, upon demand, reimburse and
indemnify the Assignee for all costs and expenses (including reasonable fees
and disbursements of counsel) incurred by the Assignee in the exercise of its
rights under this Section.


 


8.                                       This Assignment shall also serve to
evidence the security interest in the Copyrights granted by the Assignor to the
Assignee pursuant to the Collateral Agreement.


 


9.                                       No course of dealing between the Assignor
and the Assignee, failure to exercise, nor any delay in exercising, on the part
of the Assignee, with respect to any right, power, or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power, or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege.


 


10.                                 All of the Assignee’s rights and remedies
with respect to the Copyrights, whether established hereby, by any other
agreements, or by law, shall be cumulative and may be exercised singularly or
concurrently.


 


11.                                 This Assignment is subject to
modification only by a writing signed by the parties, except as provided in Section 4
hereof.


 


12.                                 This Assignment shall inure to the
benefit of and be binding upon the respective successors and permitted assigns
of the parties.


 


13.                                 Upon payment in full of all Note
Obligations (other than Assignor’s unmatured indemnity obligations under any Note
Document), this Assignment shall terminate and all rights to the Copyrights
shall revert to the Assignor.


 


14.                                 The rights and remedies of the Assignee,
on behalf of the Secured Parties (as defined in the Collateral Agreement),
under this Assignment shall be subject to the Intercreditor Agreement, if any, as
in effect from time to time.  In the
event of any conflict between the terms of the Intercreditor Agreement and this
Assignment, the terms of the Intercreditor Agreement shall govern and control.


 


15.                                 THIS ASSIGNMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF) OF (A) ANY STATE AS TO RIGHTS OR INTERESTS 


 


4

















 


HEREUNDER WHICH ARISE UNDER THE LAWS OF SUCH
STATE, (B) THE UNITED STATES OF AMERICA AS TO RIGHTS AND INTERESTS
HEREUNDER THAT ARE REGISTERED OR FOR THE REGISTRATION OF WHICH APPLICATION IS
PENDING WITH THE UNITED STATES COPYRIGHT OFFICE AND (C) THE STATE OF NEW
YORK IN ALL OTHER RESPECTS.  WHENEVER
POSSIBLE, EACH PROVISION OF THIS ASSIGNMENT AND ANY OTHER STATEMENT,
INSTRUMENT, OR TRANSACTION CONTEMPLATED HEREBY OR RELATING HERETO SHALL BE
INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW,
BUT IF ANY PROVISION OF THIS ASSIGNMENT OR ANY OTHER STATEMENT, INSTRUMENT, OR
TRANSACTION CONTEMPLATED HEREBY OR RELATING HERETO SHALL BE HELD TO BE
PROHIBITED OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE
ONLY TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE
REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS ASSIGNMENT OR
ANY OTHER STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED HEREBY OR RELATING
HERETO.  IN THE EVENT OF ANY CONFLICT
WITHIN, BETWEEN, OR AMONG THE PROVISIONS OF THIS ASSIGNMENT, ANY OTHER NOTE
DOCUMENT, OR ANY OTHER STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED
HEREBY OR THEREBY OR RELATING HERETO OR THERETO, THOSE PROVISIONS GIVING THE
ASSIGNEE THE GREATER RIGHT SHALL GOVERN.


 


[The remainder of
this page is intentionally left blank.]


 


5

















 


IN WITNESS WHEREOF, the Assignor has executed this instrument.


 


	
   

  	
  [                                                   ]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Collateral Assignment –
Copyrights ([ENTITY])]


 

















 


EXHIBIT A


 


to


 


COLLATERAL ASSIGNMENT (COPYRIGHTS)


 


COPYRIGHT SCHEDULE


 


	
  Title of Work

  	
   

  	
  Year

  	
   

  	
  Registration Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-1

















 


EXHIBIT B


 


to


 


COLLATERAL ASSIGNMENT (COPYRIGHTS)


 


FORM OF


ASSIGNMENT OF COPYRIGHTS


 


WHEREAS, [                            ],
a [                     ]
(“Assignor”), is the owner of the entire right, title and interest in
and to certain United States Copyrights in certain works and
registrations and applications therefor (“Copyrights”), including without
limitation, those as may be listed on any annex hereto; and


 


WHEREAS, [                   ],
in its capacity as collateral agent (the “Agent” for the holders (the “Holders”)
from time to time of the Notes issued under that certain Indenture dated as of [                     ],
2009, among FiberTower Corporation (the “Borrower”), certain
Subsidiaries of the Borrower party thereto, and Wells Fargo Bank, National
Association, as Trustee (in such capacity, the “Trustee”), governing
those certain 9.00% Mandatorily Redeemable Convertible Senior Secured Notes due
2012 (the “Notes”), desires to acquire the entire right, title, and
interest in and to the aforesaid Copyrights, together with any and all causes
of action and rights of recovery for past infringements of the Copyrights, and
all of the rights vested in the Assignor by virtue of the instruments pursuant
to which Assignor became vested with its ownership of the Copyrights;


 


NOW, THEREFORE, for good and valuable consideration received by
Assignor from Assignee, the receipt of which is hereby acknowledged,


 


1.                                       The Assignor hereby sells, assigns,
transfers, and conveys unto the Assignee the entire right, title, and interest
in and to the Copyrights, including each and every Copyright that is granted on
any application that is a division, substitution, or continuation of such
Copyright, and in and to each and every reissue or extension of the Copyrights.


