exv4w1






Exhibit 4.1




 





Cricket Communications, Inc.




7.75% SENIOR SECURED NOTES DUE 2016




 






Indenture




Dated as of June 5, 2009




 






Wilmington Trust FSB




Trustee




 






 






 









 








CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture	 	 
	   Act Section	 	Indenture Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.10
	(b)
	 	7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.06
	(b)
	 	13.03
	(c)
	 	13.03
	313(a)
	 	7.06
	(b)(1)
	 	7.06, 10.07
	(b)(2)
	 	7.06, 10.07
	(c)
	 	7.06, 13.02
	(d)
	 	7.06
	314(a)
	 	4.03, 4.04, 13.05
	(b)
	 	10.06
	(c)(1)
	 	7.02, 13.04
	(c)(2)
	 	7.02, 13.04
	(c)(3)
	 	N.A.
	(d)
	 	10.07, 10.08
	(e)
	 	13.05
	(f)
	 	N.A.
	315(a)
	 	7.01
	(b)
	 	7.05
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a) (last sentence)
	 	2.10
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07








 




			
	 	 	N.A. means not applicable.
	 
	*	 	This Cross-Reference Table is not part of the Indenture.




 









 










	 	 	 
	Trust Indenture	 	 
	   Act Section	 	Indenture Section
	(c)
	 	2.13, 9.02, 13.14
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.05
	318(a)
	 	13.01
	(b)
	 	N.A.
	(c)
	 	13.01







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE ONE

DEFINITIONS AND INCORPORATION

BY REFERENCE

	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	37	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	37	 
	Section 1.04. Rules of Construction
	 	 	38	 
	 
	 	 	 	 
	ARTICLE TWO

THE NOTES

	 
	 	 	 	 
	Section 2.01. Form and Dating
	 	 	38	 
	Section 2.02. Execution and Authentication
	 	 	39	 
	Section 2.03. Methods of Receiving Payments on the Notes
	 	 	40	 
	Section 2.04. Registrar and Paying Agent
	 	 	40	 
	Section 2.05. Paying Agent to Hold Money in Trust
	 	 	41	 
	Section 2.06. Holder Lists
	 	 	41	 
	Section 2.07. Transfer and Exchange
	 	 	41	 
	Section 2.08. Replacement Notes
	 	 	54	 
	Section 2.09. Outstanding Notes
	 	 	54	 
	Section 2.10. Treasury Notes
	 	 	54	 
	Section 2.11. Temporary Notes
	 	 	55	 
	Section 2.12. Cancellation
	 	 	55	 
	Section 2.13. Defaulted Interest
	 	 	55	 
	Section 2.14. CUSIP Numbers
	 	 	55	 
	 
	 	 	 	 
	ARTICLE THREE

REDEMPTION AND OFFERS TO

PURCHASE

	 
	 	 	 	 
	Section 3.01. Notices to Trustee
	 	 	56	 
	Section 3.02. Selection of Notes to Be Redeemed
	 	 	56	 
	Section 3.03. Notice of Redemption
	 	 	56	 
	Section 3.04. Effect of Notice of Redemption
	 	 	57	 
	Section 3.05. Deposit of Redemption Price
	 	 	57	 
	Section 3.06. Notes Redeemed in Part
	 	 	58	 
	Section 3.07. Optional Redemption
	 	 	58	 
	Section 3.08. Repurchase Offers
	 	 	59	 
	Section 3.09. Application of Trust Money
	 	 	61	 






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	 	 	Page
	 
	 	 	 	 
	ARTICLE FOUR

COVENANTS

	 
	 	 	 	 
	Section 4.01. Payment of Notes
	 	 	61	 
	Section 4.02. Maintenance of Office or Agency
	 	 	61	 
	Section 4.03. Reports
	 	 	62	 
	Section 4.04. Compliance Certificate
	 	 	63	 
	Section 4.05. Taxes
	 	 	64	 
	Section 4.06. Stay, Extension and Usury Laws
	 	 	64	 
	Section 4.07. Restricted Payments
	 	 	64	 
	Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
	 	 	67	 
	Section 4.09. Incurrence of Indebtedness
	 	 	69	 
	Section 4.10. Asset Sales
	 	 	72	 
	Section 4.11. Transactions with Affiliates
	 	 	75	 
	Section 4.12. Liens
	 	 	77	 
	Section 4.13. Business Activities
	 	 	78	 
	Section 4.14. Offer to Repurchase upon a Change of Control
	 	 	78	 
	Section 4.15. [INTENTIONALLY OMITTED]
	 	 	79	 
	Section 4.16. Designation of Restricted and Unrestricted Subsidiaries
	 	 	79	 
	Section 4.17. Payments for Consent
	 	 	80	 
	Section 4.18. Guarantees
	 	 	81	 
	 
	 	 	 	 
	ARTICLE FIVE

SUCCESSORS

	 
	 	 	 	 
	Section 5.01. Merger, Consolidation or Sale of Assets
	 	 	81	 
	Section 5.02. Successor Corporation Substituted
	 	 	82	 
	 
	 	 	 	 
	ARTICLE SIX

DEFAULTS AND REMEDIES

	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	83	 
	Section 6.02. Acceleration
	 	 	85	 
	Section 6.03. Other Remedies
	 	 	85	 
	Section 6.04. Waiver of Past Defaults
	 	 	85	 
	Section 6.05. Control by Majority
	 	 	86	 
	Section 6.06. Limitation on Suits
	 	 	86	 
	Section 6.07. Rights of Holders of Notes to Receive Payment
	 	 	87	 
	Section 6.08. Collection Suit by Trustee
	 	 	87	 
	Section 6.09. Trustee May File Proofs of Claim
	 	 	87	 
	Section 6.10. Priorities
	 	 	88	 
	Section 6.11. Undertaking for Costs
	 	 	88	 
	 
	 	 	 	 
	ARTICLE SEVEN

TRUSTEE

	 
	 	 	 	 
	Section 7.01. Duties of Trustee
	 	 	89	 






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	 	 	Page
	Section 7.02. Certain Rights of Trustee
	 	 	90	 
	Section 7.03. Individual Rights of Trustee
	 	 	90	 
	Section 7.04. Trustee’s Disclaimer
	 	 	91	 
	Section 7.05. Notice of Defaults
	 	 	91	 
	Section 7.06. Reports by Trustee to Holders of the Notes
	 	 	91	 
	Section 7.07. Compensation and Indemnity
	 	 	91	 
	Section 7.08. Replacement of Trustee
	 	 	92	 
	Section 7.09. Successor Trustee by Merger, Etc
	 	 	93	 
	Section 7.10. Eligibility; Disqualification
	 	 	93	 
	Section 7.11. Preferential Collection of Claims Against Company
	 	 	93	 
	Section 7.12. No Representation by Trustee
	 	 	94	 
	 
	 	 	 	 
	ARTICLE EIGHT

DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 
	Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	94	 
	Section 8.02. Legal Defeasance and Discharge
	 	 	94	 
	Section 8.03. Covenant Defeasance
	 	 	95	 
	Section 8.04. Conditions to Legal or Covenant Defeasance
	 	 	95	 
	Section 8.05. Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions 
	 	 	97	 
	Section 8.06. Repayment to the Company
	 	 	97	 
	Section 8.07. Reinstatement
	 	 	97	 
	Section 8.08. Survival of Rights
	 	 	98	 
	 
	 	 	 	 
	ARTICLE NINE

AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 
	Section 9.01. Without Consent of Holders of Notes
	 	 	98	 
	Section 9.02. With Consent of Holders of Notes
	 	 	99	 
	Section 9.03. Compliance with Trust Indenture Act
	 	 	101	 
	Section 9.04. Revocation and Effect of Consents
	 	 	101	 
	Section 9.05. Notation on or Exchange of Notes
	 	 	101	 
	Section 9.06. Trustee to Sign Amendments, Etc.
	 	 	102	 
	 
	 	 	 	 
	ARTICLE TEN

COLLATERAL AND SECURITY

	 
	 	 	 	 
	Section 10.01. Equal and Ratable Sharing of Collateral by Holders of Parity Lien Debt; Senior Ranking of
	 	 	 	 
	Permitted Priority Debt
	 	 	102	 
	Section 10.02. Ranking of Parity Liens
	 	 	102	 
	Section 10.03. Relative Rights
	 	 	103	 
	Section 10.04. Security Documents
	 	 	103	 
	Section 10.05. Additional Collateral; Acquisition of Assets or Property
	 	 	104	 
	Section 10.06. Recording and Opinions
	 	 	105	 
	Section 10.07. Release of Collateral
	 	 	105	 
	Section 10.08. Certificates of the Trustee
	 	 	106	 






iii









 






	 	 	 	 	 
	 	 	Page
	Section 10.09. Disposition of Collateral Without Release
	 	 	106	 
	Section 10.10. Authorization of Actions to Be Taken by the Trustee Under the
Security Documents
	 	 	107	 
	Section 10.11. Authorization of Receipt of Funds by the Trustee under the
Security Agreement
	 	 	108	 
	Section 10.12. Lien Sharing and Priority Confirmation
	 	 	108	 
	Section 10.13. Voting
	 	 	108	 
	Section 10.14. Termination of Security Interest
	 	 	109	 
	Section 10.15. Further Assurances; Insurance
	 	 	109	 
	 
	 	 	 	 
	ARTICLE ELEVEN

NOTE GUARANTEES

	 
	 	 	 	 
	Section 11.01. Guarantee
	 	 	110	 
	Section 11.02. Limitation on Guarantor Liability
	 	 	111	 
	Section 11.03. Execution and Delivery of Note Guarantee
	 	 	111	 
	Section 11.04. Guarantors May Consolidate, Etc., on Certain Terms
	 	 	112	 
	Section 11.05. Release of a Subsidiary Guarantor
	 	 	112	 
	 
	 	 	 	 
	ARTICLE TWELVE

SATISFACTION AND DISCHARGE

	 
	 	 	 	 
	Section 12.01. Satisfaction and Discharge
	 	 	113	 
	Section 12.02. Deposited Money and Government
Securities to Be Held in Trust; Other
Miscellaneous Provisions
	 	 	114	 
	Section 12.03. Repayment to the Company
	 	 	114	 
	Section 12.04. Survival
	 	 	115	 
	 
	 	 	 	 
	ARTICLE THIRTEEN

MISCELLANEOUS

	 
	 	 	 	 
	Section 13.01. Trust Indenture Act Controls
	 	 	115	 
	Section 13.02. Notices
	 	 	115	 
	Section 13.03. Communication by Holders of Notes with Other Holders of Notes
	 	 	116	 
	Section 13.04. Certificate and Opinion as to Conditions Precedent
	 	 	116	 
	Section 13.05. Statements Required in Certificate or Opinion
	 	 	116	 
	Section 13.06. Rules by Trustee and Agents
	 	 	117	 
	Section 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	117	 
	Section 13.08. Governing Law
	 	 	117	 
	Section 13.09. Consent to Jurisdiction
	 	 	117	 
	Section 13.10. No Adverse Interpretation of Other Agreements
	 	 	118	 
	Section 13.11. Successors
	 	 	118	 
	Section 13.12. Severability
	 	 	118	 
	Section 13.13. Counterpart Originals
	 	 	118	 
	Section 13.14. Acts of Holders
	 	 	118	 
	Section 13.15. Benefit of Indenture
	 	 	119	 
	Section 13.16. Table of Contents, Headings, Etc.
	 	 	120	 






iv









 






	 	 	 	 	 
	 	 	Page
	Section 13.17. Payment Date Other Than a Business Day
	 	 	120	 






EXHIBITS




	 	 	 
	Exhibit A

	 	FORM OF NOTE
	 
	 	 
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	 
	 	 
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	 
	 	 
	Exhibit D

	 	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
	 
	 	 
	Exhibit E

	 	FORM OF NOTATION OF GUARANTEE
	 
	 	 
	Exhibit F

	 	FORM OF SUPPLEMENTAL INDENTURE
	 
	 	 
	Exhibit G

	 	SECURITY AGREEMENT
	 
	 	 
	Exhibit H

	 	COLLATERAL TRUST AGREEMENT






v









 





     INDENTURE dated as of June 5, 2009 among Cricket Communications, Inc., a Delaware corporation
(the “Company”), the Initial Guarantors (as defined below) listed on the signature pages hereto and
Wilmington Trust FSB, as trustee.



     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its 7.75% Senior Secured Notes due 2016 to be issued in one or
more series as provided in this Indenture. The Initial Guarantors have duly authorized the
execution and delivery of this Indenture to provide for a guarantee of the Notes and of certain of
the Company’s obligations hereunder. All things necessary to make this Indenture a valid agreement
of the Company and the Initial Guarantors, in accordance with its terms, have been done.



     The Company, the Guarantors and the Trustee (as defined below) agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders (as defined below) of
the 7.75% Senior Secured Notes due 2016:



ARTICLE ONE

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, the OID 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 issued in a
denomination equal to the outstanding principal amount at maturity of the Notes sold in reliance on
Rule 144A.



     “Acquired Indebtedness” means Indebtedness of a Person existing at the time such Person
becomes a Restricted Subsidiary or merges with or into the Parent or any of its Restricted
Subsidiaries or which is assumed by the Parent or any of its Restricted Subsidiaries in connection
with an Asset Acquisition whether or not incurred in connection with, or in anticipation of, such
Person becoming a Restricted Subsidiary or such Asset Acquisition. The term “Acquired
Indebtedness” does not include Indebtedness of a Person which is redeemed, defeased, retired or
otherwise repaid at the time of or immediately upon consummation of the transactions by which such
Person becomes a Restricted Subsidiary or such Asset Acquisition.



     “Additional Interest” means all additional interest owing on the Notes pursuant to the
Registration Rights Agreement.



     “Additional Notes” means an unlimited maximum aggregate principal amount of Notes (other than
the Notes issued on the date hereof) issued under this Indenture in accordance with Sections 2.02,
4.09 and 4.12 hereof.



     “Affiliate” of any specified Person means (1) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such
specified Person, (2) any executive officer or director of such specified Person or (3) any
Designated Entity. 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. For purposes of this definition, the terms “controlling,” “controlled by”
and “under common control with” shall have correlative meanings.



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



     “Applicable Pari Passu Indebtedness” means:



     (1) with respect to any asset that is the subject of an Asset Sale at a time when such asset
is included in the Collateral, Parity Lien Debt (other than the Notes) and Permitted Priority Debt;
and



     (2) with respect to any other asset, unsubordinated Indebtedness of the Company or a Guarantor
that is required to be repaid (or that under the terms thereof is required to be offered to be
repaid) upon a sale of such asset.



     “Applicable Premium” means, with respect to a Note at any date of redemption, the greater of
(i) 1.0% of the principal amount of such Note and (ii) the excess of (A) the present value at such
date of redemption of (1) the redemption price of such Note at May 15, 2012 (such redemption price
being described herein at Section 3.07) plus (2) all remaining required interest payments due on
such Note through May 15, 2012 (excluding accrued but unpaid interest to the date of redemption),
computed using a discount rate equal to the Treasury Rate plus 50 basis points, over (B) the
principal amount of such Note.



     “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 Parent or any of its Restricted Subsidiaries in any other Person
pursuant to which such Person shall become a Restricted Subsidiary or shall be merged into or
consolidated with the Parent or any of its Restricted Subsidiaries but only if such Person’s
primary business is a Permitted Business,



     (2) an acquisition by the Parent or any of its Restricted Subsidiaries of the property and
assets of any Person other than the Parent or any of its Restricted Subsidiaries that constitute
all or substantially all of a division, operating unit or line of business of such Person but only
if the property and assets so acquired is a Permitted Business,



     (3) an Investment by a Designated Entity in any other Person pursuant to which such Person
shall (a) become a Subsidiary of such Designated Entity or (b) be merged into or consolidated with
such Designated Entity, but, in the case of (a) or (b), only if such Person’s primary business is a
Permitted Business, or



     (4) an acquisition by a Designated Entity of the property and assets of any Person other than
the Parent, any of its Restricted Subsidiaries or any other Designated Entity



2









 







that constitute all
or substantially all of a division, operating unit or line of business of such Person but only if
the property and assets so acquired is a Permitted Business.



     “Asset Disposition” means the sale or other disposition by:



     (1) the Parent or any of its Restricted Subsidiaries other than to the Parent or another
Restricted Subsidiary of (a) all or substantially all of the Capital Stock of any Restricted
Subsidiary or any Designated Entity or (b) all or substantially all of the assets that constitute a
division, operating unit or line of business of the Parent or any of its Restricted Subsidiaries,
or



     (2) a Designated Entity other than to the Parent, any of its Restricted Subsidiaries or any
other Designated Entity of (a) all or substantially all of the Capital Stock of a Subsidiary of
such Designated Entity or (b) all or substantially all of the assets that constitute a division,
operating unit or line of business of such Designated Entity.



     “Asset Sale” means:



     (1) the sale, lease, conveyance or other disposition of any assets, other than a transaction
governed by Sections 4.14 and/or Section 5.01 of this Indenture; and



     (2) (a) the issuance of Equity Interests by any of the Parent’s Restricted Subsidiaries or (b)
the sale by the Parent or any Restricted Subsidiary thereof of any Equity Interests it owns in any
of its Subsidiaries (other than directors’ qualifying shares and shares issued to foreign nationals
to the extent required by applicable law) or Designated Entities.



     Notwithstanding the preceding, the following items shall be deemed not to be Asset Sales:



     (1) any single transaction or series of related transactions that involves assets or Equity
Interests having a Fair Market Value of less than $10.0 million;



     (2) a transfer of assets or Equity Interests between or among the Parent, the Company and the
Subsidiary Guarantors;



     (3) an issuance of Equity Interests by the Company to the Parent;



     (4) an issuance of Equity Interests by a Subsidiary Guarantor to the Parent, the Company or
another Subsidiary Guarantor;



     (5) the sale, lease, sublease, license, sublicense, consignment, conveyance or other
disposition of equipment, inventory, accounts receivable or other assets in the ordinary course of
business or to any Designated Entity or Joint Venture Entity in compliance with Section 4.11
hereof;



     (6) the sale or other disposition of Cash Equivalents;



3









 





     (7) dispositions of accounts receivable in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;



     (8) a Restricted Payment that is permitted by Section 4.07 and any Permitted Investment;



     (9) any sale, lease, conveyance or other disposition of any property or equipment that has
become damaged, worn out or obsolete;



     (10) the creation of a Lien not prohibited by this Indenture or the Security Documents;



     (11) the licensing of intellectual property or other general intangibles (other than FCC
Licenses) to third persons on terms approved by the Board of Directors of the Parent or the Company
in good faith and in the ordinary course of business;



     (12) any sale, lease, conveyance or other disposition of assets by a Restricted Subsidiary of
the Parent that is not a Subsidiary Guarantor to the Parent or to another Restricted Subsidiary of
the Parent; and



     (13) an issuance of Equity Interests by a Restricted Subsidiary of the Parent that is not a
Subsidiary Guarantor to the Parent or to another Restricted Subsidiary of the Parent; provided that
this clause (13) shall not apply to issuances of any Equity Interests to any Restricted Subsidiary
that is not a Subsidiary Guarantor to the extent such Equity Interests are Collateral.



     “Attributable Debt” in respect of a Sale and Leaseback Transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such Sale and Leaseback Transaction, including any period
for which such lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of interest implicit in
such transaction, determined in accordance with GAAP.



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



     “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall 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 upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” shall have a corresponding meaning.



     “Board of Directors” means:




4











 






     (1) with respect to a corporation, the board of directors of the corporation or, except
in the context of the definitions of “Change of Control,” a duly authorized committee
thereof;




     (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 or board of directors of such company or of the sole member or of the
managing member thereof; and




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



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




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




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




          “Capital Lease Obligation” means, at the time any determination thereof is to be made, the
amount of the liability in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet 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 or
membership interests (whether general or limited); 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.



          “Cash Equivalents” means:





     (1) United States dollars;



5









 






     (2) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in support thereof), having
maturities of not more than two years from the date of acquisition thereof;




     (3) demand deposits, certificates of deposit and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding one year and overnight bank deposits, in each case, with any
domestic commercial bank having capital and surplus in excess of $500.0 million and a rating
at the time of acquisition thereof of P-1 or better from Moody’s or A-1 or better from S&P;




     (4) commercial paper outstanding at any time issued by any Person organized under the
laws of any state of the United States of America and rated at the time of acquisition
thereof P-1 or better from Moody’s or A-1 or better from S&P and in each case with
maturities of not more than 270 days from the date of acquisition thereof;




     (5) securities with final maturities of not more than two years from the date of
acquisition thereof issued or fully guaranteed by any state, territory or municipality of
the United States of America or by any political subdivision, taxing authority, agency or
instrumentality thereof and rated at least A by S&P or A by Moody’s;




     (6) insured demand deposits made in the ordinary course of business and consistent with
the Parent’s or its Subsidiaries’ customary cash management policy in any domestic office of
any commercial bank organized under the laws of the United States of America or any state
thereof;




     (7) repurchase obligations with a term of not more than 90 days for underlying
securities of the types described in clauses (2), (3) and (4) above entered into with any
financial institution meeting the qualifications specified in clause (3) above; and




     (8) investments, classified in accordance with GAAP as current assets of the Parent or
any of its Restricted Subsidiaries, in money market funds or investment programs registered
under the Investment Company Act of 1940, the portfolios of which are limited solely to
Investments of the character, quality and maturity described in clauses (2) through (7) of
this definition.



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





     (1) the direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Parent and its Restricted Subsidiaries,
taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange
Act);




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



6









 






     (3) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding any employee benefit plan of such “person” or its Subsidiaries,
and any Person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the Beneficial Owner, directly or indirectly, of 35%
or more of the Voting Stock of the Parent on a fully-diluted basis (and taking into account
all such securities that such “person” or “group” has the right to acquire pursuant to any
option right to the extent that such option right is exercisable within 60 days after the
date of determination), other than any transaction where immediately after such transaction
the Parent will be a wholly owned Subsidiary of a Person, where no “person” or “group” (as
such terms are used in Section 13(d) and 14(d) of the Exchange Act) is, directly or
indirectly, the Beneficial Owner of 35% or more of the voting power of the Voting Stock of
such Person;




     (4) during any period of 12 consecutive months, a majority of the members of the Board
of Directors or other equivalent governing body of the Company or the Parent cease to be
composed of individuals (i) who were members of the Board of Directors or equivalent
governing body on the first day of such period, (ii) whose election or nomination to that
Board of Directors or equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or nomination at least a majority
of that Board of Directors or equivalent governing body, (iii) whose election or nomination
to that Board of Directors or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that Board of Directors or equivalent governing body or
(iv) in the case of the Company, whose election or nomination to that Board of Directors or
equivalent governing body was approved by the Parent (excluding, in the case of both clause
(ii) and clause (iii), any individual whose initial nomination for, or assumption of office
as, a member of that Board of Directors or equivalent governing body occurs as a result of
an actual or threatened solicitation of proxies or consents for the election or removal of
one or more directors by any “person” or “group” other than a solicitation for the election
of one or more directors by or on behalf of the Board of Directors);




     (5) the Company or the Parent consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into the Company or the Parent, in any such
event pursuant to a transaction in which any of the outstanding Voting Stock of the Company
or the Parent is converted into or exchanged for cash, securities or other property, other
than any such transaction where, immediately after such transaction (i) no “person” or
“group” (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) becomes,
directly or indirectly, the Beneficial Owner of 35% or more of the voting power of the
Voting Stock of the surviving or transferee Person, or (ii) the Company or the Parent will
be a wholly owned Subsidiary of a Person, where no “person” or “group” (as such terms are
used in Section 13(d) and 14(d) of the Exchange Act) is, directly or indirectly, the
Beneficial Owner of 35% or more of the voting power of the Voting Stock of such Person; or




     (6) the Parent ceases to own 100% of the Equity Interests of the Company (unless the
Parent and the Company are merged).



7









 





          “Class” means (1) in the case of Parity Lien Debt, every Series of Parity Lien Debt, taken
together, and (2) in the case of Junior Lien Debt, every Series of Junior Lien Debt, taken
together.




          “Clearstream” means Clearstream Banking, société anonyme, Luxembourg (formerly Cedel Bank,
société anonyme), and any successor thereto.




          “Closing Date” means June 5, 2009.




          “Collateral” means all assets or property, now owned or hereafter acquired by the Parent, the
Company or any of the Subsidiary Guarantors, to the extent such assets or property are pledged or
assigned or purported to be pledged or assigned, or are required to be pledged or assigned under
the Security Documents to the Collateral Trustee, together with the proceeds and products thereof.