 


2.                                       The Assignor further sells, assigns,
transfers and conveys unto the Assignee the entire right, title and interest in
and to any and all causes of action and rights of recovery for past
infringement of the Copyrights.


 


3.                                       The terms, covenants, and provisions of
this Assignment shall inure to the benefit of Assignee and its successors,
assigns, and/or legal representatives, and shall be binding upon the Assignor
and its successors, assigns, and/or legal representatives.


 


4.                                       The Assignor hereby irrevocably
authorizes the Assignee to date this undated Assignment and otherwise complete
this Assignment at the time of transfer.


 


B-1

















 


IN WITNESS WHEREOF,  the Assignor
has executed and delivered this instrument this              day
of                                ,                     .


 


 


	
   

  	
  [                                         ]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Assignment of Copyrights
([ENTITY])]


 

















 


EXHIBIT C


 


to


 


COLLATERAL ASSIGNMENT (COPYRIGHTS)


 


COPYRIGHT LICENSES


 


None.


 


C-1
















 


Exhibit M


 


FORM OF COLLATERAL ASSIGNMENT (PATENTS)


 

















 


[FORM OF]


 


COLLATERAL ASSIGNMENT (PATENTS) (INTERIM NOTES)


 


THIS COLLATERAL ASSIGNMENT
(PATENTS) (INTERIM NOTES) (the “Assignment”), dated as of [              ], 2009,
is made and given by [                ],
a [                ]
(the “Assignor”), to WELLS FARGO BANK, NATIONAL ASSOCIATION, as
collateral agent for the Holders of the Notes defined below (in such capacity,
the “Agent,” and the Agent together with its successors and assigns, the
“Assignee”).


 


THIS ASSIGNMENT, AND THE
RIGHTS OF THE PARTIES HEREUNDER, ARE SUBJECT TO THE PROVISIONS OF THE OMNIBUS
INTERCREDITOR AGREEMENT, DATED AS OF [                                ],
2009, AMONG THE COLLATERAL AGENT, THE TRUSTEE AND THE OTHER CREDITORS PARTY
THERETO FROM TIME TO TIME, AND THE BORROWERS AND THE GUARANTORS, AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.


 


RECITALS


 


A.                                   Reference is
made to the Indenture dated as of [              ],
2009 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Indenture”), among FiberTower
Corporation (the “Borrower”), certain Subsidiaries of the Borrower party
thereto, and Wells Fargo Bank, National Association, as Trustee (in such
capacity, the “Trustee”), governing those certain 9.00% Mandatorily
Redeemable Convertible Senior Secured Notes Due 2012 (the “Notes”).  Capitalized terms used in this Assignment and
not otherwise defined herein have the meanings set forth in the Indenture.


 


B.                                     In connection
with the Indenture, each of the Borrower and the Guarantors is entering into
the Collateral Agreement, dated as of even date with the Indenture (the “Collateral
Agreement”), with the Agent.  To
secure all the Note Obligations of the Assignor to the Assignee, Trustee, and
the Holders arising under the Notes and the Indenture and each other Note
Document, whether now existing or hereafter arising, the Assignor has pledged
and granted to the Assignee a security interest in the property described in
the Collateral Agreement, which property includes general intangibles
including, without limitation, patents, inventions, trademarks, trade names,
copyrights, and trade secrets.  The
Assignor owns the patents registrations set forth in Exhibit A
attached hereto, and the patents so listed are registered or application has
been made for such registration as noted in Exhibit A in the United
States Patent and Trademark Office or applicable foreign patent office.


 


C.                                     The Holders
have agreed to acquire the Notes pursuant to the Exchange Offer or to purchase
the Notes, in each case pursuant to, and upon the terms and conditions
specified in the Indenture and/or the Exchange Offer.  The Indenture and the Collateral Agreement
require, and the Exchange Offer contemplates, among other things, the execution
and delivery of this Assignment by the Borrower and each Guarantor.  Accordingly, the parties hereto agree as
follows:


 


1.                                       The Assignor
does hereby collaterally (and, effective upon the giving of a notice by the
Assignee of the type described in the next sentence, absolutely) assign, to the
extent


 

















 


not prohibited by applicable
law, all of its right, title, and interest in and to all of the present United
States and foreign patents and the registrations and applications therefor
owned by the Assignor together with inventions disclosed therein (the “Patents”),
including but not limited to those registered patents set forth on Exhibit A,
and including, without limitation, all proceeds thereof together with the right
to recover for past, present, and future infringements, all rights
corresponding thereto throughout the world, and all renewals and extensions
thereof, said Patents to be held and enjoyed by the Assignee, for its own use
and behalf, and for its legal representatives, successors, and assigns, as
fully and entirely as the same would have been held by the Assignor had this
Assignment not been made.  Except to the
extent the foregoing assignment creates a collateral assignment (which
assignment is currently effective), the foregoing assignment shall be effective
only upon the written notice by the Assignee to the Assignor of the acceptance
by the Assignee of this Assignment that is given upon and occurrence and during
the continuation of an Event of Default under the Indenture, which written
notice shall constitute conclusive proof of the matters set forth therein;
unless and until the giving of such notice by the Agent, such assignment shall
have no effect.  Upon the occurrence and
continuation of an Event of Default under the Indenture, the Assignee shall be
entitled to transfer the Patents pursuant to the Assignment of Patents attached
hereto as Exhibit B. 
Assignor hereby irrevocably authorizes the Assignee to complete
(including without limitation attaching an appropriate updated list of Patents
as an annex thereto) the undated Assignments of Patents at the time of
transfer.


 


2.                                       The Assignor
hereby covenants and warrants that:


 


(a)                                  except for
applications pending, the Patents listed on Exhibit A have been
duly issued and are subsisting and, as of the date hereof, have not been
adjudged invalid or unenforceable in whole or in part;


 


(b)                                 as of the date
hereof or, if later, the date on which Exhibit A is amended as
described in Section 4 hereof (but only as to Patents that are
added to Exhibit A on such date), to the Assignor’s knowledge, each
of the Patents listed on Exhibit A is valid and enforceable;


 


(c)                                  as of the date
hereof, no written claim has been made to the Assignor or, to the knowledge of
the Assignor, to any other person, that any of the Patents or use of the
inventions described therein does or may violate the rights of any third person
and no claim has been made by the Assignor that any other person is infringing
upon the rights of the Assignor under the Patents, in each case except to the
extent that any such claim does not relate to any Patent that is material to
the conduct of the Assignor’s business;


 


(d)                                 after the date
hereof, the Assignor will give prompt written notice to the Assignee of any
claim of the type described in the preceding clause (c) (and
notwithstanding whether such claim arose on, prior to or after the date
hereof);


 


(e)                                  the Assignor
has the unqualified right to enter into this Assignment and perform its terms;


 


2

















 


(f)                                    the Assignor
will be, until the Note Obligations shall have been satisfied in full and the
Note Documents shall have been terminated, in material compliance with
statutory notice requirements, and will pay all renewal, maintenance and other
fees, relating to the Patents that are material to the conduct of the Assignor’s
business;


 


(g)                                 except for
Permitted Liens, the Assignor is the sole and exclusive owner of the entire and
unencumbered right, title, and interest in and to each of the Patents listed on
Exhibit A, free and clear of any liens, charges, and encumbrances,
including without limitation licenses and covenants by the Assignor not to sue
third persons;


 


(h)                                 as of the date
hereof or, if later, the date on which Exhibit A is amended as
described in Section 4 hereof, the Patents listed on Exhibit A
are all of the United States and foreign Patents and applications therefor now
owned by the Assignor; and


 


(i)                                     the Assignor
will, at any time upon reasonable request, communicate to the Assignee and its
successors and assigns any facts relating to the Patents or the history thereof
that may be known to the Assignor or its officers, employees, and agents, and
cause such officers, employees, and agents with direct knowledge of material
relevant information to testify as to the same in any infringement or other
litigation at the reasonable request of the Assignee.


 


3.                                       The Assignor
agrees that, until the rights of the Assignee in the Patents are terminated pursuant
to Section 6, it will not enter into any agreement that is in
conflict with its obligations under this Assignment.


 


4.                                       If, before the
Note Obligations shall have been satisfied in full (other than contingent
indemnification obligations), the Assignor shall obtain rights to any new
patent, or become entitled to the benefit of any patent application or
registration or any renewal or extension of any patent registration, such shall
be included in the definition of “Patents” as used in this Assignment, Section 1
hereof shall automatically apply thereto, and the Assignor shall give to the
Assignee prompt notice thereof in writing. 
The Assignor authorizes the Assignee to modify this Assignment by
amending Exhibit A to include any future patent(s).


 


5.                                       The Assignor
agrees not to sell, assign, or encumber its interest in, or grant any license
with respect to, any of the Patents, except for the licenses listed on Exhibit C
attached hereto and except in the ordinary course of business and in accordance
with the terms of the Collateral Agreement and the Indenture.


 


6.                                       The Assignor
agrees that it will authorize, execute, and deliver to Assignee all documents
requested by Assignee to facilitate the purposes of this Assignment, including,
but not limited to, documents required to record Assignee’s interest in any
appropriate office in any domestic or foreign jurisdiction.  If the Assignee is required by the Collateral
Agreement to release its Lien in any or all of the Patents, the Assignee shall
upon request of the Assignor execute and deliver to the Assignor all
termination statements and other instruments as may be necessary or proper to
terminate this Assignment and assign to the Assignor all the Assignee’s rights
in the subject Patents.