          “Collateral Trust Agreement” means the Collateral Trust Agreement entered into by the Company,
the Initial Guarantors, the Trustee and the Collateral Trustee on the Issue Date in substantially
the form attached hereto as Exhibit H.




          “Collateral Trustee” means Wilmington Trust FSB, in its capacity as Collateral Trustee under
the Collateral Trust Agreement, together with its successors in such capacity.




          “Common Stock” means, with respect to any Person, any Capital Stock (other than Preferred
Stock) of such Person, whether outstanding on the Issue Date or issued thereafter.




          “Company” means Cricket Communications, Inc. until a successor replaces it pursuant to
Section 5.01 hereof and thereafter means the successor.




          “Consolidated Cash Flow” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus:





     (1) provision for taxes based on income or profits of such Person, its Restricted
Subsidiaries and its Designated Entities for such period, to the extent that such provision
for taxes was deducted in computing such Consolidated Net Income; plus




     (2) Fixed Charges of such Person, its Restricted Subsidiaries and its Designated
Entities for such period, to the extent that any such Fixed Charges were deducted in
computing such Consolidated Net Income; plus




     (3) depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it represents an accrual of
or reserve for cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person, its Restricted Subsidiaries and its
Designated Entities for such period to the extent that such depreciation, amortization and
other non-cash expenses were deducted in computing such Consolidated Net Income, such other
non-cash expenses to include, without limitation,



8









 







impairment charges associated with goodwill, wireless licenses, other indefinite-lived
assets and long-lived assets, and stock-based compensation awards; plus




     (4) the amount of any Restructuring Charges or reasonable expenses or charges related
to any proposed or consummated Equity Offering, Investment, acquisition, recapitalization or
Incurrence of Indebtedness permitted to be incurred under the Indenture, in each case,
deducted in computing such Consolidated Net Income; minus




     (5) non-cash items increasing such Consolidated Net Income for such period, other than
the accrual of revenue consistent with past practice;




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



          Notwithstanding the preceding, the provision for taxes based on the income or profits of, the
Fixed Charges of and the depreciation and amortization and other non-cash expenses of, a Restricted
Subsidiary of the Parent or a Designated Entity shall be added to Consolidated Net Income to
compute Consolidated Cash Flow of the Parent (A) in the same proportion that the Net Income of such
Restricted Subsidiary or such Designated Entity was added to compute such Consolidated Net Income
of the Parent and (B) only to the extent that a corresponding amount would be permitted at the date
of determination to be dividended or distributed to the Parent by such Restricted Subsidiary or
such Designated Entity without prior governmental approval (that has not been obtained), and
without direct or indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to
that Subsidiary or its stockholders, or such Designated Entity or holders of its Capital Stock, as
applicable (other than restrictions on dividends or distributions in respect of Existing Designated
Entities that are contained in agreements or instruments existing on the Issue Date and any
amendment, restatement, modification, renewal, refunding, replacement or refinancing thereof,
provided that such corresponding restrictions on dividends or distributions, as the case may be,
included therein are no more restrictive than the applicable restrictions on dividends or
distributions in the agreement or instrument being amended, restated, modified, renewed, refunded,
replaced or refinanced).




          “Consolidated Leverage Ratio” means on any Transaction Date, the ratio of:





     (1) the aggregate amount of Indebtedness of the Parent, its Restricted Subsidiaries and
its Designated Entities on a consolidated basis outstanding on such Transaction Date, to




     (2) the aggregate amount of Consolidated Cash Flow of the Parent, its Restricted
Subsidiaries and its Designated Entities for the Four Quarter Period.



          In determining the Consolidated Leverage Ratio:





     (1) pro forma effect shall be given to any Indebtedness that is to be incurred or
repaid on the Transaction Date;




     (2) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any



9









 







Asset Disposition) that occur during the Reference Period as if they had occurred and
such proceeds had been applied on the first day of such Reference Period; and




     (3) pro forma effect shall be given to asset dispositions and asset acquisitions
(including giving pro forma effect to the application of proceeds of any asset disposition)
that have been made by any Person that has become a Restricted Subsidiary of the Parent or a
Designated Entity or has been merged with or into the Parent, any Restricted Subsidiary or
any Designated Entity during such Reference Period and that would have constituted Asset
Dispositions or Asset Acquisitions had such transactions occurred when such Person was a
Restricted Subsidiary or a Designated Entity, as the case may be, as if such asset
dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that
occurred on the first day of such Reference Period.



          To the extent that pro forma effect is given to an Asset Acquisition or Asset Disposition,
such pro forma calculation shall be based upon the four full fiscal quarters immediately preceding
the Transaction Date of the Person, or division, operating unit or line of business of the Person,
that is acquired or disposed of for which financial information is available, and Consolidated Cash
Flow shall be calculated on a pro forma basis in accordance with Regulation S-X under the
Securities Act, but without giving effect to clause (3) of the proviso set forth in the definition
of Consolidated Net Income.




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





     (1) the Net Income of any Person that is not a Restricted Subsidiary or a Designated
Entity or that is accounted for by the equity method of accounting shall be included only to
the extent of the amount of dividends or distributions paid in cash to the specified Person
or a Restricted Subsidiary thereof;




     (2) the Net Income of any Restricted Subsidiary or any Designated Entity shall be
excluded to the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary or that Designated Entity, as applicable, of that Net Income
is not at the date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its equityholders, or such Designated
Entity or holders of its Capital Stock, as applicable (other than restrictions on dividends
or distributions in respect of Existing Designated Entities that are contained in agreements
or instruments existing on the Issue Date and any amendment, restatement, modification,
renewal, refunding, replacement or refinancing thereof, provided that such corresponding
restrictions on dividends or distributions, as the case may be, included therein are no more
restrictive than the applicable restrictions on dividends or distributions in the agreement
or instrument being amended, restated, modified, renewed, refunded, replaced or refinanced);



10









 






     (3) the Net Income of any Person acquired during the specified period for any period
prior to the date of such acquisition shall be excluded;




     (4) the cumulative effect of a change in accounting principles shall be excluded; and




     (5) notwithstanding clause (1) above, the Net Income or loss of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the specified Person or one of
its Subsidiaries.



          “Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in
Section 13.02 hereof or such other address as to which the Trustee may give notice to the Company.




          “Credit Facilities” means, one or more debt facilities, commercial paper facilities or
indentures, in each case with banks or other institutional lenders or a trustee, providing for
revolving credit loans, term 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), letters of credit or issuances of notes, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to
time.




          “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 2.07 hereof, substantially in the form of Exhibit A hereto, and
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 2.04 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 Entity” means a Person that is designated as a “Designated Entity” by the Board of
Directors of the Parent pursuant to a Board Resolution; provided that (i) at the time of the making
of the initial investment by the Parent or any of its Restricted Subsidiaries in such Person, such
Person (A) holds or is intended to hold, whether directly or indirectly through one or more
subsidiaries, one or more FCC Licenses as, or is eligible to participate in an FCC auction or
auctions for FCC Licenses and/or purchase of FCC Licenses or spectrum in an after-market therefor,
from time to time as, a “Designated Entity,” “Entrepreneur,” “Small Business,” or “Very Small
Business,” as those terms are defined under FCC rules and regulations as in effect at the time of
such initial investment in such Person or (B) is a wholly owned Subsidiary of a Person meeting the
requirements of subclause (A) above; (ii) the Parent and its Restricted




11









 







Subsidiaries own a majority (but less than 100%) of the equity interests of such Person (or in
the case of a Person referred to in subclause (i)(B), the Person referred to in subclause (i)(A) of
which such Person is a wholly owned Subsidiary); (iii) the accounts of such Person are consolidated
with those of the Parent and its Subsidiaries in accordance with GAAP; and (iv) such Person’s
primary business is a Permitted Business.




          “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 thereof), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is one year after the date on which the
Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require the Parent to
repurchase such Capital Stock upon the occurrence of a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that the Parent may not
repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07. The term “Disqualified Stock” shall also include any
options, warrants or other rights that are convertible into Disqualified Stock or that are
redeemable at the option of the holder, or required to be redeemed, prior to the date that is one
year after the date on which the Notes mature.




          “Domestic Restricted Subsidiary” means any Restricted Subsidiary of the Parent other than a
Subsidiary that is:





     (1) a “controlled foreign corporation” under Section 957 of the Internal Revenue Code,
or




     (2) a Subsidiary of such controlled foreign corporation.



          “equally and ratably” means, in reference to sharing of Liens or proceeds thereof as between
holders of Secured Debt Obligations within the same Class after payment of amounts payable to the
Collateral Trustee under the Collateral Trust Agreement and the Parity Lien Representatives in
accordance with the applicable Secured Debt Document, that such Liens or proceeds:





     (1) will be allocated and distributed first to the Secured Debt Representative for each
outstanding Series of Secured Debt within that Class, for the account of the holders of such
Series of Secured Debt, ratably in proportion to the principal of, and interest and premium
(if any) and reimbursement obligations (contingent or otherwise) with respect to letters of
credit, if any, outstanding (whether or not drawings have been made under such letters of
credit) forming part of, and Hedging Obligations to the extent constituting Secured Debt
pursuant to the terms of, each outstanding Series of Secured Debt within that Class when the
allocation or distribution is made; and thereafter




     (2) will be allocated and distributed (if any remain after payment in full of all of
the principal of, and interest and premium (if any) and reimbursement obligations
(contingent or otherwise) with respect to letters of credit, if any, outstanding (whether or



12









 







not drawings have been made on such letters of credit) forming part of, and Hedging
Obligations to the extent constituting Secured Debt pursuant to the terms of, each
outstanding Series of Secured Debt within that Class) to the Secured Debt Representative for
each outstanding Series of Secured Debt within that Class, for the account of the holders of
any remaining Secured Debt Obligations within that Class, ratably in proportion to the
aggregate unpaid amount of such remaining Secured Debt Obligations within that Class due and
demanded (with written notice to the applicable Secured Debt Representative and the
Collateral Trustee) prior to the date such 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).




          “Equity Offering” means any public or private placement of Capital Stock (other than
Disqualified Stock) of the Parent (other than pursuant to a registration statement on Form S-8 or
otherwise relating to equity securities issuable under any employee benefit plan of the Parent) to
any Person other than any Subsidiary thereof.




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




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




          “Exchange Notes” means the Notes issued in the Registered Exchange Offer in accordance with
Section 2.07(f) hereof.




          “Exchange Offer Registration Statement” has the meaning set forth in the Registration Rights
Agreement.




          “Existing Designated Entity” means each of LCW Wireless, LLC and Denali Spectrum, LLC and each
of their respective Subsidiaries.




          “Existing Indebtedness” means the aggregate amount of Indebtedness of the Parent and its
Restricted Subsidiaries (other than Indebtedness under the Notes and the related Note Guarantees)
in existence on the Issue Date after giving effect to the application of the proceeds of the Notes,
until such amounts are repaid.




          “Fair Market Value” means the price that would be paid in an arm’s-length transaction between
an informed and willing seller under no compulsion to sell and an informed and willing buyer under
no compulsion to buy, as determined in good faith by an Officer of the Parent or by the Board of
Directors of the Parent, evidenced by an Officers’ Certificate or Board Resolution, as applicable.




          “FCC” means the Federal Communications Commission (or any federal agency that may succeed to
its jurisdiction).




          “FCC Licenses” means broadband personal communications service licenses, advanced wireless
services licenses or other licenses, permits or authorizations for the provision




13









 







of wireless telecommunications services or operation of wireless telecommunications systems
issued by the FCC from time to time.




          “Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication, of:





     (1) the consolidated interest expense of such Person, its Restricted Subsidiaries and
its Designated Entities for such period, whether paid or accrued, including, without
limitation, amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers’ acceptance financings, and net of the effect of all
payments made or received pursuant to Hedging Obligations; plus




     (2) the consolidated interest of such Person, its Restricted Subsidiaries and its
Designated Entities that was capitalized during such period; plus




     (3) any interest expense on Indebtedness of another Person that is Guaranteed by such
Person, any of its Restricted Subsidiaries or any of its Designated Entities or secured by a
Lien on assets of such Person, any of its Restricted Subsidiaries or any of its Designated
Entities whether or not such Guarantee or Lien is called upon; plus




     (4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock of such Person or Disqualified Stock or Preferred
Stock of any of its Restricted Subsidiaries or any of its Designated Entities other than
dividends on Equity Interests payable solely in Equity Interests (other than Disqualified
Stock) of the Parent or to the Parent or a Restricted Subsidiary of the Parent, times (b) a
fraction, the numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person (if such Person
is part of a consolidated group, then such tax rate shall be computed on a standalone basis
for such Person), expressed as a decimal,




in each case, on a consolidated basis and in accordance with GAAP.



          “Four Quarter Period” means, with respect to any specified Transaction Date, the four fiscal
quarters immediately prior to the Transaction Date for which internal financial statements of the
Parent are available.




          “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, the opinions and pronouncements of the Public Company Accounting Oversight Board and
in the 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 were in effect on October 23, 2006.




14









 








          “Global Note Legend” means the legend set forth in Section 2.07(g)(ii), 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, substantially in the form of Exhibit A hereto, issued in accordance
with Section 2.01, 2.07(b), 2.07(d) or 2.07(f) of this Indenture.




          “Government Securities” means securities that are direct obligations of the United States of
America for the timely payment of which its full faith and credit is pledged.




          “Guarantee” means, as to any Person, 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 of another
Person.




          “Guarantors” means:





     (1) the Initial Guarantors; and




     (2) any other Subsidiary that executes a Note Guarantee in accordance with the
provisions of this Indenture;


and their respective successors and assigns until released from their obligations under their Note
Guarantees and this Indenture in accordance with the terms of this Indenture.




          “Hedging Obligations” means, with respect to any specified Person, the obligations of such
Person under:





     (1) interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and other agreements or arrangements with respect to interest rates;




     (2) commodity swap agreements, commodity option agreements, forward contracts and other
agreements or arrangements with respect to commodity prices; and




     (3) foreign exchange contracts, currency swap agreements and other agreements or
arrangements with respect to foreign currency exchange rates.



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




          “Incur” means, with respect to any Indebtedness, to incur, create, issue, assume, Guarantee or
otherwise become directly or indirectly liable for or with respect to, or become responsible for,
the payment of, contingently or otherwise, such Indebtedness (and “Incurrence” and “Incurred” shall
have meanings correlative to the foregoing); provided that (1) any Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary of the Parent or a Designated
Entity shall be deemed to be Incurred by such Restricted Subsidiary or such Designated Entity at
the time it becomes a Restricted Subsidiary of the Parent or a Designated Entity and (2) neither
the accrual of interest nor the accretion of original issue




15









 







discount nor the payment of interest in the form of additional Indebtedness with the same
terms and the payment of dividends on Disqualified Stock or Preferred Stock in the form of
additional shares of the same class of Disqualified Stock or Preferred Stock (to the extent
provided for when the Indebtedness or Disqualified Stock or Preferred Stock on which such interest
or dividend is paid was originally issued) shall be considered an Incurrence of Indebtedness;
provided that in each case the amount thereof is for all other purposes included in the Fixed
Charges and Indebtedness of the Parent, its Restricted Subsidiaries or its Designated Entities as
accrued.




          “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person,
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) in respect of Capital Lease Obligations and Attributable Debt;




     (5) in respect of the balance deferred and unpaid of the purchase price of any property
or services, except any such balance that constitutes an accrued expense or trade payable
and excluding any earnout obligation until such obligation becomes a liability on the
balance sheet of such Person in accordance with GAAP;




     (6) representing Hedging Obligations;




     (7) representing Disqualified Stock valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued dividends; or




     (8) in the case of a Subsidiary of such Person, representing Preferred Stock valued at
the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued
dividends.



          In addition, the term “Indebtedness” includes (x) 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), provided that the amount of such Indebtedness shall be the lesser of (A) the Fair Market
Value of such asset at such date of determination and (B) the amount of such Indebtedness, and (y)
to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of
any other Person. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified
Stock or Preferred Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Stock or Preferred Stock, as applicable, as if such
Disqualified Stock or Preferred Stock were repurchased on any date on which Indebtedness is
required to be determined pursuant to this Indenture.




          The amount of any Indebtedness outstanding as of any date shall be the outstanding balance at
such date of all unconditional obligations as described above and, with




16









 







respect to contingent obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation, and shall be:





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




     (2) the principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness.



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




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




          “Initial Guarantors” means the Parent and all of the Domestic Restricted Subsidiaries of the
Parent (other than the Company) existing on the Issue Date.




          “Initial Purchasers” means Goldman, Sachs & Co., Deutsche Bank Securities Inc., Citigroup
Global Markets Inc., Jefferies & Company Inc. and UBS Securities LLC.




          “insolvency or liquidation proceeding” means:





     (1) any case commenced by or against the Company or any Guarantor under Title 11, U.S.
Code, or any similar federal or state law for the relief of debtors, any other proceeding
for the reorganization, recapitalization or adjustment or marshalling of the assets or
liabilities of the Company or any Guarantor, any receivership or assignment for the benefit
of creditors relating to the Company or any Guarantor or any similar case or proceeding
relative to the Company or any Guarantor or its creditors, as such, in each case whether or
not voluntary;




     (2) any liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Company or any Guarantor, in each case whether or not voluntary and
whether or not involving bankruptcy or insolvency; or




     (3) any other proceeding of any type or nature in which substantially all claims of
creditors of the Company or any Guarantor are determined and any payment or distribution is
or may be made on account of such claims.



          “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 any intercreditor agreement entered into in connection with
the Permitted Priority Debt, if any, in substantially the form attached as Exhibit D to the
Collateral Trust Agreement, as amended, supplemented, restated, modified, renamed or replaced
(whether upon or after termination or otherwise), in whole or in part from time to time, or any
other successor agreement and whether among the same or any other parties.




17









 








          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Investment Company Act” means the Investment Company Act of 1940, as amended.




          “Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the form of loans or other extensions of credit
(including Guarantees), advances, capital contributions (by means of any transfer of cash or other
property to others or any payment for property or services for the account or use of others),
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 Parent or any Restricted Subsidiary of the Parent sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Parent such that, after
giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of
the Parent, the Parent shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of the Investment in such Subsidiary not sold or
disposed of. The acquisition by the Parent or any Restricted Subsidiary of the Parent of a Person
that holds an Investment in a third Person shall be deemed to be an Investment by the Parent or
such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the
Investment held by the acquired Person in such third Person.




          “Issue Date” means the date of original issuance of the Notes under this Indenture.




          “Joint Venture Entity” means any Person other than a Restricted Subsidiary in which the Parent
or any of its Restricted Subsidiaries has made a Permitted Investment and/or a Restricted
Investment permitted by the provisions of Section 4.07 of this Indenture, of which more than 10% of
the Capital Stock of such Person is owned, directly or indirectly, by the Parent or any of its
Restricted Subsidiaries.




          “Junior Lien” means a Lien granted by a security document to the Collateral Trustee, at any
time, upon any Collateral to secure Junior Lien Obligations.




          “Junior Lien Debt” means:





     (1) any Indebtedness (including letters of credit and reimbursement obligations with
respect thereto) of the Company or any Guarantor that is secured on a subordinated basis to
the Parity Lien Debt by a Junior Lien that was permitted to be incurred and so secured under
each applicable Secured Debt Document; provided that:




     (a) on or before the date on which such Indebtedness is incurred by the Company or
such Guarantor, such Indebtedness is designated by the Company, in accordance with the
Collateral Trust Agreement, as “Junior Lien Debt” for the purposes of the Secured Debt
Documents and the Collateral Trust Agreement;



18









 







provided that no Series of Secured Debt may be designated as both Junior Lien Debt
and Parity Lien Debt;




     (b) such Indebtedness is governed by an indenture, credit agreement or other
agreement that includes a Lien Sharing and Priority Confirmation; and




     (c) all requirements set forth in the Collateral Trust Agreement as to the
confirmation, grant or perfection of the Collateral Trustee’s Liens to secure such
Indebtedness or Obligations in respect thereof are satisfied (and the satisfaction of
such requirements will be conclusively established if the Company delivers to the
Collateral Trustee an officers’ certificate stating that such requirements have been
satisfied and that such Indebtedness is “Junior Lien Debt”); and




     (2) Hedging Obligations of the Company or any Guarantor incurred to hedge or manage
interest rate risk with respect to Junior Lien Debt; provided that, pursuant to the terms of
the Junior Lien Documents, such Hedging Obligations are secured by a Junior Lien on all of
the assets and properties that secure the Indebtedness in respect of which such Hedging
Obligations are incurred.



          “Junior Lien Documents” means, collectively, any indenture, credit agreement or other
agreement governing a Series of Junior Lien Debt and the security documents that create or perfect
Liens securing Junior Lien Obligations.




          “Junior Lien Obligations” means Junior Lien Debt and all other Obligations in respect thereof.




          “Junior Lien Representative” means, in the case of any future Series of Junior Lien Debt, the
trustee, agent or representative of the holders of such Series of Junior Lien Debt who (a) is
appointed as a Junior Lien Representative (for purposes related to the administration of the
security documents) pursuant to the indenture, credit agreement or other agreement governing such
Series of Junior Lien Debt, together with its successors in such capacity, and (b) has become a
party to the Collateral Trust Agreement by executing a joinder in the form required under the
Collateral Trust Agreement.




          “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in The City
of New York or at a place of payment are authorized or required by law, regulation or executive
order to remain closed.




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




          “Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent
to all Holders of the Notes for use by such Holders in connection with the Registered Exchange
Offer.




19









 








          “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 such asset and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction.




          “Lien Sharing and Priority Confirmation” means:





     (1) as to any Series of Parity Lien Debt, the written agreement of the holders of such
Series of Parity Lien Debt, as set forth in the applicable Secured Debt Document:




     (a) for the enforceable benefit of all holders of each existing and future
Series of Parity Lien Debt and each existing and future Parity Lien Representative
that all Parity Lien Obligations will be and are secured equally and ratably by all
Parity Liens at any time granted by the Company or any Guarantor to secure any
Obligations in respect of such Series of Parity Lien Debt, and that all such Parity
Liens will be enforceable by the Collateral Trustee for the benefit of all holders
of Parity Lien Obligations equally and ratably;




     (b) for the enforceable benefit of all holders of each existing and future
Series of Parity Lien Debt and Series of Junior Lien Debt, and each existing and
future Parity Lien Representative and Junior Lien Representative, that the holders
of Obligations in respect of such Series of Parity Lien Debt are bound by the
provisions of the Collateral Trust Agreement, including the provisions relating to
the ranking of Parity Liens and the order of application of proceeds from
enforcement of Parity Liens;




     (c) for the enforceable benefit of all holders of each existing and future
Series of Permitted Priority Debt and Series of Parity Lien Debt and each existing
and future Permitted Priority Lien Representative and Parity Lien Representative,
that the holders of Obligations in respect of such Series of Parity Lien Debt are
bound by the provisions of the Intercreditor Agreement (whether then in existence or
thereafter entered into), including the provisions relating to the ranking of Liens
and the order of application of proceeds from the enforcement of Liens as set forth
therein; and




     (d) consenting to and directing the Collateral Trustee to perform its
obligations under the Collateral Trust Agreement and the other security documents in
respect of the Secured Debt Obligations (including the Intercreditor Agreement),




     (2) as to any Series of Junior Lien Debt, the written agreement of the holders of such
Series of Junior Lien Debt, as set forth in the applicable Secured Debt Document:




     (a) for the enforceable benefit of all holders of each existing and future
Series of Junior Lien Debt and Series of Parity Lien Debt and each existing and
future Junior Lien Representative and Parity Lien Representative, that all Junior



20









 







Lien Obligations will be and are secured equally and ratably by all Junior
Liens at any time granted by the Company or any Guarantor to secure any Obligations
in respect of such Series of Junior Lien Debt, and that all such Junior Liens will
be enforceable by the Collateral Trustee for the benefit of all holders of Junior
Lien Obligations equally and ratably;




     (b) for the enforceable benefit of all holders of each existing and future
Series of Parity Lien Debt and Series of Junior Lien Debt and each existing and
future Parity Lien Representative and Junior Lien Representative, that the holders
of Obligations in respect of such Series of Junior Lien Debt are bound by the
provisions of the Collateral Trust Agreement, including the provisions relating to
the ranking of Junior Liens and the order of application of proceeds from the
enforcement of Junior Liens;




     (c) for the enforceable benefit of all holders of each existing and future
Series of Junior Lien Debt, Series of Parity Lien Debt and Series of Permitted
Priority Debt and each existing and future Junior Lien Representative, Parity Lien
Representative and Permitted Priority Lien Representative, that the holders of
Obligations in respect of such Series of Junior Lien Debt are bound by the
provisions of the Intercreditor Agreement (whether then in existence or thereafter
entered into), including the provisions relating to the ranking of Liens and the
order of application of proceeds from the enforcement of Liens as set forth therein;
and




     (d) consenting to and directing the Collateral Trustee to perform its
obligations under the Collateral Trust Agreement and the other security documents in
respect of the Secured Debt Obligations (including the Intercreditor Agreement).



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




          “Net Income” means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends, excluding, however:





     (1) any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with: (a) any sale of assets outside the ordinary course of
business of such Person; or (b) the disposition of any securities by such Person, any of its
Restricted Subsidiaries or any of its Designated Entities or the extinguishment of any
Indebtedness of such Person, any of its Restricted Subsidiaries or any of its Designated
Entities; and




     (2) any extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss.



          “Net Proceeds” means the aggregate cash proceeds, including payments in respect of deferred
payment obligations (to the extent corresponding to the principal, but not the interest component,
thereof) received by the Parent or any of its Restricted Subsidiaries in




21









 







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, investment
banking and brokerage fees, and sales commissions, and any relocation expenses incurred as a result
thereof, (2) taxes paid or payable as a result thereof, in each case, after taking into account any
available tax credits or deductions and any tax sharing arrangements, (3) amounts required to be
applied to the repayment of Indebtedness or other liabilities secured by a Lien on the asset or
assets that were the subject of such Asset Sale or required to be paid as a result of such sale,
(4) any reserve for adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP, (5) in the case of any Asset Sale by a Restricted Subsidiary of the Parent,
payments to holders of Equity Interests in such Restricted Subsidiary in such capacity (other than
such Equity Interests held by the Parent or any Restricted Subsidiary thereof) to the extent that
such payment is required to permit the distribution of such proceeds in respect of the Equity
Interests in such Restricted Subsidiary held by the Parent or any Restricted Subsidiary thereof and
(6) appropriate amounts to be provided by the Parent or its Restricted Subsidiaries as a reserve
against liabilities associated with such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset Sale, all as
determined in accordance with GAAP; provided that (a) excess amounts set aside for payment of taxes
pursuant to clause (2) above remaining after such taxes have been paid in full or the statute of
limitations therefor has expired and (b) amounts initially held in reserve pursuant to clause (6)
no longer so held, shall, in the case of each of subclause (a) and (b), at that time become Net
Proceeds.




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




          “Note Guarantee” means a Guarantee of the Notes pursuant to this Indenture.




          “Notes” means the 7.75% Senior Secured Notes due 2016 of the Company issued on the date hereof
and any Additional Notes, including any Exchange Notes. The Notes and the Additional Notes, if
any, shall be treated as a single class for all purposes under this Indenture.




          “Obligations” means any principal (including reimbursement obligations with respect to letters
of credit whether drawn or not drawn), interest (including 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 Secured Debt Documents, even if such interest is not
enforceable, allowable or allowed as a claim in such proceeding), premium (if any), penalties,
fees, indemnifications, reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.




          “Offering Memorandum” means the offering memorandum of the Company for the offering of the
Notes, dated May 28, 2009.




          “Officer” means, with respect to any Person, the 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.




22









 








          “Officers’ Certificate” means a certificate signed on behalf of the Company or the Parent, as
the case may be, by at least two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the principal accounting
officer of the Company or the Parent, as the case may be, that meets the requirements of
Section 13.05 hereof.




          “OID Legend” means the legend set forth in Section 2.07(g)(iii) hereof to be placed on all
Notes issued under this Indenture that have more than a de minimis amount of original issue
discount for U.S. federal income tax purposes.




          “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee (who may be counsel to or an employee of the Parent or the Company) that meets the
requirements of Section 13.05 hereof.




          “Parent” means Leap Wireless International, Inc. until a successor replaces it pursuant to
Section 5.02 hereof and thereafter means the successor.




          “Parity Lien” means a Lien granted by a security document to the Collateral Trustee, at any
time, upon any Collateral to secure Parity Lien Obligations.




          “Parity Lien Debt” means:





     (1) the Notes issued by the Company under the Indenture on the Issue Date, any
Additional Notes issued under the Indenture, any Exchange Notes related to such Notes or
Additional Notes and the Note Guarantee of each Guarantor;




     (2) any Indebtedness (including letters of credit and reimbursement obligations with
respect thereto) of the Company or any Guarantor that is secured equally and ratably with
the Notes by a Parity Lien that was permitted to be incurred and so secured under each
applicable Secured Debt Document; provided, in the case of Indebtedness referred to in this
clause (2), that:




     (a) on or before the date on which such Indebtedness is incurred by the Company or
such Guarantor, such Indebtedness is designated by the Company, in accordance with the
Collateral Trust Agreement, as “Parity Lien Debt” for the purposes of the Secured Debt
Documents; provided that no Series of Secured Debt may be designated as both Parity Lien
Debt and Junior Lien Debt;




     (b) such Indebtedness is governed by an indenture, credit agreement or other
agreement that includes a Lien Sharing and Priority Confirmation; and




     (c) all requirements set forth in the Collateral Trust Agreement as to the
confirmation, grant or perfection of the Collateral Trustee’s Lien to secure such
Indebtedness or Obligations in respect thereof are satisfied (and the satisfaction of
such requirements will be conclusively established if the Company delivers to the
Collateral Trustee an officers’ certificate stating that such requirements have been
satisfied and that such notes or such Indebtedness is “Parity Lien Debt”); and



23









 






     (3) Hedging Obligations of the Company or any Guarantor incurred to hedge or manage
interest rate risk with respect to Parity Lien Debt; provided that, pursuant to the terms of
the Parity Lien Documents, such Hedging Obligations are secured by a Parity Lien on all of
the assets and properties that secure the Indebtedness in respect of which such Hedging
Obligations are incurred.



          “Parity Lien Documents” means this Indenture and any additional indenture, credit agreement or
other agreement governing a Series of Parity Lien Debt and the security documents that create or
perfect Liens securing Parity Lien Obligations.




          “Parity Lien Obligations” means Parity Lien Debt and all other Obligations in respect thereof.




          “Parity Lien Representative” means (1) the Trustee, in the case of the Notes, or (2) in the
case of any other Series of Parity Lien Debt, the trustee, agent or representative of the holders
of such Series of Parity Lien Debt who (a) is appointed as a Parity Lien Representative (for
purposes related to the administration of the Security Documents) pursuant to the indenture, the
credit agreement or other agreement governing such Series of Parity Lien Debt, together with its
successors in such capacity, and (b) has become a party to the Collateral Trust Agreement by
executing a joinder in the form required under the Collateral Trust Agreement.




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




          “Permitted Business” means any business conducted or proposed to be conducted (as described in
the Offering Memorandum) by the Parent and its Restricted Subsidiaries on the Issue Date
(including, without limitation, the delivery or distribution of wireless telecommunications
services (including voice, data or video services) and the acquisition, holding or exploitation of
any license relating to the delivery of such wireless telecommunications services) and other
businesses related, ancillary or complementary thereto.




          “Permitted Investments” means:





     (1) any Investment in the Parent or a Restricted Subsidiary of the Parent; provided
that if such Investment is in a Restricted Subsidiary of the Parent that is not either the
Company or a Subsidiary Guarantor, such Investment shall not constitute a Permitted
Investment under this clause (1) to the extent such Investment is made by a contribution or
transfer of any assets, including without limitation cash and FCC licenses, that constituted
Collateral prior to such contribution or transfer;




     (2) any Investment in Cash Equivalents;




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




	 	(a)	 	such Person becomes a Restricted Subsidiary of
the Parent; or




24









 












	 	(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 Parent or a Restricted
Subsidiary of the Parent;






provided that (x) such Person’s primary business is a Permitted Business and (y) if such
Person does not become a Subsidiary Guarantor, or is not merged, consolidated, amalgamated
with or into or does not transfer or convey substantially all of its assets to the Parent,
the Company or a Subsidiary Guarantor, such Investment shall not constitute a Permitted
Investment under this clause (3), to the extent such Investment is made by a contribution or
transfer of any assets, including without limitation cash and FCC licenses, that constituted
Collateral prior to such contribution or transfer;




     (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 4.10;




     (5) Hedging Obligations that are Incurred for the purpose of fixing, hedging or
swapping interest rate, commodity price or foreign currency exchange rate risk (or to
reverse or amend any such agreements previously made for such purposes), and not for
speculative purposes, and that do not increase the Indebtedness of the obligor outstanding
at any time other than as a result of fluctuations in interest rates, commodity prices or
foreign currency exchange rates or by reason of fees, indemnities and compensation payable
thereunder;




     (6) stock, obligations or securities received in satisfaction of judgments;




     (7) advances to customers or suppliers in the ordinary course of business that are, in
conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the
balance sheet of the Parent or its Restricted Subsidiaries and endorsements for collection
or deposit arising in the ordinary course of business;




     (8) commission, payroll, travel and similar advances to officers and employees of the
Parent or any of its Restricted Subsidiaries that are expected at the time of such advance
ultimately to be recorded as an expense in conformity with GAAP;




     (9) loans and advances to employees, officers or directors of the Parent or any of its
Restricted Subsidiaries made in the ordinary course of business, provided that such loans
and advances do not exceed $5.0 million at any one time outstanding;




     (10) Investments in any Existing Designated Entity pursuant to agreements in existence
on the Issue Date or to the extent permitted under that certain Amended and Restated Credit
Agreement, dated as of June 16, 2006, by and among the Company, the Parent, Bank of America,
N.A., as Administrative Agent, and the other lenders named therein, as in effect on October
23, 2006;




     (11) Investments existing on the Issue Date;




     (12) other Investments in any Person primarily engaged in a Permitted Business
(provided that any such Person is not an Affiliate of the Parent or is an Affiliate



25









 







of the Parent solely because: (i) the Parent, directly or indirectly, owns Equity
Interests in, or controls, such Person, or (ii) such Person is a Designated Entity) having
an aggregate Fair Market Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (12) since the Issue Date that are at that time
outstanding, not to exceed 15% of total assets of the Parent (with the Fair Market Value of
each Investment being measured at the time made and without giving effect to subsequent
changes in value), determined as of the end of the most recent fiscal quarter of the Parent
for which internal financial statements of the Parent are available, giving (x) pro forma
effect to Asset Dispositions and Asset Acquisitions (including giving pro forma effect to
the application of proceeds of any Asset Disposition) that occur during the period from the
end of such fiscal quarter to the Transaction Date as if they had occurred and such proceeds
had been applied on the last day of such fiscal quarter and (y) pro forma effect to asset
dispositions and asset acquisitions (including giving pro forma effect to the application of
proceeds of any asset disposition) that have been made by any Person that has become a
Restricted Subsidiary or a Designated Entity or has been merged with or into the Parent, any
Restricted Subsidiary or any Designated Entity during such period from the end of such
fiscal quarter to the Transaction Date and that would have constituted Asset Dispositions or
Asset Acquisitions had such transactions occurred when such Person was a Restricted
Subsidiary or a Designated Entity, as the case may be, as if such asset dispositions or
asset acquisitions were Asset Dispositions or Asset Acquisitions that occurred on the last
day of such fiscal quarter; and




     (13) Investments in any Person primarily engaged in a Permitted Business having an
aggregate Fair Market Value, when taken together with all other Investments made pursuant to
this clause (13) since the Issue Date that are at that time outstanding, not to exceed $250
million (with the Fair Market Value of each Investment being measured at the time made and
without giving effect to subsequent changes in value).



          “Permitted Liens” means:





     (1) Liens on the Collateral securing (a) the Notes and the Note Guarantees, other
Parity Lien Debt, the Permitted Priority Debt and the Junior Lien Debt in an aggregate
principal amount of such Indebtedness not to exceed the Secured Debt Cap on the date on
which such Lien is to be incurred, provided that the aggregate principal amount of Permitted
Priority Debt shall not exceed the Permitted Priority Debt Cap, and (b) all other related
Parity Lien Obligations, Junior Lien Obligations and Permitted Priority Debt Obligations;




     (2) Liens in favor of the Parent or any Subsidiary Guarantor;




     (3) Liens on property of a Person existing at the time such Person becomes a Restricted
Subsidiary or is merged with or into or consolidated with the Parent or any Restricted
Subsidiary of the Parent; provided that (i) such Liens do not extend to any property other
than the property of the Person that becomes a Restricted Subsidiary or is merged into or
consolidated with the Parent or the Restricted Subsidiary and (ii) the aggregate amount of
any Indebtedness or any other Obligations being secured by such



26









 







Liens or Liens permitted by clause (4) of this definition of Permitted Liens, including
all Permitted Refinancing Indebtedness secured by Liens that is Incurred to refund,
refinance or replace any such Indebtedness or Obligations (other than any such Permitted
Refinancing Indebtedness that is secured by Liens permitted under clause (1) of this
definition of Permitted Liens), shall not exceed $250 million at any time outstanding;




     (4) Liens on property existing at the time of acquisition thereof by the Parent or any
Restricted Subsidiary of the Parent, provided that (i) such Liens do not extend to any
property other than the property so acquired by the Parent or the Restricted Subsidiary and
(ii) the aggregate amount of any Indebtedness or any other Obligations being secured by such
Liens or Liens permitted by clause (3) of this definition of Permitted Liens, including all
Permitted Refinancing Indebtedness secured by Liens that is Incurred to refund, refinance or
replace any such Indebtedness or Obligations (other than any such Permitted Refinancing
Indebtedness that is secured by Liens permitted under clause (1) of this definition of
Permitted Liens), shall not exceed $250 million at any time outstanding;




     (5) [intentionally omitted];




     (6) Liens existing on the Issue Date (other than Liens securing the Notes and the Note
Guarantees) and any renewals or extension thereof, provided that property or assets covered
thereby is not expanded in connection with such renewal or extension;




     (7) Liens securing Permitted Refinancing Indebtedness; provided that such Liens do not
extend to any property or assets other than the property or assets that secure the
Indebtedness being refinanced;




     (8) [intentionally omitted];




     (9) Liens securing obligations that do not exceed $25 million at any one time
outstanding;




     (10) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.09(b)(iv); provided that any such Lien (a) covers only the assets acquired,
constructed or improved with such Indebtedness and (b) is created within 180 days of such
acquisition, construction or improvement;




     (11) Liens incurred or deposits made in the ordinary course of business in connection
with worker’s compensation, unemployment insurance or other social security obligations;




     (12) Liens, deposits (including deposits with the FCC) or pledges to secure the
performance of bids, tenders, contracts (other than contracts for the payment of
Indebtedness), leases, or other similar obligations arising in the ordinary course of
business;




     (13) survey exceptions, encumbrances, easements or reservations of, or rights of other
for, rights of way, zoning or other restrictions as to the use of properties, and



27









 







defects in title which, in the case of any of the foregoing, were not incurred or
created to secure the payment of Indebtedness, and which in the aggregate do no materially
adversely affect the value of such properties or materially impair the use for the purposes
of which such properties are held by the Parent, the Company or any Subsidiary Guarantor;




     (14) judgment and attachment Liens not giving rise to an Event of Default and notices
of lis pendens and associated rights related to litigation being contested in good faith by
appropriate proceedings and for which adequate reserves have been made;




     (15) Liens, deposits or pledges to secure public or statutory obligations, surety,
stay, appeal, indemnity, performance or other similar bonds or obligations; and Liens,
deposits or pledges in lieu of such bonds or obligations, or to secure such bonds or
obligations, or to secure letters of credit in lieu of or supporting the payment of such
bonds or obligations;




     (16) Liens in favor of collecting or payor banks having a right of setoff, revocation,
refund or chargeback with respect to money or instruments of the Parent, the Company or any
Subsidiary Guarantor on deposit with or in possession of such bank;




     (17) any interest or title of a lessor, licensor or sublicensor in the property subject
to any lease, license or sublicense (other than any property that is the subject of a Sale
and Leaseback Transaction);




     (18) Liens for taxes, assessments and governmental charges not yet delinquent or being
contested in good faith and for which adequate reserves have been established to the extent
required by GAAP;




     (19) Liens arising from precautionary UCC financing statements regarding operating
leases or consignments;




     (20) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;




     (21) Liens on cash collateral not in excess of $50 million in the aggregate at any time
securing letters of credit; and




     (22) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or
other like Liens arising in the ordinary course of business in respect of obligations not
overdue for a period in excess of 60 days or which are being contested in good faith by
appropriate proceedings promptly instituted and diligently prosecuted; provided, however,
that any reserve or other appropriate provision as will be required to conform with GAAP
will have been made for that reserve or provision.



          “Permitted Prior Liens” means:





     (1) Permitted Priority Liens;



28









 






     (2) Liens described in clauses (3), (4), (6), (7) (to the extent Liens on the
Indebtedness being referenced were otherwise Permitted Prior Liens), (10), (11), (12), (15)
and (16) of the definition of “Permitted Liens”; and




     (3) Permitted Liens that arise by operation of law and are not voluntarily granted, to
the extent they by law have priority over the Liens created by the security documents.



          “Permitted Priority Debt” means:





     (1) Indebtedness (including letters of credit and reimbursement obligations with
respect thereto) incurred by the Company or any of the Guarantors that is secured by
Permitted Priority Liens that were permitted to be incurred and so secured under each
applicable Secured Debt Document; provided, that:




     (a) on or before the date on which such Indebtedness is incurred by the Company or
the applicable Guarantor, such Indebtedness is designated by the Company, in an
officers’ certificate delivered to each Parity Lien Representative, each Junior Lien
Representative and the Collateral Trustee, as “Permitted Priority Debt” for the purposes
of the Secured Debt Documents; provided that no Series of Secured Debt may be designated
as both (i) Permitted Priority Debt and (ii) Parity Lien Debt or Junior Lien Debt;




     (b) the Permitted Priority Lien Representative, the Collateral Trustee, the Company
and each applicable Guarantor, has duly executed and delivered an Intercreditor
Agreement; and




     (2) Hedging Obligations of the Company or any Guarantor incurred to hedge or manage
interest rate risk with respect to Permitted Priority Debt; provided that, pursuant to the
terms of the documents governing the Permitted Priority Debt Obligations, such Hedging
Obligations are secured by a Permitted Priority Lien on all of the assets and properties
that secure the Indebtedness in respect of which such Hedging Obligations are incurred.



          “Permitted Priority Debt Cap” means, on any Transaction Date, an amount equal to the aggregate
amount of the Consolidated Cash Flow of the Parent, the Company and the Subsidiary Guarantors
(which for the avoidance of doubt, shall exclude the Consolidated Cash Flow of any Designated
Entity and any Restricted Subsidiary of the Parent other than the Company and the Subsidiary
Guarantors) for the Four Quarter Period times 0.30; provided that such amount shall not exceed $300
million. For purposes of making the computation referred to above, (1) pro forma effect shall be
given to Asset Dispositions and Asset Acquisitions (including giving pro forma effect to the
application of proceeds of any Asset Disposition) that occur during the Reference Period as if they
had occurred and such proceeds had been applied on the first day of such Reference Period and (2)
pro forma effect shall be given to asset dispositions and asset acquisitions (including giving pro
forma effect to the application of proceeds of any asset disposition) that have been made by any
Person that has become a Subsidiary Guarantor or has been merged with or into the Parent, the
Company or any Subsidiary




29









 







Guarantor during such Reference Period and that would have constituted Asset Dispositions or
Asset Acquisitions had such transactions occurred when such Person was a Subsidiary Guarantor as if
such asset dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that
occurred on the first day of such Reference Period. To the extent that pro forma effect is given to
an Asset Acquisition or Asset Disposition, such pro forma calculation shall be based upon the four
full fiscal quarters immediately preceding the Transaction Date of the Person, or division,
operating unit or line of business of the Person, that is acquired or disposed of for which
financial information is available, and Consolidated Cash Flow will be calculated on a pro forma
basis in accordance with Regulation S-X under the Securities Act, but without giving effect to
clause (3) of the proviso set forth in the definition of Consolidated Net Income.




          “Permitted Priority Debt Obligations” means Permitted Priority Debt and all other Obligations
in respect thereof.




          “Permitted Priority Lien Representative” means, in the case of any future Permitted Priority
Debt, the agent of the holders of such Permitted Priority Debt who is appointed as an agent for
purposes related to the administration of the security documents related to the Permitted Priority
Debt pursuant to the credit agreement or other agreement governing such Permitted Priority Debt,
together with its successors in such capacity.




          “Permitted Priority Liens” means Liens granted to the collateral agent or other representative
under any Permitted Priority Debt facility, at any time, upon the Collateral to secure Permitted
Priority Debt Obligations.




          “Permitted Refinancing Indebtedness” means any Indebtedness of the Parent or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Parent or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:





     (1) the amount of such Permitted Refinancing Indebtedness does not exceed the amount of
the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus all
accrued and unpaid interest thereon and the amount of any reasonably determined premium
necessary to accomplish such refinancing and such reasonable expenses incurred in connection
therewith);




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




     (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes or the Note Guarantees, such
Permitted Refinancing Indebtedness has a final maturity date later than the final maturity
date of the Notes and is subordinated in right of payment to the Notes or the Note
Guarantees, as applicable, on terms at least as favorable, taken as a whole, to the Holders
of Notes as those contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;



30









 






     (4) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is pari passu in right of payment with the Notes or any Note Guarantees, such
Permitted Refinancing Indebtedness is pari passu with, or subordinated in right of payment
to, the Notes or such Note Guarantees; and




     (5) such Indebtedness is Incurred by either (a) the Restricted Subsidiary that is the
obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded or (b) the Parent or the Company.



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




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




          “Private Placement Legend” means the legend set forth in Section 2.07(g)(i) to be placed on
all Notes issued under this Indenture except where otherwise permitted by the provisions of this
Indenture.




          “Property” means any right or interest in or to property or assets of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible, including Capital Stock.




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




          “Reference Period” means, with respect to any specified Transaction Date, the period beginning
on the first day of the Four Quarter Period and ending on such Transaction Date.




          “Registered Exchange Offer” has the meaning set forth in the Registration Rights Agreement.




          “Registration Rights Agreement” means (1) with respect to the Notes issued on the Issue Date,
the Registration Rights Agreement, to be dated the Issue Date, among the Company, the Initial
Guarantors and the Initial Purchasers and (2) with respect to any Additional Notes, any
registration rights agreement among the Company, the Guarantors and the other parties thereto
relating to the registration by the Company and the Guarantors of such Additional Notes under the
Securities Act.




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




          “Regulation S Global Note” means a Legended Regulation S Global Note or a Unlegended
Regulation S Global Note, as appropriate.




          “Replacement Assets” means (1) capital expenditures or other non-current assets that will be
used or useful in a Permitted Business or (2) substantially all the assets of a




31









 







Permitted Business or Voting Stock of any Person engaged in a Permitted Business that, when
taken together with all other Voting Stock of such Person owned by the Company and its Restricted
Subsidiaries, constitutes a majority of the Voting Stock of such Person and such Person shall
become on the date of acquisition thereof a Restricted Subsidiary.




          “Responsible Officer,” when used with respect to the Trustee, means any 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 and
the OID Legend.




          “Restricted Global Note” means a Global Note bearing the Private Placement Legend and the OID
Legend.




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




          “Restricted Period” means the 40-day restricted period as defined in Regulation S.




          “Restricted Subsidiary” of a Person means any Subsidiary of such Person that is not an
Unrestricted Subsidiary.




          “Restructuring Charges” means all charges and expenses caused by or attributable to any
restructuring, severance, relocation, consolidation and closing, integration, business optimization
or transition, signing, retention or completion bonuses, or curtailments or modifications to
pension and post-retirement employee benefit plans.




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




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




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




          “Rule 904” means Rule 904 promulgated the Securities Act.




          “S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, and its successors.




          “Sale and Leaseback Transaction” means, with respect to any Person, any transaction involving
any of the assets or properties of such Person, whether now owned or hereafter acquired, whereby
such Person sells or otherwise transfers such assets or properties and then or thereafter leases
such assets or properties or any part thereof or any other assets or




32









 







properties which such Person intends to use for substantially the same purpose or purposes as
the assets or properties sold or transferred.




          “SEC” means the United States Securities and Exchange Commission.




          “Secured Debt” means Parity Lien Debt and Junior Lien Debt.