 


3

















 


7.                                       The Assignor
shall (a) prosecute diligently any pending Patent application as of
the date of this Assignment or thereafter until the Indenture and the Note
Documents shall have been terminated in accordance with their terms, (b) make
application on those patentable inventions, products, and processes that are
unregistered but capable of being registered and that a prudent person would
reasonably cause to be registered, and (c) preserve and maintain all
rights in all Patents that a prudent person would reasonably preserve and
maintain, provided that Assignor shall not be obligated to perform any of
clauses (a), (b), or (c) above in the event that Assignor
determines, in the reasonable business judgment of Assignor, that the same is not
material to the business of Assignor. 
Any expenses incurred in connection with applications that constitute
Patents shall be borne by the Assignor. 
The Assignor shall not abandon any material application presently
pending that constitutes a Patent without the written consent of the Assignee.


 


8.                                       Upon the
occurrence and during the continuation of an Event of Default, the Assignee
shall have the right but shall in no way be obligated to bring suit in its own
name to enforce or to defend the Patents or any license thereunder if the
Assignor has failed to bring such suit in circumstances in which a prudent
person would have brought such suit.  The
Assignor shall at the reasonable request of the Assignee do any and all lawful
acts and execute any and all proper documents required by the Assignee in aid
of such enforcement or defense (including, without limitation, participation as
a plaintiff or defendant in any proceeding) and, if Assignor has failed to
bring such suit in circumstances in which a prudent person would have brought
such suit, the Assignor shall promptly, upon demand, reimburse and indemnify
the Assignee for all costs and expenses (including reasonable fees and
disbursements of counsel) incurred by the Assignee in the exercise of its
rights under this Section.


 


9.                                       This Assignment
shall also serve to evidence the security interest in the Patents granted by
the Assignor to the Assignee pursuant to the Collateral Agreement.


 


10.                                 No course of
dealing between the Assignor and the Assignee, failure to exercise, nor any
delay in exercising, on the part of the Assignee, with respect to any right,
power, or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power, or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
power, or privilege.


 


11.                                 All of the
Assignee’s rights and remedies with respect to the Patents, whether established
hereby, by any other agreements, or by law shall be cumulative and may be
exercised singularly or concurrently.


 


12.                                 This Assignment
is subject to modification only by a writing signed by the parties, except as
provided in Section 4 hereof.


 


13.                                 This Assignment
shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties.


 


14.                                 Upon payment in
full of all Note Obligations (other than Assignor’s unmatured indemnity
obligations under any Note Document), this Assignment shall terminate and all
rights to the Patents shall revert to the Assignor.


 


4

















 


15.                                 The rights and
remedies of the Assignee, on behalf of the Secured Parties (as defined in the
Collateral Agreement), under this Assignment shall be subject to the
Intercreditor Agreement, if any, as in effect from time to time.  In the event of any conflict between the
terms of the Intercreditor Agreement and this Assignment, the terms of the
Intercreditor Agreement shall govern and control.


 


16.                                 THIS ASSIGNMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS (WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF) OF (A) THE UNITED STATES OF
AMERICA AS TO RIGHTS AND INTERESTS HEREUNDER THAT ARE REGISTERED OR FOR THE
REGISTRATION OF WHICH APPLICATION IS PENDING WITH THE UNITED STATES PATENT AND
TRADEMARK OFFICE AND (B) THE STATE OF NEW YORK IN ALL OTHER
RESPECTS.  WHENEVER POSSIBLE, EACH
PROVISION OF THIS ASSIGNMENT AND ANY OTHER STATEMENT, INSTRUMENT, OR
TRANSACTION CONTEMPLATED HEREBY OR RELATING HERETO SHALL BE INTERPRETED IN SUCH
MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION
OF THIS ASSIGNMENT OR ANY OTHER STATEMENT, INSTRUMENT, OR TRANSACTION
CONTEMPLATED HEREBY OR RELATING HERETO SHALL BE HELD TO BE PROHIBITED OR
INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE ONLY TO THE
EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF
SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS ASSIGNMENT OR ANY OTHER
STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED HEREBY OR RELATING
HERETO.  IN THE EVENT OF ANY CONFLICT
WITHIN, BETWEEN, OR AMONG THE PROVISIONS OF THIS ASSIGNMENT, ANY OTHER NOTE
DOCUMENT, OR ANY OTHER STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED
HEREBY OR THEREBY OR RELATING HERETO OR THERETO, THOSE PROVISIONS GIVING THE
ASSIGNEE THE GREATER RIGHT SHALL GOVERN.


 


[The
remainder of this page is intentionally left blank.]


 


5

















 


IN WITNESS WHEREOF, the
Assignor has executed this instrument.


 


 


	
   

  	
  [                  ]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Collateral Assignment –
Patents ([ENTITY])]


 

















 


EXHIBIT A


 


to


 


COLLATERAL ASSIGNMENT (PATENTS)


 


U.S. PATENTS – ACTIVE


 


None.


 


U.S. PATENTS – APPLICATIONS


 


None.


 


FOREIGN PATENTS – ACTIVE


 


None.


 


FOREIGN PATENTS – APPLICATIONS


 


None.


 

















 


EXHIBIT B


 


to


 


COLLATERAL ASSIGNMENT (PATENTS)


 


FORM OF


ASSIGNMENT OF PATENTS


 


WHEREAS, [                  ],
a [                ]
(“Assignor”), is the owner of the entire right, title, and interest in
and to certain United States and foreign Patents and registrations and
applications therefor, together with the invention(s) disclosed therein (“Patents”),
including without limitation, those as may be listed on any annex hereto; and


 


WHEREAS, [                    ],
in its capacity as collateral agent (the “Agent”) for the holders (the “Holders”)
from time to time of the Notes issued under that certain Indenture dated as of
[              ],
2009 among FiberTower Corporation (the “Borrower”), certain Subsidiaries
of the Borrower party thereto, and Wells Fargo Bank, National Association, as
Trustee (in such capacity, the “Trustee”), governing those certain 9.00%
Mandatorily Redeemable Convertible Senior Secured Notes Due 2012 (the “Notes”),
desires to acquire the entire right, title, and interest in and to the
aforesaid Patents, together with the invention(s) disclosed therein, any
and all causes of action and rights of recovery for past infringements of the Patents,
and all of the rights vested in the Assignor by virtue of the instruments
pursuant to which Assignor became vested with its ownership of the Patents,
including the right, title, and interest in and to any and all improvements
acquired pursuant to the terms of such instruments;


 


NOW, THEREFORE, for good and
valuable consideration received by Assignor from Assignee, the receipt of which
is hereby acknowledged,


 


1.                                       The Assignor
hereby sells, assigns, transfers, and conveys unto the Assignee the entire right,
title, and interest in and to the Patents together with the invention(s) disclosed
therein, including each and every Patent that is granted on any application
that is a division, substitution, or continuation of such Patent, and in and to
each and every reissue or extension of the Patents.


 


2.                                       The Assignor
further sells, assigns, transfers, and conveys unto the Assignee the entire
right, title, and interest in and to any and all causes of action and rights of
recovery for past infringement of the Patents.


 


3.                                       The terms,
covenants, and provisions of this Assignment shall inure to the benefit of
Assignee and its successors, assigns, and/or legal representatives, and shall
be binding upon the Assignor and its successors, assigns, and/or legal
representatives.


 


4.                                       The Assignor
hereby irrevocably authorizes the Assignee to date this undated Assignment and
otherwise complete this Assignment at the time of transfer.


 

















 


IN WITNESS WHEREOF,  the Assignor has executed and delivered this
instrument this           
day of                             ,                     .


 


	
   

  	
  [                              ]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Assignment
of Patents ([ENTITY])]


 

















 


EXHIBIT
C


 


to


 


COLLATERAL ASSIGNMENT (PATENTS)


 


PATENT LICENSES


 


None.


 
















 


Exhibit N


 


FORM OF COLLATERAL ASSIGNMENTS
(TRADEMARKS)


 

















 


[FORM OF]


 


COLLATERAL ASSIGNMENT
(TRADEMARKS) (INTERIM NOTES)


 


THIS COLLATERAL ASSIGNMENT (TRADEMARKS) (INTERIM NOTES) (the “Assignment”),
dated as of [              ],
2009, is made and given by [                        ], a [                        ]
(the “Assignor”), to WELLS FARGO BANK, NATIONAL ASSOCIATION, as collateral
agent for the Holders of the Notes defined below (in such capacity, the “Agent,”
and the Agent together with its successors and assigns, the “Assignee”).


 


THIS ASSIGNMENT, AND THE
RIGHTS OF THE PARTIES HEREUNDER, ARE SUBJECT TO THE PROVISIONS OF THE OMNIBUS
INTERCREDITOR AGREEMENT, DATED AS OF [                                ],
2009, AMONG THE COLLATERAL AGENT, THE TRUSTEE AND THE OTHER CREDITORS PARTY
THERETO FROM TIME TO TIME, AND THE BORROWERS AND THE GUARANTORS, AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.


 


RECITALS


 


A.                                   Reference is made to the Indenture dated
as of [              ],
2009 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Indenture”), among FiberTower
Corporation (the “Borrower”), certain Subsidiaries of the Borrower party
thereto, and Wells Fargo Bank, National Association, as Trustee (in such
capacity, the “Trustee”), governing those certain 9.00% Mandatorily
Redeemable Convertible Senior Secured Notes Due 2012 (the “Notes”).  Capitalized terms used in this Assignment and
not otherwise defined herein have the meanings set forth in the Indenture.


 


B.                                     In connection with the Indenture, each of
the Borrower and the Guarantors is entering into the Collateral Agreement,
dated as of even date with the Indenture (the “Collateral Agreement”),
with the Agent.  To secure all the Note
Obligations of the Assignor to the Assignee, Trustee, and the Holders arising
under the Notes and the Indenture and each other Note Document, whether now
existing or hereafter arising, the Assignor has pledged and granted to the
Assignee a security interest in the property described in the Collateral
Agreement, which property includes general intangibles including, without
limitation, patents, inventions, trademarks, trade names, copyrights, and trade
secrets.  The Assignor owns the trademark
and trade name registrations set forth in Exhibit A attached
hereto, and the trademarks and trade names so listed are registered or
application has been made for such registration as noted in Exhibit A
in the United States Patent and Trademark Office or applicable foreign
trademark office.