          “Secured Debt Cap” means, on any Transaction Date, an amount equal to the greater of (i) the
aggregate amount of the Consolidated Cash Flow of the Parent, the Company and the Subsidiary
Guarantors (which, for the avoidance of doubt, shall exclude the Consolidated Cash Flow of any
Designated Entity and any Restricted Subsidiary of the Parent other than the Company and the
Subsidiary Guarantors) for the Four Quarter Period times (x) 3.5, in the case of any Transaction
Date that is on or prior to December 31, 2010, (y) 3.0, in the case of any Transaction Date that is
after December 31, 2010 and on or prior to December 31, 2011, and (z) 2.5, in the case of any
Transaction Date that is after December 31, 2011, and (ii) $1,500 million. For purposes of making
the computation referred to above, (1) pro forma effect shall be given to Asset Dispositions and
Asset Acquisitions (including giving pro forma effect to the application of proceeds of any Asset
Disposition) that occur during the Reference Period as if they had occurred and such proceeds had
been applied on the first day of such Reference Period and (2) pro forma effect shall be given to
asset dispositions and asset acquisitions (including giving pro forma effect to the application of
proceeds of any asset disposition) that have been made by any Person that has become a Subsidiary
Guarantor or has been merged with or into the Parent, the Company or any Subsidiary Guarantor
during such Reference Period and that would have constituted Asset Dispositions or Asset
Acquisitions had such transactions occurred when such Person was a Subsidiary Guarantor as if such
asset dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that
occurred on the first day of such Reference Period. To the extent that pro forma effect is given to
an Asset Acquisition or Asset Disposition, such pro forma calculation shall be based upon the four
full fiscal quarters immediately preceding the Transaction Date of the Person, or division,
operating unit or line of business of the Person, that is acquired or disposed of for which
financial information is available, and Consolidated Cash Flow will be calculated on a pro forma
basis in accordance with Regulation S-X under the Securities Act, but without giving effect to
clause (3) of the proviso set forth in the definition of Consolidated Net Income.




          “Secured Debt Documents” means the Parity Lien Documents and the Junior Lien Documents.




          “Secured Debt Obligations” means Parity Lien Obligations and Junior Lien Obligations.




          “Secured Debt Representative” means each Parity Lien Representative and each Junior Lien
Representative.




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




          “Security Agreement” means the Security Agreement to be dated on or about the Issue Date in
substantially the form attached hereto as Exhibit G, among the Parent, the Company, the Subsidiary
Guarantors and the Collateral Trustee, with respect to the security




33









 







interests in favor of the Collateral Trustee, for the benefit of the Holders of the Notes, in
all or any portion of the Collateral, in each case, as amended, modified, restated, supplemented or
replaced from time to time.




          “Security Documents” means the Collateral Trust Agreement, the Intercreditor Agreement, each
joinder to the Collateral Trust Agreement or Intercreditor Agreement, the Security Agreement, all
other security agreements, pledge agreements, control agreements, collateral assignments,
mortgages, deeds of trust or other grants or transfers for security or agreements related thereto
executed and delivered by the Company or any Guarantor creating or perfecting (or purporting to
create or perfect) or perfecting a Lien upon Collateral in favor of the Collateral Trustee to
secure the Notes and the Note Guarantee, in each case, as amended, modified, renewed, restated or
replaced, in whole or in part, from time to time.




          “Series of Junior Lien Debt” means, severally, each issue or series of Junior Lien Debt for
which a single transfer register is maintained (provided that any Hedging Obligations constituting
Junior Lien Debt shall be deemed part of the Series of Junior Lien Debt to which it relates).




          “Series of Parity Lien Debt” means, severally, the Notes and any Additional Notes, or Exchange
Notes or other Indebtedness that constitutes Parity Lien Debt (provided that any Hedging
Obligations constituting Parity Lien Debt shall be deemed part of the Series of Parity Lien Debt to
which it relates).




          “Series of Permitted Priority Debt” means, severally, each issue or series of Permitted
Priority Debt for which a single transfer register is maintained (provided that any Hedging
Obligations constituting Permitted Priority Debt shall be deemed part of the Series of Permitted
Priority Debt to which it relates).




          “Series of Secured Debt” means each Series of Parity Lien Debt and each Series of Junior Lien
Debt.




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




          “Significant Subsidiary” means any Subsidiary that would constitute a “significant
subsidiary” within the meaning of Article 1 of Regulation S-X of the Securities Act.




          “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and shall 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 the Voting Stock is at the time owned or controlled,



34









 







directly or indirectly, by such 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 one or more Subsidiaries of such Person (or any combination
thereof);




provided, however, that for avoidance of doubt, a Designated Entity shall not be deemed to
be a Subsidiary of the Parent, the Company or any of its Restricted Subsidiaries so long as
the Parent and its Restricted Subsidiaries do not own Voting Stock having the power (without
regard to the occurrence of any contingency) to elect more than 50% of the directors,
managers or trustees of such Designated Entity or become the sole general partner or the
managing general partner of such Designated Entity.



          “Subsidiary Guarantor” means any Restricted Subsidiary of the Parent that guarantees the
Company’s Obligations under the Notes in accordance with the terms of this Indenture, and its
successors and assigns, until released from its obligations under such Guarantee and this Indenture
in accordance with the terms of this Indenture.




          “TIA” means the Trust Indenture Act of 1939, as in effect on the date on which this Indenture
is qualified under the TIA.




          “Transaction Date” means, with respect to the incurrence of any Indebtedness by the Parent or
any of its Restricted Subsidiaries, the date such Indebtedness is to be incurred, with respect to
any Restricted Payment, the date such Restricted Payment is to be made, with respect to the making
of any Investment, the date such Investment is to be made, and with respect to the incurrence of
any Lien by the Parent or any of its Restricted Subsidiaries, the date such Lien is to be incurred.




          “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 prepayment (or, if such Statistical Release is no longer
published, any publicly available source for similar market data)) most nearly equal to the then
remaining term of the Notes to May 15, 2012 provided, however, that if the then remaining term of
the Notes to May 15, 2012 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 then
remaining term of the Notes to May 15, 2012 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 Wilmington Trust FSB, a national banking association, until a successor
replaces it in accordance with the applicable provisions of this Indenture and thereafter means the
successor serving hereunder.





35












 





          “UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.



          “Unlegended Regulation S Global Note” means a permanent global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the OID Legend, deposited with or on behalf of and
registered in the name of the Depositary or its nominee and issued upon expiration of the
Restricted Period.



          “Unrestricted Definitive Note” means one or more Definitive Notes that do not bear and are not
required to bear the Private Placement Legend.



          “Unrestricted Global Note” means a permanent Global Note substantially in the form of
Exhibit A attached hereto that bears the Global Note Legend and the OID Legend and that has the
“Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited
with or on behalf of and registered in the name of the Depositary, representing a series of Notes,
and that does not bear the Private Placement Legend.



          “Unrestricted Subsidiary” means any Subsidiary of the Parent (other than the Company) that is
designated by the Board of Directors of the Parent as an Unrestricted Subsidiary pursuant to a
Board Resolution in compliance with Section 4.16 hereof and any Subsidiary of such Subsidiary.



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



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



          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:




     (1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse between such date and the
making of such payment; by




     (2) the then outstanding principal amount of such Indebtedness.



          “wholly owned” means, with respect to any Subsidiary of any Person, the ownership of all of
the outstanding Capital Stock of such Subsidiary (other than any director’s qualifying shares and
shares issued to foreign nationals to the extent required by applicable law) by such Person or one
or more wholly owned Subsidiaries of such Person.



36









 





Section 1.02. Other Definitions.




	 	 	 	 	 
	 	 	Defined	 
	 	 	in	 
	Term	 	Section	 
	“Affiliate Transaction”
	 	 	4.11	 
	“Asset Sale Offer”
	 	 	4.10	 
	“Authentication Order”
	 	 	2.02	 
	“Change of Control Offer”
	 	 	4.14	 
	“Change of Control Payment”
	 	 	4.14	 
	“Change of Control Payment Date”
	 	 	4.14	 
	“Covenant Defeasance”
	 	 	8.03	 
	“DTC”
	 	 	2.01	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“Excess Proceeds Trigger Date”
	 	 	4.10	 
	“Legal Defeasance”
	 	 	8.02	 
	“Offer Amount”
	 	 	3.08	 
	“Offer Period”
	 	 	3.08	 
	“offshore transaction”
	 	 	2.07	 
	“Paying Agent”
	 	 	2.04	 
	“Payment Default”
	 	 	6.01	 
	“Permitted Debt”
	 	 	4.09	 
	“Purchase Date”
	 	 	3.08	 
	“Registrar”
	 	 	2.04	 
	“Related Proceedings”
	 	 	13.09	 
	“Repurchase Offer”
	 	 	3.08	 
	“Restricted Payments”
	 	 	4.07	 
	“Specified Courts”
	 	 	13.09	 






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;




     “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



37









 






     “obligor” on the Notes means the Company and any successor obligor upon the Notes.



          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.




          (a) Unless the context otherwise requires:




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




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




     (iii) “or” is not exclusive;




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




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




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



ARTICLE TWO

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 issued in registered, global form without interest coupons and only shall be in
minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof; provided that
Notes may be issuable in denominations of less than $1,000 solely to the extent necessary to
accommodate book-entry positions created in such amounts by the Depositary.



          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.



38









 





          (b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A
attached hereto (and shall include the Global Note Legend and the OID Legend thereon and the
“Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A attached hereto (but without the
Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note”
attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent 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 shall be made by the Trustee in accordance with instructions given by the
Holder thereof as required by Section 2.07 hereof.



          (c) Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for The
Depository Trust Company (“DTC”), and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream,
duly executed by the Company and authenticated by the Trustee as hereinafter provided. Following
the termination of the Restricted Period, beneficial interests in the Legended Regulation S Global
Note shall automatically be exchanged for beneficial interests in Unlegended Regulation S Global
Notes pursuant to the Applicable Procedures. The aggregate principal amount of the Regulation S
Global Notes may from time to time be increased or decreased by adjustments made on the records of
the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.



          (d) 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 Cedel Bank” and “Customer Handbook” of Clearstream shall be
applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by
Participants through Euroclear or Clearstream.



Section 2.02. Execution and Authentication.




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



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



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



39









 





          The aggregate principal amount of Notes which may be authenticated and delivered under this
Indenture is unlimited. The Company may, subject to Article Four of this Indenture and applicable
law, issue Additional Notes under this Indenture, including Exchange Notes; provided that the Notes
issued on the Closing Date and any such Additional Notes shall be fungible for U.S. federal income
tax purposes. The Notes issued on the Closing Date and any Additional Notes subsequently issued
shall be treated as a single class for all purposes under this Indenture.



          The Trustee shall, upon a written order of the Company signed by two Officers of the Company
(an “Authentication Order”), authenticate Notes for original issue on the date hereof of $1,100.0
million. At any time and from time to time after the execution of this Indenture, the Trustee
shall, upon receipt of an Authentication Order, authenticate Notes for original issue in aggregate
principal amount specified in such Authentication Order. The Authentication Order shall specify
the amount of Notes to be authenticated and the date on which the Notes are to be authenticated.



          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. Methods of Receiving Payments on the Notes.




          If a Holder has given wire transfer instructions to the Company, the Company shall pay, or
cause the Paying Agent to pay, all principal, interest and premium and Additional Interest, if any,
on that Holder’s Notes in accordance with those instructions. All other payments on Notes shall be
made at the office or agency of the Paying Agent and Registrar unless the Company elects to make
interest payments by check mailed to the Holders at their addresses set forth in the register of
Holders.



Section 2.04. Registrar and Paying Agent.




          (a) 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 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 prior notice to any Holder. The Company shall notify the Trustee in writing of the name
and address of any Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company
or any of its Subsidiaries may act as Paying Agent or Registrar.



          (b) The Company initially appoints DTC to act as Depositary with respect to the Global Notes.



40









 





          (c) The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to
act as Custodian with respect to the Global Notes.



Section 2.05. 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 shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium or Additional Interest, if any, or interest
on the Notes, and shall 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 one of its Subsidiaries) shall have no further liability for the money. If the Company
or one of its Subsidiaries 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 2.06. Holder Lists.




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



Section 2.07. Transfer and Exchange.




          (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except 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 shall be
exchanged by the Company for Definitive Notes if (i) DTC (A) notifies the Company that it is
unwilling or unable to continue as Depositary for the Global Notes and the Company fails to appoint
a successor Depositary within 90 days after receiving such notice or that it (B) has ceased to be a
clearing agency registered under the Exchange Act and the Company fails to appoint a successor
Depositary within 90 days after becoming aware of such condition; (ii) the Company, at its option,
notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes; provided
that in no event shall the Legended Regulation S Global Note be exchanged by the Company for
Definitive Notes prior to the expiration of the Restricted Period; or (iii) there shall have
occurred and be continuing a Default or Event of Default with respect to the Notes. Upon the
occurrence of any of the preceding events in (i), (ii) or (iii) 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 2.08 and 2.11 hereof. Every
Note authenticated and delivered in exchange for, or in lieu of, a



41









 







Global Note or any portion thereof, pursuant to this Section 2.07 or Section 2.08 or 2.11
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 2.07(a); however,
beneficial interests in a Global Note may be transferred and exchanged as provided in
Section 2.07(b) or (c) hereof.



          (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall 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 shall 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 Restricted Period, transfers of beneficial interests in the
Legended 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 2.07(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 2.07(b)(i) above, the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) 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
(2) instructions given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B) (1) 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
(2) 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 (1) above; provided that in no event shall Definitive Notes be
issued upon the transfer or exchange of beneficial interests in the Legended Regulation S
Global Note prior to the expiration of the Restricted Period. Upon consummation of a
Registered Exchange Offer by the Company in accordance with Section 2.07(f) hereof, the
requirements of this Section 2.07(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar



42









 







of the instructions contained in the Letter of Transmittal delivered by the Holder of
such beneficial interests in the Restricted Global Notes. 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 at maturity of the relevant Global Notes pursuant to
Section 2.07(i) 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 2.07(b)(ii) above and the Registrar
receives the following:




     (A) 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; and




     (B) if the transferee shall take delivery in the form of a beneficial
interest in a Legended 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.




     (iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in the 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 2.07(b)(ii) above and:




     (A) such exchange or transfer is effected pursuant to the Registered Exchange
Offer in accordance with the Registration Rights Agreement and the Holder of the
beneficial interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a Person participating in the distribution of the
Exchange Notes or (2) a Person who is an affiliate (as defined in Rule 144) of the
Company;




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




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




     (D) the Registrar receives the following:




     (1) if the Holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest



43









 







in an Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item (1)(a)
thereof; or




     (2) 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 (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to 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 (B) or (D) 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 (B) or (D) 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:




     (A) 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;




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




     (C) 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 that listed in subparagraph (B) above, a
certificate to the effect set forth in Exhibit B hereto, including the



44









 







certifications, certificates and Opinion of Counsel required by item (3)(b)
thereof, if applicable; or




     (D) 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)(a) thereof,




the Trustee shall cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.07(i) 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 2.07(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 2.07(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.




     (ii) Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. A
beneficial interest in the Legended Regulation S Global Note may not be exchanged for a
Definitive Note or transferred to a Person who takes delivery thereof in the form of a
Definitive Note prior to the expiration of the Restricted Period, except in the case of a
transfer pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.




     (iii) 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:




     (A) such exchange or transfer is effected pursuant to the Registered Exchange
Offer in accordance with the Registration Rights Agreement and the Holder of such
beneficial interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
Person participating in the distribution of the Exchange Notes or (2) a Person who
is an affiliate (as defined in Rule 144) of the Company;




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




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



45









 






     (D) the Registrar receives the following:




     (1) if the Holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Definitive Note
that does not bear the Private Placement Legend, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in
item (1)(b) thereof; or




     (2) 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 Definitive Note that does not bear
the Private Placement Legend, 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 (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to 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.




     (iv) 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 2.07(b)(ii) hereof, the Trustee shall
cause the aggregate principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.07(i) 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 pursuant to this Section 2.07(c)(iv) 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 pursuant to this Section 2.07(c)(iv) shall 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:



46









 






     (A) 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;




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




     (C) 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 under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (2) thereof; or




     (D) if such Restricted Definitive Note is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth hereto,




the Trustee shall cancel the Restricted Definitive Note, and increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global
Note, and in the case of clause (C) above, the Regulation S 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:




     (A) such exchange or transfer is effected pursuant to the Registered Exchange
Offer in accordance with the Registration Rights Agreement and the Holder, in the
case of an exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Person participating in the
distribution of the Exchange Notes or (2) a Person who is an affiliate (as defined
in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




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



47









 






     (2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of a beneficial interest in the 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 (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar and the Company 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 2.07(d)(ii),
the Trustee shall cancel the Unrestricted 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 Notes 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 shall
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)(B), (ii)(D) or (iii) 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 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 2.07(e), the
Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder shall 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 shall provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this
Section 2.07(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:



48









 






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




     (B) [INTENTIONALLY OMITTED]; and




     (C) if the transfer shall 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:




     (A) such exchange or transfer is effected pursuant to the Registered Exchange
Offer in accordance with the Registration Rights Agreement and the Holder, in the
case of an exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Person participating in the
distribution of the Exchange Notes or (2) a Person who is an affiliate (as defined
in Rule 144) of the Company;




     (B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;




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




     (D) the Registrar receives the following:




     (1) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes 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




     (2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes 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 (D), if the Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to the Company 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.



49









 






     (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 Note. 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.



          (f) Registered Exchange Offer. Upon the occurrence of a Registered Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Trustee shall authenticate (i) one or
more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of
the beneficial interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not participating in a
distribution of the Exchange Notes and (y) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Registered Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted Definitive Notes
accepted for exchange in the Registered Exchange Offer. Concurrently with the issuance of such
Notes, the Trustee shall cause the aggregate principal amount of the applicable Restricted Global
Notes to be reduced accordingly, and the Company shall execute and the Trustee shall authenticate
and deliver to the Persons designated by the Holders of Restricted Global Notes so accepted
Unrestricted Global Notes in the appropriate principal amount.



          (g) Legends. The following legends shall 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. Except as permitted below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor 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 THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE COMPANY THAT:




(A) SUCH SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY:



50









 






(i)(a) TO A PERSON WHOM 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) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE
THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 UNDER THE SECURITIES ACT, (d) TO AN
INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501 (a) (1), (2),
(3) OR (7) OF THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”))
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, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY 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 COMPANY SO REQUESTS),




(ii) TO THE COMPANY, OR




(iii) 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.




Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.07 (and all Notes issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.




     (ii) Global Note Legend. Each Global Note shall 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



51









 







CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II)
THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY
BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.




     (iii) OID Legend. Each Note issued hereunder that has more than a de minimis amount of
original issue discount for U.S. federal income tax purposes shall bear a legend in
substantially the following form:




THIS NOTE WAS ISSUED WITH “ORIGINAL ISSUE DISCOUNT” FOR PURPOSES OF SECTION 1271 ET
SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. A HOLDER MAY OBTAIN THE
ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR
SUCH NOTES BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE ISSUER AT THE
FOLLOWING ADDRESS: CRICKET COMMUNICATIONS, INC., 10307 PACIFIC CENTER COURT, SAN
DIEGO, CA 92121 ATTENTION: SECRETARY.



          (h) Regulation S Global Note Legend. The Regulation S Global Note shall bear a legend in
substantially the following form:




THE RIGHTS ATTACHING TO THIS GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN).



          (i) 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 shall be
returned to or retained and canceled by the Trustee in accordance with Section 2.12 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 shall 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 shall be reduced accordingly and an endorsement shall 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 shall take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note shall
be increased accordingly and an endorsement shall be made on such



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Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect
such increase.



          (j) General Provisions Relating to Transfers and Exchanges.




     (i) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s order
or at the Registrar’s request.




     (ii) No service charge shall 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 2.11,
3.06, 3.08, 4.10, 4.14 and 9.05 hereof).




     (iii) The Registrar shall not be required to 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.




     (iv) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid and legally binding
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) The Company shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection, (B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part, (C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment date or (D) to register the
transfer of or to exchange a Note tendered and not withdrawn in connection with a Change of
Control Offer or an Asset Sale Offer.




     (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 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 shall 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 2.07 to effect a registration of
transfer



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or exchange may be submitted by facsimile or electronic transmission with the original
to follow by first class mail.



Section 2.08. Replacement Notes.




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



          (b) 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 2.09. Outstanding Notes.




          (a) 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 as not outstanding. Except as set forth in Section 2.10 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note;
however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be
outstanding for purposes of Section 3.07(b) hereof.



          (b) If a Note is replaced pursuant to Section 2.08 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide
purchaser.



          (c) If the principal amount of any Note is considered paid under Section 4.01 hereof, it
ceases to be outstanding and interest on it ceases to accrue.



          (d) If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any of the
foregoing) 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 2.10. 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 the Parent, or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or the Parent, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on



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any such direction, waiver or consent, only Notes that the Trustee knows are so owned shall be
so disregarded.



Section 2.11. Temporary Notes.




          (a) 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 Definitive 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.



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



Section 2.12. 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 in accordance with its procedures for the disposition of canceled securities in
effect as of the date of such disposition (subject to the record retention requirement of the
Exchange Act). Certification of the disposition of all canceled Notes shall be delivered to the
Company. 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 2.13. 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, 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 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Company shall fix or cause to be fixed each such special record date and
payment date, provided that no such special record date shall be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the name and at the
expense of the Company) shall deliver or cause to be delivered to Holders a notice that states the
special record date, the related payment date and the amount of such interest to be paid.



Section 2.14. CUSIP Numbers.




          The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if
so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to 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



55









 







of a redemption and that reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be affected by any defect in or omission of
such numbers. The Company shall promptly notify the Trustee of any change in the “CUSIP” numbers.



ARTICLE THREE

REDEMPTION AND OFFERS TO

PURCHASE




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 shall furnish to the Trustee, at least 30 days but not more than 60 days
before a redemption date, an Officers’ Certificate setting forth (i) the clause of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount
of Notes to be redeemed and (iv) the redemption price.



Section 3.02. Selection of Notes to Be Redeemed.




          (a) If less than all of the Notes are to be redeemed at any time, the Trustee shall select the
Notes for redemption as follows (i) if the Notes are listed on any national securities exchange, in
compliance with the requirements of such principal national securities exchange, or, (ii) if the
Notes are not so listed, on a pro rata basis, subject to adjustments so that no Notes of $2,000 or
less will be redeemed in part.



          (b) The Trustee shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the principal amount at
maturity thereof to be redeemed. No Notes in amounts of $2,000 or less shall be redeemed in part.
Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of
Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided
in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.



Section 3.03. Notice of Redemption.




          (a) At least 30 days but not more than 60 days before a redemption date, the Company shall
deliver or cause to be delivered, by first class mail or electronic transmission, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered address.



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




     (i) the redemption date;




     (ii) the redemption price;




     (iii) if any Note is being redeemed in part only, the portion of the principal amount
of such Note to be redeemed and that, after the redemption date upon surrender



56









 







of such Note, a Note in principal amount equal to the unredeemed portion of the
original Note shall be issued in the name of the Holder thereof upon cancellation of the
original Note;




     (iv) the name and address of the Paying Agent;




     (v) that Notes called for redemption must be surrendered to the Paying Agent to
collect the redemption price and become due on the date fixed for redemption;




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




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




     (viii) 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.



          (b) At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company shall have delivered to the Trustee,
at least 45 days prior to the redemption date, an Officers’ 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. The notice, if delivered in the manner provided herein shall be presumed to
have been given, whether or not the Holder receives such notice.



Section 3.04. Effect of Notice of Redemption.




          Once notice of redemption is delivered 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 Price.




          (a) One Business Day prior to the redemption date, the Company shall deposit with the Trustee
or with the Paying Agent money sufficient to pay the redemption price of and accrued interest and
Additional Interest, if any, on all Notes to be redeemed on that date. The Trustee or the Paying
Agent shall 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 price of, and accrued
interest on, all Notes to be redeemed.



          (b) If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed 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 shall not be so paid upon surrender for redemption because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on the



57









 







unpaid principal, from the redemption 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 4.01 hereof.



Section 3.06. Notes Redeemed in Part.




          Upon surrender of a Note that is redeemed in part, the Company shall issue and the Trustee
shall authenticate for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered. No Notes in denominations of $2,000 or
less shall be redeemed in part.



Section 3.07. Optional Redemption.