 


C.                                     The Holders have agreed to acquire the
Notes pursuant to the Exchange Offer or to purchase the Notes, in each case
pursuant to, and upon the terms and conditions specified in, the Indenture
and/or the Exchange Offer.  The Indenture
and the Collateral Agreement require, and the Exchange Offer contemplates,
among other things, the execution and delivery of this Assignment by the
Borrower and each Guarantor. 
Accordingly, the parties hereto agree as follows:


 

















 


1.                                       The Assignor does hereby collaterally
(and, effective upon the giving of a notice by the Assignee of the type
described in the next sentence, absolutely) assign, to the extent not
prohibited by applicable law, all of its right, title, and interest in and to all of
the present United States and foreign trademarks and trade names and the
registrations and applications (except for intent to use applications) therefor
owned by the Assignor (the “Trademarks”), including but not limited to
those registered trademarks and tradenames set forth on Exhibit A,
and including, without limitation, any and all common law rights in Trademarks
owned by the Assignor, all proceeds thereof together with the right to recover
for past, present, and future infringements, all rights corresponding thereto
throughout the world, and all renewals and extensions thereof, together with
the goodwill of the business associated with said Trademarks, said Trademarks
to be held and enjoyed by the Assignee for its own use and behalf, and for its legal
representatives, successors, and assigns, as fully and entirely as the same
would have been held by the Assignor had this Assignment not been made.  Except to the extent the
foregoing assignment creates a collateral assignment (which assignment is currently
effective), the foregoing assignment shall be effective only upon the written
notice by the Assignee to the Assignor of the acceptance by the Assignee of
this Assignment that is given upon and occurrence and during the continuation
of an Event of Default under the Indenture, which written notice shall
constitute conclusive proof of the matters set forth therein; unless and until
the giving of such notice by the Agent, such assignment shall have no
effect.  Upon the occurrence and
continuation of an Event of Default under the Indenture, the Assignee shall be
entitled to transfer the Trademarks pursuant to the Assignment of Trademarks
attached hereto as Exhibit B. 
Assignor hereby irrevocably authorizes the Assignee to complete
(including without limitation attaching an appropriate updated list of
Trademarks as an annex thereto) the undated Assignments of Trademarks at the
time of transfer.


 


2.                                       The Assignor hereby covenants and
warrants that:


 


(a)                                  except for applications pending (and
intent to use applications), the Trademarks listed on Exhibit A
have been duly issued and are subsisting and, as of the date hereof, have not
been adjudged invalid or unenforceable in whole or in part;


 


(b)                                 as of the date hereof or, if later, the
date on which Exhibit A is amended as described in Section 4
hereof (but only as to Trademarks that are added to Exhibit A on
such date), to the Assignor’s knowledge, each of the Trademarks listed on Exhibit A
is valid and enforceable;


 


(c)                                  as of the date hereof, no written claim
has been made to the Assignor or, to the knowledge of the Assignor, to any
other person, that use of any of the Trademarks does or may violate the rights
of any third person and no claim has been made by the Assignor that any other
person is infringing upon the rights of the Assignor under the Trademarks, in each case
except to the extent that any such claim does not relate to any Trademark that
is material to the conduct of the Assignor’s business;


 


(d)                                 after the date
hereof, the Assignor will give prompt written notice to the Assignee of any
claim of the type described in the preceding clause (c) (and
notwithstanding whether such claim arose on, prior to or after the date
hereof);


 


2

















 


(e)                                  the Assignor has the unqualified right to
enter into this Assignment and perform its terms;


 


(f)                                    the Assignor will be, until the Note
Obligations shall have been satisfied in full and the Note Documents shall have
been terminated, in material compliance with statutory notice requirements, and
will pay all renewal, maintenance and other fees, relating to its use of the
Trademarks that are material to the conduct of the Assignor’s business;


 


(g)                                 except for Permitted Liens, the Assignor
is the sole and exclusive owner of the entire and unencumbered right, title,
and interest in and to each of the Trademarks listed on Exhibit A,
free and clear of any liens, charges, and encumbrances, including without
limitation licenses and covenants by the Assignor not to sue third persons;


 


(h)                                 as of the date hereof or, if later, the
date on which Exhibit A is amended as described in Section 4
hereof, the Trademarks listed on Exhibit A are all of the United
States and foreign Trademarks and applications therefor now owned by the
Assignor;


 


(i)                                     the Assignor will, at any time upon
reasonable request, communicate to the Assignee and its successors and assigns
any facts relating to the Trademarks or the history thereof as may be known to
the Assignor or its officers, employees, and agents, and cause such officers,
employees, and agents with direct knowledge of material relevant
information to testify as to the same in any infringement or other litigation
at the reasonable request of the Assignee; and


 


(j)                                     the Assignor will not, with respect to
any Trademarks which are material to the conduct of the Assignor’s business, cease to use any such Trademarks or
fail to maintain such level of quality or products sold and services rendered
under any of such Trademark at a level at least substantially consistent with
the quality of the products and services as of the date hereof, and Assignor
shall take all steps necessary to ensure that licensees of such Trademark use
such consistent standards of quality.


 


3.                                       The Assignor agrees that, until the
rights of the Assignee in the Trademarks are terminated pursuant to Section 6,
it will not enter into any agreement that is in conflict with its obligations
under this Assignment.


 


4.                                       If, before the Note Obligations shall
have been satisfied in full (other than contingent indemnification
obligations), the Assignor shall obtain rights to any new trademark or trade
name, or become entitled to the benefit of any trademark application (except
for intent to use applications), registration, trademark, or trade name or any
renewal or extension of any trademark registration, such shall be included in
the definition of “Trademarks” as used in this Assignment, Section 1
hereof shall automatically apply thereto, and the Assignor shall give to the
Assignee prompt notice thereof in writing. 
The Assignor authorizes the Assignee to modify this Assignment by
amending Exhibit A to include any future trademark or trade name.


 


5.                                       The Assignor agrees not to sell, assign,
or encumber its interest in, or grant any license with respect to, any of the
Trademarks, except for the licenses listed on Exhibit C


 


3

















 


attached hereto and except in the ordinary course of
business and in accordance with the terms of the Collateral Agreement and the
Indenture.


 


6.                                       The Assignor agrees that it will
authorize, execute, and deliver to Assignee all documents requested by Assignee
to facilitate the purposes of this Assignment, including, but not limited to,
documents required to record Assignee’s interest in any appropriate office in
any domestic or foreign jurisdiction.  If
the Assignee is required by the Collateral Agreement to release its Lien in any
or all of the Trademarks, the Assignee shall upon request of the Assignor
execute and deliver to the Assignor all termination statements and other
instruments as may be necessary or proper to terminate this Assignment and
assign to the Assignor all the Assignee’s rights in the subject Trademarks.


 


7.                                       The Assignor shall (a) prosecute
diligently any pending Trademark application as of the date of this Assignment
or thereafter until the Indenture and the Note Documents shall have been
terminated in accordance with their terms, (b) make application on those
trademarks and trade names that are unregistered but capable of being registered
and that a prudent person would reasonably cause to be registered, and (c) preserve
and maintain all rights in all Trademarks that a prudent person would
reasonably preserve and maintain, provided that Assignor shall not be obligated
to perform any of clauses (a), (b), or (c) above in the event that
Assignor determines, in the reasonable business judgment of Assignor, that the
same is not material to the business of Assignor.  Any expenses incurred in connection with
applications that constitute Trademarks shall be borne by the Assignor.  The Assignor shall not abandon any material
application presently pending that constitutes a Trademark without the written
consent of the Assignee.


 


8.                                       Upon the
occurrence and during the continuation of an Event of Default, the Assignee shall have the right but shall
in no way be obligated to bring suit in its own name to enforce or to defend
the Trademarks or any license thereunder if the Assignor has failed to bring
such suit in circumstances in which a prudent person would have brought such
suit.  The Assignor shall at the
reasonable request of the Assignee do any and all lawful acts and execute any
and all proper documents required by the Assignee in aid of such enforcement or
defense (including, without limitation, participation as a plaintiff or
defendant in any proceeding), and, if Assignor has failed to bring such suit in
circumstances in which a prudent person would have brought such suit, the
Assignor shall promptly, upon demand, reimburse and indemnify the Assignee for
all costs and expenses (including reasonable fees and disbursements of counsel)
incurred by the Assignee in the exercise of its rights under this Section.


 


9.                                       This Assignment shall also serve to
evidence the security interest in the Trademarks granted by the Assignor to the
Assignee pursuant to the Collateral Agreement.


 


10.                                 No course of dealing between the Assignor
and the Assignee, failure to exercise, nor any delay in exercising, on the part
of the Assignee, with respect to any right, power, or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power, or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege.


 


4

















 


11.                                 All of the Assignee’s rights and remedies
with respect to the Trademarks, whether established hereby, by any other
agreements, or by law, shall be cumulative and may be exercised singularly or
concurrently.


 


12.                                 This Assignment is subject to
modification only by a writing signed by the parties, except as provided in Section 4
hereof.


 


13.                                 This Assignment shall inure to the
benefit of and be binding upon the respective successors and permitted assigns
of the parties.


 


14.                                 Upon payment in full of all Note
Obligations (other than Assignor’s unmatured indemnity obligations under any Note
Document), this Assignment shall terminate and all rights to the Trademarks
shall revert to the Assignor.


 


15.                                 The rights and remedies of the Assignee,
on behalf of the Secured Parties (as defined in the Collateral Agreement),
under this Assignment shall be subject to the Intercreditor Agreement, if any, as
in effect from time to time.  In the
event of any conflict between the terms of the Intercreditor Agreement and this
Assignment, the terms of the Intercreditor Agreement shall govern and control.