          (a) Except as set forth in clause (b) and (c) of this Section 3.07, the Company shall not have
the option to redeem the Notes pursuant to this Section 3.07 prior to May 15, 2012. On or after
May 15, 2012, the Company may redeem all or a part of the Notes upon not less than 30 nor more than
60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest and Additional Interest, if any, thereon, to the applicable
redemption date (subject to the right of Holders on the relevant record date to receive interest
due on the related interest payment date), if redeemed during the twelve-month period beginning on
May 15 of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	105.813	%
	2013
	 	 	103.875	%
	2014
	 	 	101.938	%
	2015 and thereafter
	 	 	100.000	%






          (b) At any time prior to May 15, 2012, the Company may (on any one or more occasions) redeem
up to 35% of the aggregate principal amount of Notes issued hereunder (including any Additional
Notes) at a redemption price of 107.750% of the principal amount thereof, plus accrued and unpaid
interest and Additional Interest, if any, thereon to the redemption date (subject to the right of
Holders on the relevant record date to receive interest due on the related interest payment date),
with the net cash proceeds of one or more Equity Offerings; provided that (A) at least 50% of the
aggregate principal amount of Notes issued under this Indenture (including any Additional Notes)
remains outstanding immediately after the occurrence of such redemption (excluding Notes held by
the Company and its Affiliates); and (B) the redemption must occur within 90 days of the date of
the closing of such Equity Offering.



          (c) At any time prior to May 15, 2012, the Company may redeem all or part of the Notes upon
not less than 30 nor more than 60 days’ prior notice at a redemption price equal to the sum of
(i) 100% of the principal amount thereof, plus (ii) the Applicable Premium as of the date of
redemption, plus, (iii) accrued and unpaid interest and Additional Interest, if any, to the date of
redemption (subject to the right of Holders on the relevant record date to receive interest due on
the related interest payment date).



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          (d) 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 Offers.




          In the event that, pursuant to Section 4.10 or 4.14 hereof, the Company shall be required to
commence an offer to all Holders to purchase their respective Notes (a “Repurchase Offer”), it
shall follow the procedures specified in such Sections and, to the extent not inconsistent
therewith, the procedures specified below.



          The Repurchase Offer shall remain open for a period of no less than 30 days and no more than
60 days following its commencement, except to the extent that a longer period is required by
applicable law (the “Offer Period”). No later than three Business Days after the termination of
the Offer Period (the “Purchase Date”), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 or 4.14 hereof (the “Offer Amount”) or, if less
than the Offer Amount has been tendered, all Notes tendered in response to the Repurchase 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 Repurchase Offer.



          Upon the commencement of a Repurchase Offer, the Company shall send or cause to be sent, by
first class mail or electronic transmission, a notice to the Trustee and each of the Holders. The
notice shall contain all instructions and materials necessary to enable such Holders to tender
Notes pursuant to the Repurchase Offer. The Repurchase Offer shall be made to all Holders. The
notice, which shall govern the terms of the Repurchase Offer, shall state:




     (i) that the Repurchase Offer is being made pursuant to this Section 3.08 and
Section 4.10 or Section 4.14 hereof, and the length of time the Repurchase Offer shall
remain open;




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




     (iii) that any Note not tendered or accepted for payment shall continue to accrue
interest and Additional Interest, if any;




     (iv) that, unless the Company defaults in making such payment, any Note (or portion
thereof) accepted for payment pursuant to the Repurchase Offer shall cease to accrue
interest and Additional Interest, if any, after the Purchase Date;




     (v) that Holders electing to have a Note purchased pursuant to a Repurchase Offer may
elect to have Notes purchased in principal amounts of $2,000 or on integral multiples of
$1,000 only;



59









 






     (vi) that Holders electing to have a Note purchased pursuant to any Repurchase Offer
shall be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the
Company, a depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;




     (vii) 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;




     (viii) that, if the aggregate amount of Notes surrendered by Holders exceeds the Offer
Amount, the Trustee shall, subject in the case of a Repurchase Offer made pursuant to
Section 4.10 to the provisions of Section 4.10, select the Notes to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $2,000 or an integral multiple in excess thereof, shall be
purchased); and




     (ix) 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 the Purchase Date, the Company shall, to the extent lawful, subject in the case of a
Repurchase Offer made pursuant to Section 4.10 to the provisions of Section 4.10, accept for
payment on a pro rata basis to the extent necessary, the Offer Amount of Notes (or portions
thereof) tendered pursuant to the Repurchase Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, and shall deliver to the Trustee an Officers’ Certificate stating
that such Notes (or portions thereof) were accepted for payment by the Company in accordance with
the terms of this Section 3.08. The Company, the Depositary or the Paying Agent, as the case may
be, shall promptly (but in any case not later than three days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of Notes tendered by such
Holder, as the case may be, and accepted by the Company for purchase, and the Company, shall
promptly issue a new Note. The Trustee, upon written request from the Company shall authenticate
and mail or deliver such new Note to such Holder, in a principal amount at maturity 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 respective Holder thereof. The Company shall publicly announce the
results of the Repurchase Offer on the Purchase Date.



          The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any
other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to a Repurchase Offer and shall
not be deemed to have breached its obligations under Section 3.08, 4.10 or 4.14 by virtue of such
compliance.




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Section 3.09. Application of Trust Money.




          All money deposited with the Trustee pursuant to Section 12.02 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.




ARTICLE FOUR

COVENANTS




Section 4.01. Payment of Notes.




          (a) 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
one of its Subsidiaries, holds as of 11:00 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. The Company shall pay all Additional Interest, if any, in
the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.




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




Section 4.02. Maintenance of Office or Agency.




          (a) The Company shall maintain an office or agency (which may be an office of the Trustee or
an agent 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.




          (b) 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. 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.




61









 








          (c) The Company hereby designates the Corporate Trust Office of the Trustee as one such office
or agency of the Company in accordance with Section 2.04 of this Indenture.




Section 4.03. Reports.




     (a) Each of the Parent and the Company shall furnish to the Trustee and, upon written request,
to beneficial owners and prospective investors, a copy of all of the information and reports
referred to in clauses (i) and (ii) below within the time periods specified in the SEC’s rules and
regulations (including all applicable extension periods):




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




     (ii) all current reports that would be required to be filed with the SEC on Form 8-K
if it were required to file such reports.



          (b) Whether or not required by the SEC, each of the Parent and the Company shall comply with
the periodic reporting requirements of the Exchange Act and shall file the reports specified in
clauses (a)(i) and (ii) above with the SEC within the time periods specified above unless the SEC
shall not accept such a filing. Each of the Parent and the Company agrees that it shall not take
any action for the purpose of causing the SEC not to accept any such filings. If, notwithstanding
the foregoing, the SEC shall not accept the Parent’s or the Company’s filings for any reason, the
Parent or the Company, as the case may be, shall post the reports referred to in paragraph (a)
above on its website within the time periods that would apply if the Parent or the Company were
required to file those reports with the SEC (including all applicable extension periods).
Notwithstanding the foregoing, the availability of the reports referred to in clauses (a)(i) and
(ii) above on the SEC’s Electronic-Data Gathering, Analysis and Retrieval system (or any successor
system, including the SEC’s Interactive Data Electronic Application system) and the Parent’s
website within the time periods specified in the SEC’s rules and regulations (including all
applicable extension periods) will be deemed to satisfy this delivery obligation




          (c) If the Parent has designated any of its Subsidiaries as Unrestricted Subsidiaries, then
the quarterly and annual financial information required by Sections 4.03(a) and 4.03(b) shall
include a reasonably detailed presentation, either on the face of the financial statements or in
the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and
Results of Operations,” of the financial condition and results of operations of the Parent and its
Restricted Subsidiaries separate from the financial condition and results of operations of the
Unrestricted Subsidiaries of the Parent.




          (d) Notwithstanding the foregoing, so long as the Parent (or any direct or indirect parent
company of the Parent) is a Guarantor, the reports, information and other documents required to be
filed and provided by the Company (or the Parent) as described in this Section 4.03 shall be
satisfied by those of the Parent (or such direct or indirect parent company of the Parent), so long
as such filings would satisfy the requirements of the SEC.




62









 








          (e) The Company and the Guarantors shall, for so long as any Notes remain outstanding and each
of the Parent and the Company is not required to comply with the periodic reporting requirements of
the Exchange Act, furnish to the Holders and to prospective investors, upon their written request,
the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Notwithstanding the foregoing, the Company and the Guarantors will provide a copy of the
information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, to the
Trustee for informational purposes only.




Section 4.04. Compliance Certificate.




          (a) The Parent, the Company and each other Guarantor (to the extent that the Company or such
Guarantor is so required under the TIA) shall deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers’ Certificate stating that a review of the activities of the Parent
and its Subsidiaries during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Parent has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge, the Parent has kept, observed,
performed and fulfilled its obligations under this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Parent 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 Parent is taking or proposes to take with respect thereto.




          (b) So long as not contrary to the then current recommendations of the Public Company
Accounting Oversight Board (United States), the Company shall exercise its commercially reasonable
efforts to ensure that the year-end financial statements delivered pursuant to Section 4.03(a)
above are accompanied by a written statement of the Company’s independent registered public
accounting firm (which 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 financial covenants
contained herein that would be covered by the procedures performed in connection with their audit
of such financial statements 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 Parent shall, so long as any of the Notes are outstanding, deliver to the Trustee,
upon becoming aware of any Default or Event of Default, an Officers Certificate specifying such
Default or Event of Default, and in any event, no later than 5 Business Days after so becoming
aware.




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Section 4.05. Taxes.




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




Section 4.06. Stay, Extension and Usury Laws.




          The Company and each of the Guarantors covenant (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly
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 4.07. Restricted Payments.




          (a) The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly:





     (i) declare or pay (without duplication) any dividend or make any other payment or
distribution on account of the Parent’s or any of its Restricted Subsidiaries’ Equity
Interests (including, without limitation, any payment in connection with any merger or
consolidation involving the Parent or any of its Restricted Subsidiaries) or to the direct
or indirect holders of the Parent’s or any of its Restricted Subsidiaries’ Equity Interests
in their capacity as such (other than dividends, payments or distributions (x) payable in
Equity Interests (other than Disqualified Stock) of the Parent or (y) to the Parent or a
Restricted Subsidiary of the Parent);




     (ii) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Parent or any of
its Restricted Subsidiaries) any Equity Interests of the Parent or any Restricted
Subsidiary thereof held by Persons other than the Parent or any of its Restricted
Subsidiaries;




     (iii) make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or
any Note Guarantees, except (x) a payment of interest or principal at the Stated Maturity
thereof or (y) the purchase, repurchase or other acquisition of any such Indebtedness in
anticipation of satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of such purchase, repurchase or
other acquisition; or



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     (iv) make any Restricted Investment (all such payments and other actions set forth in
Sections 4.07(a)(i) through (iv) above being collectively referred to as “Restricted
Payments”),


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





     (A) no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof;




     (B) the Parent 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 Section 4.09(a); and




     (C) such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Parent and its Restricted Subsidiaries after the
Issue Date (excluding Restricted Payments permitted by subclauses 4.07(b)(ii),
(iii), (iv), (v), (vi), (vii), (viii), (ix) and (xi) below), is less than the sum,
without duplication, of:




     (1) 100% of the Consolidated Cash Flow of the Parent for the period
(taken as one accounting period) from April 1, 2009 to the end of the
Parent’s most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment, minus 1.5
times the Fixed Charges of the Parent for the same period, plus




     (2) 100% of the aggregate net cash proceeds (including Cash
Equivalents) received by the Parent since April 1, 2009 as a contribution to
its common equity capital or from the issue or sale of Equity Interests
(other than Disqualified Stock) of the Parent or from the Incurrence of
Indebtedness of the Parent or the Company that has been converted into or
exchanged for such Equity Interests (other than Equity Interests sold to, or
Indebtedness held by, a Subsidiary of the Parent), plus




     (3) with respect to Restricted Investments made by the Parent and its
Restricted Subsidiaries after the Issue Date, an amount equal to the net
reduction in such Restricted Investments in any Person resulting from
repayments of loans or advances, or other transfers of assets (including
dividends and other distributions), in each case to the Parent or any
Restricted Subsidiary or from the net cash proceeds from the sale of any
such Restricted Investment (except, in each case, to the extent any such
payment or proceeds are included in the calculation of Consolidated Cash
Flow), from the release of any Guarantee (except to the extent any amounts
are paid under such Guarantee) or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries, not to exceed, in each case, the
amount of Restricted Investments previously made by the Parent



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or any Restricted Subsidiary in such Person or Unrestricted Subsidiary
after the Issue Date.



          (b) The preceding provisions shall not prohibit, so long as, in the case of subclauses (iv),
(vii), (x) and (xi) of this Section 4.07(b), no Default has occurred and is continuing or would be
caused thereby:





     (i) the payment of any dividend within 60 days after the date of declaration thereof,
if at said date of declaration such payment would have complied with the provisions of this
Indenture;




     (ii) the payment of any dividend (or, in the case of any partnership or limited
liability company, any similar distribution) by a Restricted Subsidiary of the Parent to
the holders of its Common Stock on a pro rata basis;




     (iii) the redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Parent, the Company or any Subsidiary Guarantor or of any
Equity Interests of the Parent or any Restricted Subsidiary in exchange for, or out of the
net cash proceeds of a contribution to the common equity of the Parent or a substantially
concurrent sale (other than to a Subsidiary of the Parent) of, Equity Interests (other than
Disqualified Stock) of the Parent; provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement, defeasance or other
acquisition shall be excluded from clause (C)(2) of the preceding paragraph (a);




     (iv) the defeasance, redemption, repurchase or other acquisition of any Indebtedness
subordinated to the Notes or the Note Guarantees with the net cash proceeds from an
Incurrence of Permitted Refinancing Indebtedness;




     (v) Investments acquired as a capital contribution to, or in exchange for, or out of
the net cash proceeds of a substantially concurrent sale (other than to a Subsidiary of the
Parent) of, Equity Interests (other than Disqualified Stock) of, the Parent; provided that
the amount of any such net cash proceeds that are utilized for any such acquisition or
exchange shall be excluded from clause (C)(2) of the preceding paragraph (a);




     (vi) the repurchase of Equity Interests deemed to occur upon the exercise of options
or warrants to the extent that such Equity Interests represents all or a portion of the
exercise price thereof;




     (vii) (a) the repurchase, redemption or other acquisition or retirement for value of
any Equity Interests of the Parent held by any current or former employee, consultant or
director of the Parent, or any Restricted Subsidiaries of the Parent pursuant to the terms
of any equity subscription agreement, stock option agreement or similar agreement entered
into in the ordinary course of business; provided that the aggregate of all amounts paid by
the Parent in any calendar year shall not exceed $2.5 million (with unused amounts in any
calendar year being carried over to the next succeeding calendar year, subject to maximum
payment of $5.0 million in any calendar year); provided,



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further, that such amount in any calendar year may be increased by an amount equal to
(a) the net cash proceeds from the sale of Equity Interests of the Parent to current or
former members of management, directors, consultants or employees that occurs after the
Issue Date (provided that the amount of any such net cash proceeds shall be excluded from
clause 4.07(a)(C)(2) hereof) plus (b) the net cash proceeds of key man life insurance
policies received by the Parent or its Restricted Subsidiaries after the Issue Date;




     (viii) the purchase, redemption, acquisition, cancellation or other retirement for
value of shares of Capital Stock of the Parent, to the extent necessary, in the good faith
judgment of the Parent’s Board of Directors, to prevent the loss or secure the renewal or
reinstatement of any license held by the Parent or any of its Restricted Subsidiaries from
any governmental agency;




     (ix) the purchase by the Parent or the Company from WLPCS Management, LLC or CSM
Wireless, LLC (or their respective successors or assigns) of their respective membership
interests in LCW Wireless, LLC upon exercise of their respective “put” rights to sell their
entire membership interests in LCW Wireless, LLC to the Company; provided that exercise of
such “put” rights shall be on terms, in the good faith judgment of the Parent’s Board of
Directors, at least as favorable to the Parent and its Restricted Subsidiaries as WLPCS
Management, LLC’s or CSM Wireless LLC’s “put” rights in existence on October 23, 2006;




     (x) other Restricted Payments in an aggregate amount not to exceed $75.0 million; and




     (xi) the declaration or payment of dividends to holders of any class or series of
Disqualified Stock of the Parent or any of its Restricted Subsidiaries issued in accordance
with Section 4.09 of this Indenture.



          The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the
date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued
to or by the Parent or such Subsidiary, as the case may be, pursuant to the Restricted Payment;
provided that if the Fair Market Value exceeds $10.0 million, such Fair Market Value shall be
determined in good faith by the Board of Directors of the Parent evidenced by a Board Resolution.
Not later than the date of making any Restricted Payment under clause (C) of paragraph (a) or
clause (x) of paragraph (b) above, the Parent shall deliver to the Trustee an Officers’ Certificate
stating that such Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.07 were computed, together with a copy of any opinion or
appraisal required by this Indenture.




Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.




          (a) The Parent shall not, and shall 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 to:




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     (i) pay dividends or make any other distributions on its Capital Stock (or with
respect to any other interest or participation in, or measured by, its profits) to the
Parent or any of its Restricted Subsidiaries or pay any liabilities owed to the Parent or
any of its Restricted Subsidiaries;




     (ii) make loans or advances to the Parent or any of its Restricted Subsidiaries; or




     (iii) sell, lease or transfer any of its properties or assets to the Parent or any of
its Restricted Subsidiaries.



          (b) However, the preceding restrictions shall not apply to encumbrances or restrictions:





     (i) existing under, by reason of or with respect to the Existing Indebtedness or any
other agreements in effect on October 23, 2006 and any amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacements or refinancings
thereof, provided that the encumbrances and restrictions in any such amendments,
modifications, restatements, renewals, extensions, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Board of Directors of the Parent, not
materially more restrictive, taken as a whole, than those contained in the Existing
Indebtedness or such other agreements, as the case may be, as in effect on October 23,
2006;




     (ii) set forth in this Indenture, the Notes, the Note Guarantees, the Security
Documents and the Exchange Notes and the related Guarantees to be issued pursuant to the
Registration Rights Agreement in exchange therefor;




     (iii) existing under, by reason of or with respect to applicable law, rule, regulation
or order;




     (iv) with respect to any Person or the property or assets of a Person acquired by the
Parent or any of its Restricted Subsidiaries existing at the time of such acquisition and
not incurred in connection with or in contemplation of such acquisition, which encumbrance
or restriction is not applicable to any Person or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired and any
amendments, modifications, restatements, renewals, extensions, supplements, refundings,
replacements or refinancings thereof, provided that the encumbrances and restrictions in
any such amendments, modifications, restatements, renewals, extensions, supplements,
refundings, replacements or refinancings are, in the good faith judgment of the Board of
Directors of the Parent, not materially more restrictive, taken as a whole, than those in
effect on the date of the acquisition;




     (v) (A) that restrict in a customary manner the subletting, assignment or transfer of
any property or asset that is a lease, license, conveyance or contract or similar property
or asset,



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     (B) existing by virtue of any option or right with respect to, or Lien on, any
property or assets of the Parent or any Restricted Subsidiary thereof not otherwise
prohibited by this Indenture, or




     (C) arising or agreed to in the ordinary course of business, not relating to
any Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Parent or any Restricted Subsidiary thereof
in any manner material to the Parent or any Restricted Subsidiary thereof;




     (vi) existing under, by reason of or with respect to any agreement for the sale,
transfer or other disposition of any Capital Stock or property and assets of a Restricted
Subsidiary, pending the consummation of such sale, transfer or other disposition;




     (vii) existing under restrictions on cash or other deposits or net worth imposed by
customers, suppliers or landlords or required by insurance, surety or bonding companies, in
each case, under contracts entered into in the ordinary course of business;




     (viii) existing under, by reason of or with respect to provisions with respect to the
payment of dividends, the making of other distributions, loans or advances or the sale,
lease or other transfer of any assets or property, in each case contained in joint venture
agreements, partnership agreements, membership agreements and similar agreements and which
the Board of Directors of the Parent or the Company determines in good faith shall not
adversely affect the Company’s ability to make payments of principal or interest payments
on the Notes;




     (ix) in other Indebtedness incurred in compliance with Section 4.09 provided that such
restrictions, taken as a whole, are, in the good faith judgment of the Parent’s Board of
Directors, no more materially restrictive with respect to such encumbrances and
restrictions than those contained in the existing agreements referenced in clauses (i) and
(ii) above; and




     (x) in secured Indebtedness that is otherwise permitted to be incurred pursuant to
Sections 4.09 and 4.12 hereof.



Section 4.09. Incurrence of Indebtedness.




          (a) The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, Incur any Indebtedness; provided, however, that the Parent, the Company or any
Subsidiary Guarantor may Incur Indebtedness (including Acquired Indebtedness), and any Restricted
Subsidiary that is not a Subsidiary Guarantor may incur Acquired Indebtedness, if, after giving
effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds
therefrom, the Consolidated Leverage Ratio would be less than 6.25 to 1.





     (b) Section 4.09(a) shall not prohibit the Incurrence of any of the following items of
Indebtedness (collectively, “Permitted Debt”):



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     (i) the Incurrence by the Parent, the Company or any Subsidiary Guarantor of
Indebtedness under Credit Facilities in an aggregate amount at any one time outstanding
pursuant to this clause (i) not to exceed an amount equal to $1,500.0 million, less the sum
of: (x) the aggregate amount of all Net Proceeds of Asset Sales applied by the Parent or
any Restricted Subsidiary thereof to permanently repay any such Indebtedness pursuant to
Section 4.10 and (y) the aggregate principal amount outstanding from time to time under the
Notes issued on the Issue Date and any Exchange Notes issued pursuant to the Registration
Rights Agreement in exchange therefor that are incurred pursuant to subclause 4.09(b)(iii)
below and any Permitted Refinancing Indebtedness related thereto;




     (ii) the Incurrence of Existing Indebtedness;




     (iii) the Incurrence by the Parent, the Company and the Subsidiary Guarantors of
Indebtedness represented by the Notes and the related Note Guarantees to be issued on the
Issue Date and the Exchange Notes and the related Guarantees to be issued pursuant to the
Registration Rights Agreement in exchange therefor;




     (iv) the Incurrence by the Parent, the Company or any Subsidiary Guarantor of
Indebtedness represented by Capital Lease Obligations, mortgage financings, Attributable
Debt, purchase money obligations or other obligations, in each case, Incurred for the
purpose of financing all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment (including acquisition of Capital Stock of a
Person that becomes a Restricted Subsidiary to the extent of the Fair Market Value of the
property, plant or equipment of such Person) used in the business of the Parent, the
Company or such Subsidiary Guarantor, in an aggregate amount, including all Permitted
Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred
pursuant to this clause (iv), not to exceed the greater of (a) $150.0 million and (b) 3.0%
of the total assets of the Parent (determined as of the end of the most recent fiscal
quarter of the Parent for which internal financial statements of the Parent are available),
at any time outstanding;




     (v) the Incurrence by the Parent or any Restricted Subsidiary of the Parent of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used
to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be Incurred under Section 4.09(a) or
Section 4.09(b)(ii), (iii), (iv), (v), (xii) or (xiv);




     (vi) the Incurrence by the Parent or any of its Restricted Subsidiaries of
intercompany Indebtedness owing to or held by the Parent or any of its Restricted
Subsidiaries; provided, however, that:




     (A) if the Parent, the Company or any Subsidiary Guarantor is the obligor on
such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to
the prior payment in full in cash of all Obligations with respect to the Notes, in
the case of the Company, or the Note Guarantee, in the case of the Parent or a
Subsidiary Guarantor; and



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     (B) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Parent, the Company or a
Restricted Subsidiary of the Parent and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not the Parent, the Company or a Restricted
Subsidiary of the Parent, shall be deemed, in each case, to constitute an Incurrence
of such Indebtedness by the Parent, the Company or such Restricted Subsidiary, as
the case may be, that was not permitted by this clause (vi);




     (vii) the Guarantee by the Parent, the Company or any of the Subsidiary Guarantors of
Indebtedness of the Company or a Restricted Subsidiary of the Parent that was permitted to
be Incurred by another provision of this Section 4.09; provided that if the Indebtedness
being Guaranteed is subordinated to or pari passu with the Notes or any Note Guarantee,
then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent
as the Indebtedness guaranteed;




     (viii) the Incurrence by the Parent, the Company or any of its Restricted Subsidiaries
of Hedging Obligations that are Incurred for the purpose of fixing, hedging or swapping
interest rate, commodity price or foreign currency exchange rate risk (or to reverse or
amend any such agreements previously made for such purposes), and not for speculative
purposes, and that do not increase the Indebtedness of the obligor outstanding at any time
other than as a result of fluctuations in interest rates, commodity prices or foreign
currency exchange rates or by reason of fees, indemnities and compensation payable
thereunder;




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




     (x) the Incurrence by the Parent 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 drawn against insufficient funds in the ordinary course of business,
provided, however, that such Indebtedness is extinguished promptly after its Incurrence;




     (xi) the Incurrence by the Parent or any of its Restricted Subsidiaries of
Indebtedness constituting reimbursement obligations with respect to letters of credit
issued in the ordinary course of business; provided that, upon the drawing of such letters
of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30
days following such drawing or Incurrence;



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     (xii) the Incurrence by the Parent, the Company or any Restricted Subsidiary of
Acquired Indebtedness in an aggregate amount at any time outstanding, including all
Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any
Indebtedness Incurred pursuant to this clause 4.09(b)(xii), not to exceed $200.0 million;




     (xiii) the Incurrence by the Parent or the Company of Indebtedness to the extent that
the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the
Notes; or




     (xiv) the Incurrence by the Parent or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate amount at any time outstanding, including all Permitted
Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred
pursuant to this clause (xiv), not to exceed $100.0 million.



          For purposes of determining compliance with this Section 4.09, in the event that any proposed
Indebtedness (including Acquired Indebtedness) meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xiv) of 4.09(b), or is entitled to
be Incurred pursuant to 4.09(a), the Parent shall be permitted to divide and classify such item of
Indebtedness at the time of its Incurrence in any manner that complies with this Section 4.09 and
may later redivide and/or reclassify all or a portion of such item of Indebtedness in any manner
that complies with this Section 4.09.




          (c) Notwithstanding any other provision of this Section 4.09, the maximum amount of
Indebtedness that may be Incurred pursuant to this Section 4.09 shall not be deemed to be exceeded
with respect to any outstanding Indebtedness due solely to the result of fluctuations in the
exchange rates of currencies.




          (d) The Company shall not Incur any Indebtedness that is subordinate in right of payment to
any other Indebtedness of the Company unless it is subordinate in right of payment to the Notes to
the same extent. The Parent shall not, and shall not permit any Subsidiary Guarantor, to Incur any
Indebtedness that is subordinate in right of payment to any other Indebtedness of the Parent or
such Subsidiary Guarantor, as the case may be, unless it is subordinate in right of payment to the
relevant Note Guarantee to the same extent. For purposes of the foregoing, no Indebtedness shall
be deemed to be subordinated in right of payment to any other Indebtedness of the Parent, the
Company or any Subsidiary Guarantor, as applicable, solely by reason of any Liens or Guarantees
arising or created in respect thereof or by virtue of the fact that the holders of any secured
Indebtedness have entered into intercreditor agreements giving one or more of such holders priority
over the other holders in the collateral held by them.




Section 4.10. Asset Sales.




          (a) The Parent shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:





     (i) the Parent or such Restricted Subsidiary receives consideration at the time of
such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests
issued or sold or otherwise disposed of;



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     (ii) at least 75% of the consideration therefor received by the Parent or such
Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a
combination thereof. For purposes of this provision, each of the following shall be deemed
to be cash:




     (A) any liabilities, as shown on the Parent’s or such Restricted Subsidiary’s
most recent balance sheet, of the Parent or any Restricted Subsidiary (other than
contingent liabilities, Indebtedness that is by its terms subordinated to the Notes
or any Note Guarantee and liabilities to the extent owed to the Parent or any
Affiliate of the Parent) that are assumed by the transferee of any such assets or
Equity Interests pursuant to a written novation agreement that releases the Parent
or such Restricted Subsidiary from further liability therefor, and




     (B) any securities, notes or other obligations received by the Parent or any
such Restricted Subsidiary from such transferee that are (within 60 days of receipt
and subject to ordinary settlement periods) converted by the Parent or such
Restricted Subsidiary into cash (to the extent of the cash received in that
conversion); and




     (iii) if such Asset Sale involves the transfer of Collateral,




     (A) such Asset Sale complies with the applicable provisions of the Security
Documents, and




     (B) to the extent required by the Security Documents, all consideration
(including cash and Cash Equivalents) received in such Asset Sale shall be expressly
made subject to the Lien under the Security Documents; provided, that the Company or
any Guarantor may designate consideration received in exchange for the sale or other
disposition of Collateral having an aggregate Fair Market Value of $75 million since
the Issue Date as “Excluded Assets” (as defined in the Security Agreement) not
subject to the Lien under the Security Documents.



          Notwithstanding the foregoing, the 75% limitation referred to in Section 4.10(a)(ii) shall be
deemed satisfied with respect to any Asset Sale in which the cash, Cash Equivalents or Replacement
Assets portion of the consideration received therefrom, determined in accordance with the foregoing
provision on an after tax basis, is equal to or greater than what the after-tax proceeds would have
been had such Asset Sale complied with the aforementioned 75% limitation.




          (b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Parent or
its Restricted Subsidiaries may apply such Net Proceeds (or any portion thereof) at its option:





     (i) to the extent that such Net Proceeds represent proceeds of Collateral, (A) to
repay, prepay, defease, redeem, purchase or otherwise retire Permitted Priority Debt (and,
in the case of revolving loans and other similar obligations, permanently reduce the
commitment thereunder) or (B) to repay, prepay, defease, redeem, purchase or otherwise
retire Parity Lien Debt (other than the Notes) (and, in the case of revolving



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loans and other similar obligations, permanently reduce the commitment thereunder) on
a pro rata basis, but only up to an aggregate principal amount equal to such Net Proceeds
to be used to repay Indebtedness pursuant to this clause (b)(i)(B) multiplied by a
fraction, the numerator of which is the aggregate principal amount of such Indebtedness to
be repaid, prepaid, defeased, redeemed, purchased or otherwise retired and the denominator
of which is the aggregate principal amount of all Parity Secured Debt, based on amounts
outstanding on the date of closing of such Asset Sale; provided that the Company uses the
remaining Net Proceeds to be used to repay Indebtedness pursuant to this clause (b)(i)(B)
to make an offer to purchase (an “Asset Sale Offer”) from the Holders of the Notes on a pro
rata basis, an aggregate principal amount of Notes equal to such remaining Net Proceeds at
a purchase price equal to 100% of the principal amount thereof, plus accrued interest and
Additional Interest, if any, to the payment date;




     (ii) to the extent that such Net Proceeds do not represent proceeds of Collateral, to
repay, prepay, defease, redeem, purchase or otherwise retire unsubordinated Indebtedness of
the Company or any Guarantor in each case owing to a person other than the Company or any
Affiliate of the Company;




     (iii) in the case of an Asset Sale by a Restricted Subsidiary that is not a Subsidiary
Guarantor, to repay, prepay, defease, redeem, purchase or otherwise retire Indebtedness of
such Restricted Subsidiary (and, in the case of revolving loans and other similar
obligations, permanently reduce the commitment thereunder);




     (iv) to the extent that such Net Proceeds do not represent proceeds of Collateral, to
repay, prepay, defease, redeem, purchase or otherwise retire Indebtedness secured by a
Permitted Lien on the assets that were the subject of such Asset Sale; or




     (v) to purchase Replacement Assets (or enter into a binding agreement to purchase such
Replacement Assets; provided that (x) such purchase is consummated within 180 days after
the date that is 365 days after the receipt of such Net Proceeds from such Asset Sale and
(y) if such purchase is not consummated within the period set forth in subclause (x), the
Net Proceeds not so applied will be deemed to be Excess Proceeds (as defined below)),
provided, further, that, to the extent that such Net Proceeds represent proceeds of
Collateral (except as provided in Section 4.10(a)(iii)(B) hereof), the Parent or the
applicable Subsidiary Guarantor will promptly grant to the Collateral Trustee a security
interest in such assets pursuant to and to the extent required by the Security Documents.


Pending the final application of any such Net Proceeds, the Parent or any of the Restricted
Subsidiaries may invest such Net Proceeds in any manner that is not prohibited by this Indenture,
provided that any such investment of the Net Proceeds that represents proceeds of Collateral shall
be in an account that is subject to a perfected security interest for the benefit of the holders of
the Secured Debt (except as provided in Section 4.10(a)(iii)(B) hereof).




          (c) On the 366th day after an Asset Sale (or, in the event that a binding agreement has been
entered into as set forth in Section 4.10(b)(v), the later date of expiration of



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the 180-day period set forth in such Section 4.10(b)(v) or such earlier date, if any, as the
Parent determines not to apply the Net Proceeds relating to such Asset Sale as set forth in Section
4.10(b) (each such date being referred as an “Excess Proceeds Trigger Date”), such aggregate amount
of Net Proceeds that has not been applied on or before the Excess Proceeds Trigger Date as
permitted in Section 4.10(b) (“Excess Proceeds”) shall be applied by the Company to make an Asset
Sale Offer to all Holders of Notes (and if required by the terms of any Applicable Pari Passu
Indebtedness, to the holders of such Applicable Pari Passu Indebtedness) to purchase the maximum
principal amount of Notes and such other Applicable Pari Passu Indebtedness that may be purchased
out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of the
principal amount of the Notes and such other Applicable Pari Passu Indebtedness plus accrued and
unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in
cash.



          (d) The Company may defer the Asset Sale Offer until the aggregate unutilized Excess Proceeds
equals or exceeds $20.0 million, at which time the entire unutilized amount of Excess Proceeds (not
only the amount in excess of $20.0 million) shall be applied as provided in Section 4.10(c). If
any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent and its Restricted
Subsidiaries may use such Excess Proceeds for any purpose not otherwise prohibited by this
Indenture or the Security Documents. If the aggregate principal amount of Notes and such other
Applicable Pari Passu Indebtedness tendered in such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Notes and such other Applicable Pari Passu Indebtedness shall be purchased on a pro
rata basis based on the principal amount of Notes and such other Applicable Pari Passu Indebtedness
tendered, with such adjustments as may be needed so that only Notes in minimum amounts of $2,000
and integral multiples of $1,000 shall be purchased. Upon completion of each Asset Sale Offer, any
remaining Excess Proceeds subject to such Asset Sale shall no longer be deemed to be Excess
Proceeds.




          (e) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with each repurchase of the Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
Section 3.08 hereof or this Section 4.10, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations under Section 3.08
hereof or this Section 4.10 by virtue of such compliance.




Section 4.11. Transactions with Affiliates.




          (a) The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into, make, amend, renew or extend any transaction,
contract, agreement, understanding, loan, advance or Guarantee with, or for the benefit of, any
Affiliate (each, an “Affiliate Transaction”), unless:





     (i) such Affiliate Transaction is on terms that are no less favorable to the Parent or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
arm’s-length transaction by the Parent or such Restricted Subsidiary with a Person that is
not an Affiliate of the Parent or any of its Restricted Subsidiaries; and



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     (ii) the Parent delivers to the Trustee:




     (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, a
resolution of the Board of Directors set forth in an Officers’ Certificate
certifying that such Affiliate Transaction or series of related Affiliate
Transactions complies with this Section 4.11 and that such Affiliate Transaction or
series of related Affiliate Transactions has been approved by a majority of the
disinterested members of the Board of Directors of the Parent ; and




     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $50.0 million, an
opinion as to the fairness to the Parent or such Restricted Subsidiary of such
Affiliate Transaction or series of related Affiliate Transactions from a financial
point of view issued by an independent accounting, appraisal or investment banking
firm of national standing.



          (b) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall
not be subject to the provisions of Section 4.11(a):





     (i) transactions between or among the Parent and/or its Restricted Subsidiaries;




     (ii) payment of reasonable and customary fees to, and reasonable and customary
indemnification and similar payments on behalf of, directors of the Parent;




     (iii) Permitted Investments and Restricted Payments that are permitted by the
provisions of Section 4.07 of this Indenture;




     (iv) any sale of Equity Interests (other than Disqualified Stock) of the Parent or
receipt of any capital contribution from any Affiliate of the Parent;




     (v) any transaction with any of the Parent’s Designated Entities or Joint Venture
Entities pursuant to which the Parent or any of its Restricted Subsidiaries provides or
receives any of the following: operational, technical, administrative or other services;
goods; intellectual property or any rights therein; co-location rights or other licensed
rights; or leased or other real or personal property rights; provided that (a) if an
Affiliate of the Parent, other than any of its Restricted Subsidiaries, owns any Equity
Interests in such Designated Entity or Joint Venture Entity, such services, goods or other
rights provided to any such Designated Entity or Joint Venture Entity shall be provided at
prices equal to or greater than the cost to the Parent or such Restricted Subsidiary of
providing such services, goods or other rights, and (b) the Board of Directors of the
Company determines in good faith that such transaction is in the best interests of the
Company and the Restricted Subsidiaries;




     (vi) the provision of, or payment for, services in the ordinary course of business on
terms no less favorable to the Parent and its Restricted Subsidiaries, taken as



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a whole, than those that would be obtained in a comparable transaction with an
unrelated Person;




     (vii) transactions pursuant to agreements or arrangements in effect on the Issue Date,
or any amendment, modification, or supplement thereto or replacement thereof, as long as
such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as
a whole, is not more disadvantageous to the Parent and its Restricted Subsidiaries than the
original agreement or arrangement in existence on the Issue Date;




     (viii) any employment, consulting, service or termination agreement, or
indemnification arrangements, entered into by the Parent or any of its Restricted
Subsidiaries with current or former directors, officers and employees of the Parent or any
of its Restricted Subsidiaries and the payment of compensation to current or former
directors, officers and employees of the Parent or any of its Restricted Subsidiaries
(including amounts paid pursuant to employee benefit plans, employee stock option or
similar plans), so long as such agreement, arrangement, plan or payment has been approved
by a majority of the disinterested members of the Board of Directors of the Parent;




     (ix) issuances, purchases or repurchases of Notes or other Indebtedness of the Parent
or its Restricted Subsidiaries or solicitations of amendments, waivers or consents in
respect of Notes or such other Indebtedness, if such issuance, purchase, repurchase or
solicitation is approved by a majority of the disinterested members of the Board of
Directors of the Parent;




     (x) payments or prepayments in respect of Indebtedness under the Credit Facilities or
solicitations of amendments, waivers or consents in respect of the Indebtedness under the
Credit Facilities, if such payment, prepayment or solicitation is on the same terms as
those offered to each holder of the Indebtedness under the Credit Facilities that is not an
Affiliate of the Parent; and




     (xi) reasonable payments made for any financial advisory, financing, underwriting,
placement or syndication services approved by the Board of Directors of the Parent in good
faith.



Section 4.12. Liens.




          The Parent shall not, and shall not permit the Company or any Subsidiary Guarantor to, create,
Incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other
than Permitted Liens) that secure obligations under any Indebtedness of the Parent, the Company or
any Subsidiary Guarantor or any related Guarantee upon any Property of the Parent, the Company or
any Subsidiary Guarantor, now owned or hereafter acquired.




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Section 4.13. Business Activities.




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




Section 4.14. Offer to Repurchase upon a Change of Control.




          (a) If a Change of Control occurs, each Holder of Notes shall have the right to require the
Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess
thereof) of that Holder’s Notes pursuant to an offer by the Company (a “Change of Control Offer”).
In the Change of Control Offer, the Company shall offer payment (a “Change of Control Payment”) in
cash equal to not less than 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest and Additional Interest, if any, thereon, to the date of repurchase
(the “Change of Control Payment Date,” which date shall be no earlier than the date of such Change
of Control). No later than 30 days following any Change of Control, the Company shall mail a
notice to each Holder describing the transaction or transactions that constitute the Change of
Control and offering to repurchase Notes on the Change of Control Payment Date specified in such
notice, which date shall be no earlier than 30 days and no later than 60 days from the date such
notice is mailed, pursuant to the procedures described in Section 3.08.




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





     (i) accept for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer;




     (ii) deposit with the Paying Agent, prior to 11:00 a.m., New York City time, an amount
equal to the Change of Control Payment in respect of all Notes or portions thereof so
tendered; and




     (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together
with an Officers’ Certificate stating the aggregate principal amount of Notes or portions
thereof being purchased by the Company.



          (c) The Paying Agent shall promptly mail or wire transfer to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail
(or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be
in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.




          (d) The Company shall publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.




          (e) Notwithstanding anything to the contrary in this Section 4.14, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if




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(1) a third party makes the Change of Control Offer in the manner, at the times and otherwise
in compliance with the requirements set forth in this Section 4.14 and all other provisions of this
Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer, or (2) notice of redemption
with respect to all of the Notes has been given pursuant to Section 3.07 of this Indenture, unless
and until there is a default in payment of the applicable redemption price.




          (f) A Change of Control Offer may be made in advance of a Change of Control, and conditioned
upon such Change of Control, if a definitive agreement is in place for the Change of Control at the
time of making of the Change of Control Offer. Notes repurchased by the Company pursuant to a
Change of Control Offer will have the status of Notes issued but not outstanding or will be retired
and canceled, at the option of the Company. Notes purchased by a third party pursuant to Section
4.14(e) shall have the status of Notes issued and outstanding.




Section 4.15. [INTENTIONALLY OMITTED].




Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.




          (a) The Board of Directors of the Parent may designate any Restricted Subsidiary of the
Parent, other than the Company, to be an Unrestricted Subsidiary, provided that:





     (i) any Guarantee by the Parent or any Restricted Subsidiary thereof of any
Indebtedness of the Subsidiary being so designated shall be deemed to be an Incurrence of
Indebtedness by the Parent or such Restricted Subsidiary (or both, if applicable) at the
time of such designation, and such Incurrence of Indebtedness would be permitted under
Section 4.09;




     (ii) the aggregate Fair Market Value of all outstanding Investments owned by the
Parent and its Restricted Subsidiaries in the Subsidiary being so designated (including any
Guarantee by the Parent or any Restricted Subsidiary thereof of any Indebtedness of such
Subsidiary) and any commitments to make any such Investments shall be deemed to be an
Investment made as of the time of such designation and that such Investment would be
permitted under Section 4.07;




     (iii) such Subsidiary does not hold any Liens on any property of the Parent or any
Restricted Subsidiary thereof;




     (iv) the Subsidiary being so designated:




     (A) is not party to any agreement, contract, arrangement or understanding with
the Parent or any Restricted Subsidiary of the Parent unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Parent or such Restricted Subsidiary than those that could have been obtained at the
time the agreement, contract, arrangement or understanding was entered into from
Persons who are not Affiliates of the Parent (other than any such agreement,
contract, arrangement or understanding permitted under Section 4.11); and



79









 






     (B) has not Guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Parent or any of its Restricted Subsidiaries,
except to the extent such Guarantee or credit support would be released upon such
designation; and




     (v) no Default or Event of Default would be in existence following such designation.



          (b) Any designation of a Subsidiary of the Parent as an Unrestricted Subsidiary shall be
evidenced to the Trustee by filing with the Trustee the Board Resolution giving effect to such
designation and an Officers’ Certificate certifying that such designation complied with Section
4.16(a) and is permitted by this Indenture. If, at any time, any Unrestricted Subsidiary would fail
to meet any of the requirements described in Section 4.16(a)(iv), it shall thereafter cease to be
an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness, Investments, or
Liens on the property of such Subsidiary shall be deemed to be Incurred or made by a Restricted
Subsidiary of the Parent as of such date and, if such Indebtedness, Investments or Liens are not
permitted to be Incurred or made as of such date under this Indenture, the Parent shall be in
Default under this Indenture.




          (c) The Board of Directors of the Parent may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that:





     (i) such designation shall be deemed to be an Incurrence of Indebtedness by a
Restricted Subsidiary of the Parent of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if such Indebtedness is permitted
under Section 4.09;




     (ii) all outstanding Investments owned by such Unrestricted Subsidiary shall be deemed
to be made as of the time of such designation and such designation shall only be permitted
if such Investments would be permitted under Section 4.07;




     (iii) all Liens upon property or assets of such Unrestricted Subsidiary existing at
the time of such designation would be permitted under Section 4.12; and




     (iv) no Default or Event of Default would be in existence following such designation.



Section 4.17. Payments for Consent.




          The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of
this Indenture or the Notes unless such consideration is offered to be paid and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.




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Section 4.18. Guarantees.




          (a) If the Company or any Guarantor acquires or creates a wholly owned Domestic Restricted
Subsidiary after the Issue Date that guarantees any Indebtedness of the Parent, the Company or any
Subsidiary Guarantor, then that newly acquired or created wholly owned Domestic Restricted
Subsidiary shall become a Guarantor and execute a supplemental indenture and shall become a party
to the Collateral Trust Agreement, the Security Agreement and the other Security Documents and
comply with all provisions thereof.




          (b) The Parent shall not permit any of its Restricted Subsidiaries, directly or indirectly, to
Guarantee any other Indebtedness for borrowed money of the Parent, the Company, or any Subsidiary
Guarantor unless such Restricted Subsidiary is the Company or a Subsidiary Guarantor or
simultaneously executes and delivers to the Trustee an Opinion of Counsel and a supplemental
indenture in the form attached hereto as Exhibit F providing for the Guarantee of the payment of
the Notes by such Restricted Subsidiary, which Guarantee shall be pari passu with or if such other
Indebtedness for borrowed money is subordinated to the Notes or any Note Guarantees, senior to,
such Subsidiary’s Guarantee of such other Indebtedness for borrowed money.




          (c) Notwithstanding the preceding paragraph, any Note Guarantee shall provide by its terms
that it shall be automatically and unconditionally released and discharged under the circumstances
described under Section 11.05 hereof.




ARTICLE FIVE

SUCCESSORS




Section 5.01. Merger, Consolidation or Sale of Assets.




          (a) Neither the Company nor the Parent shall, directly or indirectly: (1) consolidate or merge
with or into another Person (whether or not the Company or the Parent, as applicable, is the
surviving corporation) or (2) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of its properties and assets in one or more related transactions, to another
Person, unless:





     (i) either: (a) the Company or the Parent, as applicable, is the surviving
corporation; or (b) the Person formed by or surviving any such consolidation or merger (if
other than the Company or the Parent, as applicable) or to which such sale, assignment,
transfer, conveyance or other disposition shall have been made (i) is a corporation,
partnership or limited liability company organized or existing under the laws of the United
States, any state thereof or the District of Columbia and (ii) assumes all the obligations
of the Company or the Parent, as applicable, under the Notes, the Guarantee, this
Indenture, the Security Documents and the Registration Rights Agreement, as the case may
be, pursuant to agreements reasonably satisfactory to the Trustee; provided that in the
case where such Person is not a corporation, a co-obligor of the Notes is a corporation;




     (ii) immediately after giving effect to such transaction, no Default or Event of
Default exists;



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     (iii) immediately after giving effect to such transaction on a pro forma basis, (a)
the Company or the Parent, as applicable, or the Person formed by or surviving any such
consolidation or merger (if other than the Company or the Parent, as applicable), or to
which such sale, assignment, transfer, conveyance or other disposition shall have been
made, shall be permitted to Incur at least $1.00 of additional Indebtedness pursuant to
Section 4.09(a), or (b) the Consolidated Leverage Ratio for the Parent or such Person, as
the case may be, shall not be greater than the Consolidated Leverage Ratio for the Parent
immediately prior to such transaction; and




     (iv) each Guarantor, unless such Guarantor is the Person with which the Company or the
Parent has entered into a transaction under this Section 5.01, shall have confirmed in
writing to the Trustee that its Note Guarantee shall apply to the obligations of the
Company or the surviving Person in accordance with the Notes, the Security Documents and
this Indenture; and




     (v) such Company or the Parent has delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or disposition and
such supplemental indenture, if any, comply with this Indenture.



          (b) The Parent and its Restricted Subsidiaries shall not, directly or indirectly, lease all or
substantially all of the properties or assets of the Parent and its Restricted Subsidiaries
considered as one enterprise, in one or more related transactions, to any other Person.




          (c) Section 5.01(a)(iii) shall not apply to (x) any merger, consolidation or sale, assignment,
transfer, conveyance or other disposition of assets between or among the Parent or the Company and
any of the Parent’s Restricted Subsidiaries or (y) a merger of the Parent or the Company with an
Affiliate solely for the purpose of reincorporating the Parent or the Company in another
jurisdiction.




Section 5.02. Successor Corporation Substituted.