 


16.                                 THIS ASSIGNMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF) OF (A) THE UNITED STATES OF AMERICA AS TO RIGHTS AND INTERESTS
HEREUNDER THAT ARE REGISTERED OR FOR THE REGISTRATION OF WHICH APPLICATION IS
PENDING WITH THE UNITED STATES PATENT AND TRADEMARK OFFICE AND (B) THE
STATE OF NEW YORK IN ALL OTHER RESPECTS. 
WHENEVER POSSIBLE, EACH PROVISION OF THIS ASSIGNMENT AND ANY OTHER
STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED HEREBY OR RELATING HERETO
SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER
APPLICABLE LAW, BUT IF ANY PROVISION OF THIS ASSIGNMENT OR ANY OTHER STATEMENT,
INSTRUMENT, OR TRANSACTION CONTEMPLATED HEREBY OR RELATING HERETO SHALL BE HELD
TO BE PROHIBITED OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE
INEFFECTIVE ONLY TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF
THIS ASSIGNMENT OR ANY OTHER STATEMENT, INSTRUMENT, OR TRANSACTION CONTEMPLATED
HEREBY OR RELATING HERETO.  IN THE EVENT
OF ANY CONFLICT WITHIN, BETWEEN, OR AMONG THE PROVISIONS OF THIS ASSIGNMENT,
ANY OTHER NOTE DOCUMENT, OR ANY OTHER STATEMENT, INSTRUMENT, OR TRANSACTION
CONTEMPLATED HEREBY OR THEREBY OR RELATING HERETO OR THERETO, THOSE PROVISIONS
GIVING THE ASSIGNEE THE GREATER RIGHT SHALL GOVERN.


 


[The remainder of this page is
intentionally left blank.]


 


5

















 


IN WITNESS WHEREOF, the
Assignor has executed this instrument.


 


	
   

  	
  [                                          ]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Collateral Assignment –
Trademarks ([ENTITY])]


 

















 


EXHIBIT A


 


to


 


COLLATERAL ASSIGNMENT (TRADEMARKS)


 


TRADEMARK SCHEDULE


 


U.S. Registrations


 


	
  Trademarks

  	
   

  
	
  Trademark

  	
   

  	
  Jurisdiction

  	
   

  	
  Registration Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Foreign Registrations


 


	
  Trademarks

  	
   

  
	
  Trademark

  	
   

  	
  Country

  	
   

  	
  Registration Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-2

















 


EXHIBIT B


 


to


 


COLLATERAL ASSIGNMENT (TRADEMARKS)


 


FORM OF


ASSIGNMENT OF TRADEMARKS


 


WHEREAS, [                        ],
a [                        ]
(“Assignor”), is the owner of the entire right, title and interest in
and to certain United States and foreign trademarks and tradenames and
registrations and applications therefor (“Trademarks”), including without
limitation, those as may be listed on any annex hereto; and


 


WHEREAS, [                    ],
in its capacity as collateral agent (the “Agent”) holders (the “Holders”)
from time to time of the Notes issued under that certain Indenture dated as of [                  ]
2009, FiberTower Corporation (the “Borrower”), certain Subsidiaries of
the Borrower party thereto, and Wells Fargo Bank, National Association, as
Trustee (in such capacity, the “Trustee”), governing those certain 9.00%
Mandatorily Redeemable Convertible Senior Secured Notes Due 2012 (the “Notes”),
desires to acquire the entire right, title, and interest in and to the
aforesaid Trademarks, together with any and all causes of action and rights of
recovery for past infringements of the Trademarks, and all of the rights vested
in the Assignor by virtue of the instruments pursuant to which Assignor became
vested with its ownership of the Trademarks;


 


NOW, THEREFORE, for good and valuable consideration received by
Assignor from Assignee, the receipt of which is hereby acknowledged,


 


1.  The Assignor hereby sells,
assigns, transfers, and conveys unto the Assignee the entire right, title, and
interest in and to the Trademarks, including each and every Trademarks that is
granted on any application (except for intent to use applications) that is a
division, substitution, or continuation of such Trademarks, and in and to each
and every reissue or extension of the Trademarks.


 


2.  The Assignor further sells,
assigns, transfers, and conveys unto the Assignee the entire right, title, and
interest in and to any and all causes of action and rights of recovery for past
infringement of the Trademarks.


 


3.  The terms, covenants, and
provisions of this Assignment shall inure to the benefit of Assignee and its
successors, assigns, and/or legal representatives, and shall be binding upon
the Assignor and its successors, assigns, and/or legal representatives.


 


4.  The Assignor hereby
irrevocably authorizes the Assignee to date this undated Assignment and
otherwise complete this Assignment at the time of transfer.


 


B-1

















 


IN WITNESS WHEREOF,  the Assignor
has executed and delivered this instrument this               
day of                                   ,
                      .


 


 


	
   

  	
  [                                  ]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Assignment of
Trademarks ([ENTITY])]


 

















 


EXHIBIT C


 


to


 


COLLATERAL ASSIGNMENT (TRADEMARKS)


 


TRADEMARK LICENSES


 


None.


 


C-1