          Upon any consolidation or merger, or any sale, assignment, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company or the Parent, as applicable,
in accordance with Section 5.01 hereof, the successor corporation formed by such consolidation or
into or with which the Company or the Parent, as applicable, is merged or to which such sale,
assignment, transfer, 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, conveyance or
other disposition, the provisions of this Indenture referring to the “Company” or the “Parent,” as
applicable, shall refer instead to the successor corporation and not to the Company or the Parent,
as applicable), and may exercise all rights and powers of, the Company or the Parent, as
applicable, under this Indenture with the same effect as if such successor Person had been named as
the Company or the Parent, as applicable, herein.




ARTICLE SIX

DEFAULTS AND REMEDIES




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Section 6.01. Events of Default.




          (a) Each of the following is an “Event of Default”:





     (i) default for 30 days in the payment when due of interest on, or Additional
Interest, if any, with respect to, the Notes;




     (ii) default in payment when due (whether at maturity, upon acceleration, redemption,
required repurchase or otherwise) of the principal of, or premium, if any, on the Notes;




     (iii) failure by the Parent, the Company or any Restricted Subsidiary of the Parent to
comply with the provisions of Section 4.03 for 120 days after notice to the Parent by the
Trustee or the Holders of at least 25% in aggregate principal amount of Notes then
outstanding voting as a single class;




     (iv) failure by the Parent, the Company or any Restricted Subsidiaries of the Parent
for 30 days after written notice to the Parent by the Trustee or the Holders of at least
25% in aggregate principal amount of Notes then outstanding to comply with Sections 4.10 or
4.14 (in each case other than a failure to purchase Notes which shall constitute an Event
of Default under Section 6.01(a)(ii)) or the failure by the Parent or the Company to comply
with Section 5.01;




     (v) failure by the Parent, the Company or any Restricted Subsidiary of the Parent for
60 days after written notice to the Parent by the Trustee or the Holders of at least 25% in
aggregate principal amount of Notes then outstanding to comply with any of the other
agreements in this Indenture, the Notes, the Note Guarantees, or the Security Documents;




     (vi) default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness by Parent, the
Company or any Restricted Subsidiary that is a Significant Subsidiary of the Parent (or the
payment of which is Guaranteed by Parent, the Parent or any Restricted Subsidiary that is a
Significant Subsidiary of the Parent) whether such Indebtedness or Guarantee now exists, or
is created after the Issue Date, if that default:




     (A) is caused by a failure to make any payment when due at the final maturity
of such Indebtedness (a “Payment Default”); or




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




and, in each case, the amount of any such Indebtedness, together with the amount of any
other such Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $25.0 million or more;




     (vii) failure by Parent, the Company or any Restricted Subsidiary that is a
Significant Subsidiary of the Parent to pay final judgments (to the extent such judgments



83









 






are not paid or covered by insurance provided by a reputable carrier) aggregating in
excess of $25.0 million, which judgments are not paid, discharged or stayed for a period of
60 days;




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




     (ix) the Parent, the Company, any Subsidiary Guarantor or any Significant Subsidiary
of the Parent, pursuant to or within the meaning of Bankruptcy Law:



          (A) commences a voluntary case,




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




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




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





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




     (A) is for relief against the Parent, the Company, any Subsidiary Guarantor or any
Significant Subsidiary of the Parent, in an involuntary case,




     (B) appoints a custodian of the Parent, the Company, any Subsidiary Guarantor or
Significant Subsidiary of the Parent or for all or substantially all of the property of the
Parent, the Company, any Subsidiary Guarantor or Significant Subsidiary of the Parent, or




     (C) orders the liquidation of the Parent, the Company, any Subsidiary Guarantor or
Significant Subsidiary of the Parent;




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




     (xi) so long as the Security Documents have not otherwise been terminated in
accordance with their terms or the Collateral as a whole of the Company or any Guarantor
has not otherwise been released from the Lien of the Security Documents in accordance with
the terms thereof, (A) default by the Company or any such Guarantor in the performance of
the Security Documents which adversely affects the enforceability, validity, perfection or
priority of the Lien on the Collateral securing the Obligations under the Indenture and the
Notes or which adversely affects the condition or value of the Collateral, in each case
taken as a whole, in any material respect, (B) repudiation or disaffirmation by the Company
or any Guarantor, or any Person acting on behalf of the Company or any Guarantor, of its
obligations under the Security Documents or (C) the determination in a judicial proceeding
that all or any material portion of the Security Documents, taken as a whole, are
unenforceable or invalid, for any reason, against the



84









 






Company or any Guarantor; provided, that, it will not be an Event of Default under
this clause (xi) if the sole result of the failure of one or more Security Documents to be
fully enforceable is that any Lien securing Parity Lien Debt (other than the Notes),
Permitted Priority Debt or Junior Lien Debt purported to be granted under such Security
Documents on Collateral ceases to be enforceable and perfected.



Section 6.02. Acceleration.




          (a) In the case of an Event of Default specified in Section 6.01(a)(ix) or Section 6.01(a)(x)
hereof, all outstanding Notes shall 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 by notice in writing to the Company specifying the Event of Default.




          With respect to periods after May 15, 2012, in the case of any Event of Default occurring by
reason of any willful action or inaction taken or not taken by or on behalf of the Parent or the
Company with the intention of avoiding payment of the premium that the Company would have had to
pay if the Company then had elected to redeem the Notes pursuant to Section 3.07(a), an equivalent
premium shall also become and be immediately due and payable to the extent permitted by law upon
the acceleration of the Notes. With respect to periods prior to May 15, 2012, if an Event of
Default occurs during any time that the Notes are outstanding, by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Parent or the Company with the intention of
avoiding the prohibition on redemption of the Notes, then the premium specified in Section 3.07(c)
that would have been payable upon redemption at the time the Event of Default occurs shall also
become immediately due and payable to the extent permitted by law upon the acceleration of the
Notes.




Section 6.03. Other Remedies.




          (a) 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, interest, and Additional Interest, if
any, with respect to, the Notes or to enforce the performance of any provision of the Notes or this
Indenture.




          (b) 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 6.04. Waiver of Past Defaults.




     (a) Holders of a majority in aggregate principal amount of the Notes then outstanding by
written notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind and annul
a declaration of acceleration pursuant to Section 6.02 hereof, and its consequences, and waive any
related existing Default or Event of Default (except a continuing Default or Event of



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Default in the payment of interest or Additional Interest, if any, premium, if any, or on the
principal of the Notes) if:




     (i) the Company has paid or deposited with the Trustee a sum sufficient to pay (x) all sums
paid or advanced by the Trustee hereunder and the reasonable compensation, expenses and
disbursements and advances of the Trustee, it agents and counsel, (y) all overdue interest and
Additional Interest, if any, on all Notes, (z) the principal of and premium, if any, on any Notes
that have become due otherwise than by such declaration or occurrence of acceleration and interest
and Additional Interest, if any, thereon at the rate prescribed therefor by such Notes, and (iv) to
the extent that payment for such interest is lawful, interest upon overdue interest, if any, at the
rate prescribed in Section 4.01 hereof,



     (ii) all existing Events of Default, other than the nonpayment of the principal of, premium,
if any, and interest and Additional Interest, if any, on the Notes that have become due solely by
such declaration of acceleration, have been cured or waived, and



     (iii) the rescission would not conflict with any judgment or decree of a court of competent
jurisdiction.



     (b) The Company shall deliver to the Trustee an Officers’ Certificate stating that the
requisite percentage of Holders have consented to any such waiver and attaching copies of such
consents. In case of any such waiver, the Parent, Company, the Trustee and the Holders shall be
restored to their former positions and rights hereunder and under the Notes, respectively. This
Section 6.04 and Section 9.02 shall be in lieu of Section 316(a)(1)(B) of the TIA and such Section
316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture and the Notes, as
permitted by the TIA. 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 6.05. Control by Majority.




          The Holders of a majority in aggregate principal amount of the then outstanding Notes will
have the right to direct the time, method and place of conducting any proceeding for exercising any
remedy available to the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law, this Indenture or the Security Documents, that may involve the Trustee in
personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders of Notes not joining in the giving of such direction and may take any other
action it deems proper that is not inconsistent with any such direction received from Holders of
Notes.




Section 6.06. Limitation on Suits.




          (a) A Holder may not pursue any remedy with respect to this Indenture, the Security Documents
or the Notes unless:




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




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




     (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense;




     (iv) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and




     (v) during such 60-day period, the Holders of a majority in aggregate principal amount
of the outstanding Notes do not give the Trustee a direction that is inconsistent with the
request.



          Such limitations do not apply to the right of any Holder of a Note to receive payment of the
principal of, premium or Additional Interest, if any, or interest on, such Note or to bring suit
for the enforcement of any such payment, on or after the due date expressed in the Notes, which
right shall not be impaired or affected without the consent of the Holder.




          (b) 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 6.07. 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, interest on, and Additional Interest, if any, with
respect to, the 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.




Section 6.08. Collection Suit by Trustee.




          If an Event of Default specified in Section 6.01(a)(i) or (a)(ii) 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 for the whole amount of principal of, premium, if any, interest, and Additional
Interest, if any, remaining unpaid on the Notes and interest on overdue principal and premium, if
any, and, to the extent lawful, interest and Additional Interest, if any, 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 6.09. 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




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any claim for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Company or any Guarantor (or any other obligor upon the Notes), its creditors or
its property and shall be entitled and empowered to collect, receive and distribute any money or
other securities or 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 7.07 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 7.07 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 6.10. Priorities.




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





     First: to the Trustee, its agents and attorneys for amounts due under Section 7.07
hereof, including payment of all compensation, expense and liabilities Incurred, and all
advances made, by the Trustee and the costs and expenses of collection;




     Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, interest and Additional Interest, if any, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for principal,
premium, if any, interest, and Additional Interest, if any, respectively; and




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



          (b) The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.




Section 6.11. Undertaking for Costs.




          In any suit for the enforcement of any right or 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



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faith of the claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by
Holders of more than ten percent in principal amount of the then outstanding Notes.




ARTICLE SEVEN

TRUSTEE




Section 7.01. Duties of Trustee. Except to the extent, if any, provided otherwise in
the Trust Indenture Act of 1939 (as from time to time in effect):




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



          (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;




     (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 6.05
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 7.01.




          (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 at the request of any Holder of Notes, unless such




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Holder shall have offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.




          (f) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.




Section 7.02. Certain Rights of Trustee.




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




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel 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 shall be sufficient if signed by an Officer of the Company.




          (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory to it 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 such
event is sent to the Trustee in accordance with Section 13.02 hereof, and such notice references
the Notes.




Section 7.03. Individual Rights of Trustee.




          The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may become a creditor of, or otherwise deal with, the Company or any of its Affiliates with the
same rights it would have if it were not Trustee. However, in the event that the Trustee acquires
any conflicting interest as described in the Trust Indenture Act of 1939 (as in effect at such
time), it must eliminate such conflict within 90 days, apply to the SEC for




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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 7.10 and 7.11 hereof.




Section 7.04. Trustee’s Disclaimer.




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




Section 7.05. 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 deliver to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in payment of principal,
premium, if any, interest or Additional Interest, if any, on any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.




Section 7.06. Reports by Trustee to Holders of the Notes.




          (a) Within 60 days after each May 31 beginning with the May 31 following the date hereof, and
for so long as Notes remain outstanding, the Trustee shall deliver to the Holders of the Notes a
brief report dated as of such reporting date that complies with TIA § 313(a) (but if no event
described in TIA § 313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA § 313(b). The Trustee shall
also transmit by mail all reports as required by TIA § 313(c).




          (b) A copy of each report at the time of its delivery to the Holders of Notes shall be
delivered 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 or any delisting thereof.




Section 7.07. Compensation and Indemnity.




          (a) The Company shall pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder in accordance with a written schedule provided
by the Trustee to the Company. 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.




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          (b) The Company shall indemnify the Trustee for, and hold it harmless against any and all
losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance
or administration of its duties under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company (including this Section 7.07) and defending itself against any
claim (whether asserted by either of 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 or willful
misconduct. 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 Company need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.




          (c) The obligations of the Company under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture and resignation or removal of the Trustee.




          (d) To secure the Company’s payment obligations in this Section, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture and resignation or removal of the Trustee.




          (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(a)(viii) and (ix) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.




Section 7.08. Replacement of Trustee.




          (a) 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 as provided in this
Section 7.08.




          (b) The Trustee may resign by notifying the Company 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 upon 30 days notice by so notifying the
Trustee and the Company in writing. The Company may remove the Trustee if:





     (i) the Trustee fails to comply with Section 7.10 hereof;




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




     (iii) a custodian or public officer takes charge of the Trustee or its property; or




     (iv) the Trustee becomes incapable of acting.



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




          (d) If a successor Trustee does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of Notes of at least 10%
in principal amount of the then outstanding Notes may petition at the expense of the Company any
court of competent jurisdiction for the appointment of a successor Trustee.




          (e) If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




          (f) 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 deliver 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 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.




Section 7.09. Successor Trustee by Merger, Etc.




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




Section 7.10. 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 $150.0
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 7.11. 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. The Trustee hereby waives any right to set-off any claim that it may have
against the Company in any capacity (other than as Trustee and Paying Agent) against



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any of the assets of the Company held by the Trustee; provided, however, that if the Trustee
is or becomes a lender of any other Indebtedness permitted hereunder to be pari passu with the
Notes, then such waiver shall not apply to the extent of such Indebtedness.




Section 7.12. No Representation by Trustee.




          The recitals and statements contained herein (except the name, address and jurisdiction of
organization of the Trustee) and in the Notes (other than the Trustee’s authentication of the
Notes) shall be taken as the recitals of and statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee shall not be responsible for and makes no
representations as to the validity or sufficiency of this Indenture or of the Notes (except the
Trustee’s certificates of authentication thereof) of any series. The Trustee shall not be
accountable for the use or application by the Company of the Notes or the proceeds thereof. The
Trustee shall have no duty to ascertain or inquire as to the performance of the Company’s covenants
in Article Four hereof or otherwise established by the terms of the Notes.




ARTICLE EIGHT

DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.




          The Company may, at its option and at any time, elect to have either Section 8.02 or 8.03
hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in
this Article Eight.




Section 8.02. Legal Defeasance and Discharge.




          Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to all outstanding
Notes and all obligations of the Guarantors shall be deemed to have been discharged with respect to
their obligations under 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 Note Guarantees, respectively, which shall thereafter be
deemed to be “outstanding” only for the purposes of Section 8.05 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 and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.04
hereof, and as more fully set forth in such Section, payments in respect of the principal of, or
interest or premium and Additional Interest, if any, on such Notes when such payments are due, (b)
the Company’s obligations with respect to such Notes under Article Two concerning issuing temporary
Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the Company’s
obligations under Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company’s and the



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Guarantors’ obligations in connection therewith and (d) this Article Eight. Subject to
compliance with this Article Eight, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.




Section 8.03. Covenant Defeasance.




          Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in Sections 4.07, 4.08, 4.09
(including the incorporation thereof into Section 5.01(a)(iii)), 4.10, 4.11, 4.12, 4.13, 4.14,
4.15, 4.16, 4.17 and 4.18 hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and the
Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company
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 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition,
upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(a)(iii) through (vii) shall not constitute Events of Default.




Section 8.04. Conditions to Legal or Covenant Defeasance.




          (a) The following shall be the conditions to the application of either Section 8.02 or 8.03
hereof to the outstanding Notes:





     (i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit
of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as shall be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of, or interest and
premium and Additional Interest, if any, on the outstanding Notes on the Stated Maturity or
on the applicable redemption date, as the case may be, and the Company must specify whether
the Notes are being defeased to maturity or to a particular redemption date;




     (ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel 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 Issue Date, there has been a change in the applicable U.S. federal income tax
law, in either case to the effect that, and based thereon such



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Opinion of Counsel shall confirm that, the Holders of the outstanding Notes shall not
recognize income, gain or loss for U.S. federal income tax purposes as a result of such
Legal Defeasance and shall be subject to U.S. 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;




     (iii) in the case of Covenant Defeasance, the Company shall have delivered to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes shall not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant Defeasance and shall be subject to U.S.
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;




     (iv) no Default or Event of Default shall have occurred and be continuing either: (a)
on the date of such deposit; or (b) insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on the 123rd
day after the date of deposit;




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




     (vi) the Company must have delivered to the Trustee an Opinion of Counsel to the
effect that, (1) assuming no intervening bankruptcy of the Company or any Guarantor between
the date of deposit and the 123rd day following the deposit and assuming that no Holder is
an “insider” of the Company under applicable bankruptcy law, after the 123rd day following
the deposit, the trust funds shall not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally, including Section 547 of the United States Bankruptcy Code and Section 15 of the
New York Debtor and Creditor Law and (2) the creation of the defeasance trust does not
violate the Investment Company Act of 1940;




     (vii) the Company must deliver to the Trustee an Officers’ 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 with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others;




     (viii) if the Notes are to be redeemed prior to their Stated Maturity, the Company
must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the
specified redemption date; and




     (ix) the Company must deliver to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.



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Section 8.05. Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.




          (a) Subject to Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee pursuant to Section 8.04 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 and Additional Interest, if any, and interest, but such money need not be segregated from
other funds except to the extent required by law.




          (b) The Company 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 8.04 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.




          (c) Anything in this Article Eight 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 8.04 hereof which, in the opinion of a
nationally recognized independent registered public accounting firm expressed in a written
certification thereof delivered to the Trustee (which may be the opinion delivered under Section
8.04(a) hereof), are in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.




Section 8.06. Repayment to the Company.




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




Section 8.07. Reinstatement.




     If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining,



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restraining or otherwise prohibiting such application, then the Company’s obligations under
this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof and, in the case of a Legal Defeasance, the Guarantors’
obligations under their respective Note Guarantees shall be revised and reinstated as though no
deposit had occurred pursuant to Section 8.04 hereof, in each case until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company 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.




Section 8.08. Survival of Rights.




          Notwithstanding the defeasance of the obligations under this Indenture, whether by Legal
Defeasance or by Covenant Defeasance, any obligations of the Company under Section 8.05(b) and
immunities of the Trustee under this Indenture shall survive.




ARTICLE NINE

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01. Without Consent of Holders of Notes.




          (a) Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors, and the
Trustee may amend or supplement this Indenture or the Notes without the consent of any Holder of a
Note:





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




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




     (iii) to provide for the assumption of the Company’s or any Guarantor’s obligations to
Holders of Notes in the case of a merger or consolidation or sale of all or substantially
all of the Company’s or such Guarantor’s assets;




     (iv) to make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not materially adversely affect the legal rights under this
Indenture of any such Holder;




     (v) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;




     (vi) to comply with the provisions described under Section 4.18 or Article Eleven;




     (vii) to evidence and provide for the acceptance of appointment of a successor
Trustee;



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     (viii) to provide for the issuance of Additional Notes in accordance with this
Indenture; or




     (ix) to conform the text of this Indenture, the Security Documents or the Notes to any
provision of the “Description of Notes” in the Offering Memorandum to the extent such
provision in the “Description of Notes” was intended to be a verbatim recitation of a
provision of the Indenture or the Security Documents.



          In addition, the Collateral Trustee and the Trustee may amend the relevant Security Documents
to add additional secured parties to the extent Liens securing Obligations held by such parties are
permitted under this Indenture and that after so securing any such additional secured parties, the
aggregate principal amount of Permitted Priority Debt does not exceed the Permitted Priority Debt
Cap and the aggregate principal amount of Permitted Priority Debt, Parity Lien Debt and Junior Lien
Debt outstanding does not exceed the Secured Debt Cap. The consent of the Holders is not necessary
under this Indenture to approve the particular form of any proposed amendment or supplement. It is
sufficient if such consent approves the substance of the proposed amendment or supplement.




          (b) Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of any documents requested under Section 7.02(b) hereof, the Trustee shall join with the
Company in the execution of any amended or supplemental Indenture authorized or permitted by the
terms of this Indenture and 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 9.02. With Consent of Holders of Notes.




          (a) Except as otherwise provided in this Section 9.02, the Company, the Guarantors and the
Trustee may amend or supplement this Indenture or the Notes with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default or compliance with any provision of this Indenture or the Notes may be waived with the
consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes
(including, without limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes).




          (b) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental hereto. If a record date
is fixed, the Holders on such record date, or its duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that unless such consent shall have become effective by
virtue of the requisite percentage having been obtained prior to the date which is 90 days after
such record date, any such consent previously given shall automatically and without further action
by any Holder be cancelled and of no further effect.





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          (c) Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amendment or supplement to this Indenture, and upon the
filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of
Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company in the execution of such amendment or supplement
unless such amendment or supplement 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 amendment or supplement.




          (d) It shall not be necessary for the consent of the Holders of Notes under this Section 9.02
to approve the particular form of any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.




          (e) After an amendment, supplement or waiver under this Section becomes effective, the Company
shall deliver to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to deliver such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amendment, supplement or
waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal
amount of the then outstanding Notes (including Additional Notes, if any) may waive compliance in a
particular instance by the Company with any provision of this Indenture or the Notes. However,
without the consent of each Holder affected, an amendment or waiver under this Section 9.02 may
not:





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




     (ii) reduce the principal of or change the fixed maturity of any Note or alter the
provisions, or waive any payment, with respect to the redemption of the Notes;




     (iii) reduce the rate of or change the time for payment of interest on any Note;




     (iv) waive a Default or Event of Default in the payment of principal of, or interest
or premium, or Additional Interest, 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 and a waiver of the payment default that resulted from
such acceleration);




     (v) make any Note payable in money other than U.S. dollars;




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




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



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     (viii) impair the right to institute suit for the enforcement of any payment on or
with respect to the Notes or the Note Guarantees;




     (ix) except as otherwise permitted under Sections 4.18 or Article Eleven or Article
Five, consent to the assignment or transfer by the Company or any Guarantor of any of their
rights or obligations under this Indenture;




     (x) contractually subordinate in right of payment the Notes or any Note Guarantee to
any other Indebtedness or make any changes to the priority of the Lien created under the
Security Documents that would adversely affect the Holders of the Notes; or




     (xi) make any change in the preceding amendment and waiver provisions.



          In addition, any amendment to, or waiver of, the provisions of this Indenture or any Security
Document that has the effect of releasing all or substantially all of the Collateral from the Liens
securing the Notes will require the consent of the Holders of at least 66
2/3% in aggregate principal amount of the Notes then outstanding.



Section 9.03. Compliance with Trust Indenture Act.




          Every amendment or supplement to this Indenture or the Notes shall be set forth in a document
that complies with the TIA as then in effect.



Section 9.04. Revocation and Effect of Consents.




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



Section 9.05. Notation on or Exchange of Notes.




          (a) 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 that reflect the amendment,
supplement or waiver.




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




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Section 9.06. Trustee to Sign Amendments, Etc.




          The Trustee shall sign any amendment or supplement to this Indenture or any Note authorized
pursuant to this Article Nine if the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. The Company may not sign an amendment or
supplemental Indenture or Note until its Board of Directors approves it. In executing any
amendment or supplement or Note, the Trustee shall be entitled to receive and (subject to Section
7.01 hereof) shall be fully protected in relying upon an Officers’ Certificate and an Opinion of
Counsel stating that the execution of such amendment or supplement is authorized or permitted by
this Indenture, and the Trustee shall be entitled to receive (i) a copy of any Board Resolution
passed pursuant to this Section 9.06, and (ii) evidence of any consent of the Holders provided in
accordance with Section 9.02.




ARTICLE TEN

COLLATERAL AND SECURITY



Section 10.01. Equal and Ratable Sharing of Collateral by Holders of Parity Lien Debt; Senior
Ranking of Permitted Priority Debt.




          (a) Notwithstanding: (1) anything contained in the Collateral Trust Agreement or in any other
Security Documents; (2) the time of incurrence of any Series of Parity Lien Debt or any Series of
Permitted Priority Debt; (3) the order or method of attachment or perfection of any Liens securing
any Series of Parity Lien Debt or any Series of Permitted Priority Debt; (4) the time or order of
filing or recording of financing statements or other documents filed or recorded to perfect any
Parity Lien or any Permitted Priority Lien upon any Collateral; (5) the time of taking possession
or control over any Collateral; (6) that any Parity Lien or any Permitted Priority Lien may not
have been perfected or may be or have become subordinated, by equitable subordination or otherwise,
to any other Lien; or (7) the rules for determining priority under any law governing relative
priorities of Liens, all Parity Liens granted at any time by the Company or any Guarantor shall
secure, equally and ratably, all present and future Parity Lien Obligations and all Parity Liens
(including any Liens securing the Notes and the Note Guarantees) at any time granted by the Company
or any Guarantor will be subject and subordinate to all Permitted Priority Liens securing the
Permitted Priority Debt Obligations.




          (b) Section 10.01(a) above is intended for the benefit of, and shall be enforceable as a third
party beneficiary by, each present and future holder of Parity Lien Obligations and Permitted
Priority Debt Obligations, each present and future Parity Lien Representative and Permitted
Priority Lien Representative and the Collateral Trustee as holder of Parity Liens.




Section 10.02. Ranking of Parity Liens




          The Parent shall, and shall cause each Restricted Subsidiary to, ensure that the Junior Lien
Documents, if any, provide that: (i) notwithstanding (A) anything to the contrary contained in the
Security Documents; (B) the time of incurrence of any Series of Parity Lien Debt; (C) the order or
method of attachment or perfection of any Liens securing any Series of Parity Lien Debt; (D) the
time or order of filing or recording of financing statements or other



102









 






documents filed or recorded to perfect any Lien upon any Collateral; (E) the time of taking
possession or control over any Collateral; (F) that any Parity Lien may not have been perfected or
may be or have become subordinated, by equitable subordination or otherwise, to any other Lien; or
(G) the rules for determining priority under any law governing relative priorities of Liens, all
Junior Liens at any time granted by the Company or any Guarantor shall be subject and subordinate
to all Parity Liens securing Parity Lien Obligations; and (ii) the provisions described in clause
(i) of this Section 10.02 are intended for the benefit of, and will be enforceable as a third party
beneficiary by, each present and future holder of Parity Lien Obligations, each present and future
Parity Lien Representative and the Collateral Trustee as holder of Parity Liens.




Section 10.03. Relative Rights




          The Parent shall, and shall cause each Restricted Subsidiary to, ensure that nothing in any
Junior Lien Document will:




          (a) impair, as between the Company and the Holders of the Notes, the obligation of the Company
to pay principal, premium, if any, and interest on the Notes in accordance with their terms or any
other obligation of the Company or any Guarantor under this Indenture;




          (b) affect the relative rights of Holders of Notes as against any other creditors of the
Company or any Guarantor (other than holders of Permitted Priority Liens, Junior Liens or other
Parity Liens);




          (c) restrict the right of any Holder of Notes 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 provisions of the Collateral Trust Agreement);




          (d) restrict or prevent any Holder of Notes or holder of other Parity Lien Obligations, the
Collateral Trustee or any other Person from exercising any of its rights or remedies upon a Default
or Event of Default not specifically restricted or prohibited by the provisions of the Collateral
Trust Agreement; or




          (e) restrict or prevent any Holder of Notes or holder of other Parity Lien Obligations, the
Trustee, the Collateral Trustee or any other Person from taking any lawful action in an insolvency
or liquidation proceeding not specifically restricted or prohibited by the provisions of the
Collateral Trust Agreement.




Section 10.04. Security Documents




          The due and punctual payment of the principal of, premium on, if any, and interest (including
any Additional Interest) on, the Notes when and as the same shall be due and payable, whether on an
interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of, premium on, if any, and interest (to the extent permitted by
law), on the Notes and performance of all other Obligations of the Company and the Guarantors to
the Holders of Notes or the Trustee under this Indenture and the Notes (including, without
limitation, the Note Guarantees), according to the terms hereunder or thereunder, are secured as
provided in the Security Agreement and the Collateral





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Trust Agreement, which the Company and the Guarantors have entered into simultaneously with
the execution of this Indenture and which are attached hereto as Exhibits G and H, respectively.
Each Holder of Notes, by its acceptance thereof, consents and agrees to the terms of the Security
Agreement and Collateral Trust Agreement (including, without limitation, the provisions providing
for (i) foreclosure and release of Collateral, and (ii) entering into an Intercreditor Agreement)
as the same may be in effect or may be amended from time to time in accordance with their terms and
authorizes and directs the Collateral Trustee and/or the Trustee (as the case may be) to enter into
the Security Agreement, the Collateral Trust Agreement and any other Security Document and to
perform its obligations and exercise its rights thereunder in accordance therewith. The Company
and the Guarantors will deliver to the Trustee copies of all documents delivered to the Collateral
Trustee pursuant to the Security Agreement and Collateral Trust Agreement, and will do or cause to
be done all such acts and things as may be necessary or proper, or as may be required by the
provisions of the Security Agreement or the Collateral Trust Agreement, to assure and confirm to
the Trustee and the Collateral Trustee the security interest in the Collateral contemplated hereby,
by the Security Agreement 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 and of the Notes secured hereby,
according to the intent and purposes herein expressed. Subject to the terms of the Security
Agreement, the Company and the Parent will take, and will cause their Subsidiaries to take, upon
request of the Trustee, any and all actions reasonably required to cause the Security Agreement to
create and maintain, as security for the Obligations of the Company and the Guarantors hereunder, a
valid and enforceable perfected Lien in and on all the Collateral, in favor of the Collateral
Trustee for the benefit of the Holders of Notes and future permitted Parity Lien Obligations,
superior to and prior to the rights of all third Persons other than holders of Permitted Prior
Liens and subject to no other Liens other than Permitted Liens.




Section 10.05. Additional Collateral; Acquisition of Assets or Property




          (a) Except as provided in Section 4.10(a)(iii)(B) hereof, in connection with the acquisition
(including, without limitation, through the designation, acquisition or creation of a new wholly
owned Domestic Restricted Subsidiary that guarantees any Indebtedness of the Parent, the Company or
any Subsidiary Guarantor) by the Parent, the Company or any Subsidiary Guarantor of any Property
comprising the Collateral hereafter, the Parent or the Company shall, or shall cause such
Subsidiary Guarantor, as the case may be, to, as promptly as reasonably practicable:





     (i) execute and deliver to the Collateral Trustee such Security Documents and take
such other actions as shall be necessary to create, perfect and protect a Lien in favor of
the Collateral Trustee on such assets or property (to the extent otherwise required to be
perfected in accordance with the terms of the Security Documents); and




     (ii) promptly deliver to the Collateral Trustee such Opinions of Counsel, if any, as
such Collateral Trustee may reasonably require with respect to the foregoing (including
opinions as to enforceability and perfection of security interests).



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Section 10.06. Recording and Opinions.




          The Company shall comply with the provisions of TIA §314(b) (including, without limitation,
the provision of an initial and annual Opinion of Counsel under TIA §314(b)), following
qualification of this Indenture pursuant to the TIA. Following such qualification, to the extent
the Company is required to furnish to the Trustee an Opinion of Counsel pursuant to TIA §314(b)(2),
the Company shall furnish such opinion not more than 60 but not less than 30 days prior to each
December 31.




Section 10.07. Release of Collateral.




     (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes and
Note Guarantees outstanding under this Indenture or any other Obligations under this Indenture, and
the right of the Holders of the Notes and such Obligations to the benefits and proceeds of the
Collateral Trustee’s Liens on the Collateral will terminate and be discharged:




     (i) upon satisfaction and discharge of this Indenture in accordance with the
provisions set forth in Article Twelve;




     (ii) upon a Legal Defeasance or Covenant Defeasance of the Notes in accordance with
the provisions set forth in Article Eight;




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




     (iv) in whole or in part, with the consent of the Holders of the requisite percentage
of Notes in accordance with the provisions set forth in Article Nine, and upon delivery of
instructions and any other documentation, in each case as required by this Indenture and
the Security documents, in a form satisfactory to the Collateral Trustee.



          (b) To the extent applicable, the Company will cause TIA §313(b), relating to reports, and TIA
§314(d), relating to the release of property or securities or relating to the substitution
therefore of any property or securities to be subjected to the Lien created by the Security
Documents, to be complied with. Any certificate or opinion required by TIA §314(d) may be made by
an Officer of the Company except in cases where TIA §314(d) requires that such certificate or
opinion be made by an independent Person, which Person shall be an independent appraiser or other
expert selected or reasonably satisfactory to the Trustee. Notwithstanding anything to the
contrary in this Section 10.07(b), the Company shall not be required to comply with all or any
portion of TIA §314(d) if it determines, in good faith based on advice of counsel, that under the
terms of TIA §314(d) and/or any interpretation or guidance as to the meaning thereof of the SEC and
its Staff, including “no action” letters or exemptive orders, all or any portion of TIA §314(d) is
inapplicable to released Collateral.




          (c) To the extent applicable, the Company shall furnish to the Trustee, prior to any proposed
release of Collateral pursuant to the Security Documents, all documents required by TIA §314(d).




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Section 10.08. Certificates of the Trustee.




     In the event that the Company wishes to release Collateral in accordance with this Indenture
or any Security Document, or if any Collateral is otherwise released in accordance therewith, and
if the Company has delivered the certificates and documents required by the Security Documents and
Section 10.07 hereof, the Trustee will 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 this Indenture, shall deliver a certificate to the Collateral Trustee
setting forth such determination.



Section 10.09. Disposition of Collateral Without Release




          (a) Notwithstanding Sections 10.07 and 10.08 hereof relating to releases of Collateral or the
provisions in the Collateral Trust Agreement relating to the release of the Collateral, but subject
to the other provisions of this Indenture, the Company and the Guarantors may, among other things,
without any release or consent by, or the delivery of any document or other instrument to, the
Collateral Trustee or the Trustee, conduct ordinary course activities with respect to the
Collateral, which do not individually or in the aggregate materially adversely affect the value of
the Collateral, including, without limitation:





     (i) selling or otherwise disposing of, in any transaction or series of related
transactions, any property subject to the Lien under any of the Security Documents that (x)
has become worn out, defective or obsolete, (y) is not used in the business, or (z) is not
useful in the business;




     (ii) abandoning, terminating, canceling, releasing or making alterations in or
substitutions of any leases or contracts subject to the Lien under any of the Security
Documents;




     (iii) surrendering or modifying any franchise, license or permit subject to the Lien
under any of the Security Documents that it may own or under which it may be operating;




     (iv) altering, repairing, replacing, substituting, changing the location or position
of and adding to its structures, machinery, systems, apparatus, equipment, tools or
implements, materials, supplies, fixtures and appurtenances or other similar property in
the ordinary course of business;




     (v) granting a nonexclusive license or sub-license of any intellectual property;




     (vi) selling, transferring or otherwise disposing of inventory in the ordinary course
of business;




     (vii) selling, collecting, liquidating, factoring or otherwise disposing of accounts
receivable in the ordinary course of business;



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     (viii) making cash payments (including for the scheduled repayment of Indebtedness)
from cash that is at any time part of the Collateral in the ordinary course of business
that are not otherwise prohibited by this Indenture and the Security Documents;




     (ix) abandoning any intellectual property which is not or no longer used or useful in
the Company’s business;




     (x) selling, transferring or otherwise disposing of inventory, equipment or other
property to Designated Entities or Joint Venture Entities in the ordinary course of
business; and




     (xi) selling, transferring or otherwise disposing of Cash Equivalents;


and in each such case the Collateral Trustee’s Liens upon the applicable Collateral will no longer
secure the Notes and Note Guarantees outstanding under this Indenture or any other Obligations
under this Indenture to the extent provided by Section 4.1(a)(2) of the Collateral Trust Agreement.




          (b) The Company shall deliver to the Trustee and to the Collateral Trustee, within 60 calendar
days following the end of each six-month period ending on June 30 or December 31 of any year, an
Officers’ Certificate to the effect that all releases and withdrawals during the preceding
six-month period in which no release or consent of the Trustee or Collateral Trustee was obtained
were in the ordinary course of the Company’s and the Guarantors’ business and that the net proceeds
thereof, if any, were used as permitted by this Indenture and the Security Documents.



Section 10.10. Authorization of Actions to Be Taken by the Trustee Under the Security
Documents.




          (a) Subject to the provisions of the Security Documents, the Trustee may (but without any
obligation to do so), in its sole discretion and without the consent of the Holders of Notes,
direct, on behalf of the Holders of Notes, the Collateral Trustee to, take all actions it deems
necessary or appropriate in order to:





     (i) enforce any of the terms of the Security Agreement; and




     (ii) collect and receive any and all amounts payable in respect of the Obligations of
the Company hereunder.



          (b) The Trustee will have power (but without any obligation) to direct, on behalf of the
Holders of the Notes, the Collateral Trustee 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 Security Agreement or this Indenture, and such suits and
proceedings as the Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders of Notes in the 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




107









 







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



Section 10.11. Authorization of Receipt of Funds by the Trustee under the Security
Agreement.




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




Section 10.12. Lien Sharing and Priority Confirmation




          The Trustee agrees for itself and on behalf of the Holders of the Notes, and by holding Notes
each such Holder shall be deemed to agree:




          (a) for the enforceable benefit of all holders of each existing and future Series of Parity
Lien Debt and each existing and future Parity Lien Representative, that all Parity Lien Obligations
will be and are secured equally and ratably by all Parity Liens at any time granted by the Company
or any Guarantor to secure any Obligations in respect of the Indenture, the Notes and the Note
Guarantees, and that all such Parity Liens will be enforceable by the Collateral Trustee for the
benefit of all holders of Parity Lien Obligations equally and ratably;




          (b) for the enforceable benefit of all holders of each existing and future Series of Parity
Lien Debt and Series of Junior Lien Debt, and each existing and future Parity Lien Representative
and Junior lien Representative, that the holders of Obligations in respect of the Indenture, the
Notes and the Note Guarantees are bound by the provisions of the Collateral Trust Agreement,
including the provisions relating to the ranking of Parity Liens and the order of application of
proceeds from enforcement of Parity Liens;




          (c) for the enforceable benefit of all holders of each existing and future Series of Permitted
Priority Debt and each existing and future Permitted Priority Lien Representative, that the holders
of Obligations in respect of the Indenture, the Notes and the Note Guarantees are bound by the
provisions of the Intercreditor Agreement (whether then in existence or thereafter entered into),
including the provisions relating to the ranking of Liens and the order of application of proceeds
from the enforcement of Liens as set forth therein; and




          (d) to consent to and direct the Collateral Trustee to perform its obligations under the
Collateral Trust Agreement and the other security documents in respect of the Indenture, the Notes
and the Note Guarantees (including the Intercreditor Agreement).




Section 10.13. Voting




          In connection with any matter under the Collateral Trust Agreement requiring a vote of holders
of Secured Debt, the Holders shall cast their votes in accordance with this Indenture. The amount
of the Notes to be voted by the Holders will equal the aggregate outstanding principal amount of
the Notes. Following and in accordance with the outcome of the applicable vote under this
Indenture, the Trustee shall vote the total amount of the Notes as a block in respect of any vote
under the Collateral Trust Agreement.




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Section 10.14. Termination of Security Interest.




          Upon the full and final payment and performance of all Obligations of the Company under this
Indenture and the Notes or upon Legal Defeasance, Covenant Defeasance or satisfaction and discharge
of this Indenture in accordance with Article Eight or Article Twelve hereof, the Trustee will, at
the request of the Company, deliver a certificate to the Collateral Trustee stating that such
Obligations have been paid in full, and instruct the Collateral Trustee to release the Liens
pursuant to this Indenture and the Security Documents.




Section 10.15. Further Assurances; Insurance.




     (a) The Company and each of the Guarantors shall do or cause to be done all acts and things
that may be required, or that the Collateral Trustee from time to time may reasonably request, to
assure and confirm that the Collateral Trustee holds, for the benefit of the Secured Debt
Representatives and holders of Secured Debt Obligations, duly created and enforceable and perfected
Liens upon the Collateral (including any property or assets that are acquired or otherwise become
Collateral after the Notes are issued), in each case, as contemplated by, and with the Lien
priority required under, the Secured Debt Documents.



     (b) Upon the reasonable request of the Collateral Trustee or any Secured Debt Representative
at any time and from time to time, the Company and each of the Guarantors shall promptly execute,
acknowledge and deliver such security documents, instruments, certificates, notices and other
documents, and take such other actions as may be reasonably required, or that the Collateral
Trustee may reasonably request, to create, perfect, protect, assure or enforce the Liens and
benefits intended to be conferred, in each case as contemplated by the Secured Debt Documents for
the benefit of the holders of Secured Debt Obligations.



     (c) The Company and the Guarantors shall (1) keep their properties adequately insured at all
times by financially sound and reputable insurers; (2) maintain such other insurance, to such
extent and against such risks (and with such deductibles, retentions and exclusions), including
fire and other risks insured against by extended coverage, as is customary with companies in the
same or similar businesses operating in the same or similar locations, including public liability
insurance against claims for personal injury or death or property damage occurring upon, in, about
or in connection with the use of any properties owned, occupied or controlled by them; (3) maintain
such other insurance as may be required by law; and (4) maintain such other insurance as may be
required by the Security Documents.



     (d) The Collateral Trustee shall be named as an additional insured and loss payee as its
interests may appear, to the extent required by the Security Documents. Upon the request of the
Collateral Trustee, the Company and the Guarantors shall furnish to the Collateral Trustee full
information as to their property and liability insurance carriers.



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ARTICLE ELEVEN

NOTE GUARANTEES




Section 11.01. Guarantee.




          (a) Subject to this Article Eleven, each of the Guarantors hereby, jointly and severally, and
fully and 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, if any, and interest and Additional Interest, if
any, on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest
and Additional Interest, if any, on the Notes, if lawful (subject in all cases to any applicable
grace period provided herein), and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder shall 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, the same shall 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. Each Guarantor agrees that this is a guarantee of payment and not a
guarantee of collection.




          (b) The Guarantors hereby agree that, to the maximum extent permitted under applicable law,
their obligations hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Subject to Section 6.06 hereof, each Guarantor hereby waives 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 covenants that this Note Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and this Indenture.




          (c) 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 any of the Company or the Guarantors, any amount paid by any of them to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.




          (d) Each Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article




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Six 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 Six
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 11.02. Limitation on Guarantor Liability.




          Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to
such Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the
Guarantors hereby irrevocably agree that the obligations of such Guarantor shall be limited to the
maximum amount as will, after giving effect to 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 Eleven, result in the
obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or
conveyance.




Section 11.03. Execution and Delivery of Note Guarantee.



          (a) To evidence its Note Guarantee set forth in Section 11.01, each Guarantor hereby agrees
that a notation of such Note Guarantee substantially in the form included in Exhibit E shall be
endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee
and that this Indenture shall be executed on behalf of such Guarantor by its President or one of
its Vice Presidents.




          (b) Each Guarantor hereby agrees that its Note Guarantee set forth in Section 11.01 shall
remain in full force and effect notwithstanding any failure to endorse on each Note a notation of
such Note Guarantee.




          (c) If an Officer whose signature is on this Indenture or on the Note Guarantee no longer
holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is
endorsed, the Note Guarantee shall be valid nevertheless.




          (d) 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.




          (e) If required by Section 4.18 hereof, the Company shall cause such Subsidiaries to execute
supplemental indentures to this Indenture and Note Guarantees in accordance with Section 4.18
hereof and this Article Eleven, to the extent applicable.




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Section 11.04. Guarantors May Consolidate, Etc., on Certain Terms.



          (a) A Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of
its assets to, or consolidate with or merge with or into (whether or not such Subsidiary Guarantor
is the surviving Person), another Person, other than the Parent, the Company or another Subsidiary
Guarantor, unless:





     (i) immediately after giving effect to that transaction, no Default or Event of
Default exists; and




     (ii) either:




     (A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger (if other than the
Subsidiary Guarantor) is organized or existing under the laws of the United States,
any state thereof or the District of Columbia and assumes all the obligations of
that Subsidiary Guarantor under this Indenture, the Security Documents, its Note
Guarantee and the Registration Rights Agreement pursuant to a supplemental indenture
satisfactory to the Trustee; or




     (B) such sale or other disposition or consolidation or merger does not violate
the provisions of Section 4.10 hereof.



          (b) In case of any such consolidation, merger, sale or conveyance governed by Section
11.04(a)(ii)(A), upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee
endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions
of this Indenture to be performed by a Subsidiary Guarantor, such successor Person shall succeed to
and be substituted for a Subsidiary Guarantor with the same effect as if it had been named herein
as a Subsidiary Guarantor. Such successor Person thereupon may cause to be signed any or all of
the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so
issued shall in all respects have the same legal rank and benefit under this Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as
though all of such Note Guarantees had been issued at the date of the execution hereof.




Section 11.05. Release of a Subsidiary Guarantor.




          (a) A Subsidiary Guarantor shall be automatically released from its obligations under its Note
Guarantee and the Security Documents, and the Collateral owned by such Guarantor shall be
automatically released from the Lien under the Security Documents: (i) in connection with any sale
or other disposition of Capital Stock of such Subsidiary Guarantor to a Person that is not (either
before or after giving effect to such transaction) a Restricted Subsidiary of the Parent, if such
sale or disposition does not violate Section 4.10 hereof and such Subsidiary Guarantor would no
longer be a Subsidiary as a result of such sale or other disposition; provided that such Subsidiary
Guarantor is released from all Guarantees of any other Indebtedness of the Company or any other
Guarantor; (ii) if the Parent designates such



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Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the applicable
provisions of this Indenture; or (iii) upon legal or covenant defeasance or satisfaction and
discharge of the Notes as permitted under this Indenture.




          (b) Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of
Counsel to the effect that one of the foregoing requirements has been satisfied and the conditions
to the release of a Guarantor under this Section 11.05 have been met, the Trustee shall execute any
documents reasonably required in order to evidence the release of such Subsidiary Guarantor from
its obligations under its Note Guarantee.




          (c) Any Subsidiary Guarantor not released from its obligations under its Note Guarantee shall
remain liable for the full amount of principal of and interest and Additional Interest, if any, on
the Notes and for the other obligations of any Subsidiary Guarantor under this Indenture as
provided in this Article Eleven.




ARTICLE TWELVE

SATISFACTION AND DISCHARGE




Section 12.01. Satisfaction and Discharge.




          (a) This Indenture shall be discharged and shall cease to be of further effect as to all Notes
issued thereunder, when:




          (i) 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 mailing of a notice of redemption or
otherwise or shall become due and payable within one year and the Company or any of
the Guarantors has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts as
shall 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, premium and Additional Interest, if any, and accrued
interest to the date of maturity or redemption;




     (ii) no Default or Event of Default shall have occurred and be continuing on the date
of any deposit referred to in Section 12.01(a)(i)(B) or shall occur as a result of such
deposit and such deposit shall not result in a breach or violation of, or constitute a
default under, any other instrument to which the Company or any of the Guarantors is a
party or by which the Company or any of the Guarantors is bound;



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     (iii) the Company or any of the Guarantors has paid or caused to be paid all sums
payable by it under this Indenture; and




     (iv) 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.



          (b) In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel
(which opinion may be subject to customary assumptions and exclusions) to the Trustee stating that
all conditions precedent to satisfaction and discharge have been satisfied.




          (c) Notwithstanding the above, the Trustee shall pay to the Company from time to time upon its
request any cash or Government Securities held by it as provided in this section which, in the
opinion of a nationally recognized independent registered public accounting firm expressed in a
written certification delivered to the Trustee, are in excess of the amount thereof that would then
be required to be deposited to effect a satisfaction and discharge under this Article Twelve.





			
	Section 12.02.	 	Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.





          Subject to Section 12.03 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee pursuant to Section 12.01 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 and
Additional Interest, if any, and interest, but such money need not be segregated from other funds
except to the extent required by law.




Section 12.03. Repayment to the Company.




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




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Section 12.04. Survival.




          Notwithstanding the discharge of this Indenture pursuant to this Article Twelve, the
immunities of the Trustee under this Indenture shall survive.




ARTICLE THIRTEEN

MISCELLANEOUS




Section 13.01. Trust Indenture Act Controls.




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




Section 13.02. Notices.




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



If to the Company or any Guarantor:



Cricket Communications, Inc.

10307 Pacific Center Court

San Diego, California 92121

Facsimile: (858) 882-6080

Attention: Secretary



With copies to:



Latham & Watkins LLP

12636 High Bluff Drive, Suite 400

San Diego, California 92130

Facsimile: (858) 523-5450

Attention: Barry Clarkson, Esq.



If to the Trustee:



Wilmington Trust FSB

c/o Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, DE 19890-1615

Facsimile: (302) 636-4145

Attention: Corporate Capital Markets




          (b) The Company the Guarantors or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.




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          (c) 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; three Business Days after
being deposited in the mail, postage prepaid, if mailed; 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.




          (d) Any notice or communication to a Holder shall be delivered by first class mail, certified
or registered, return receipt requested, electronic transmission, 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 delivered to any Person described in TIA § 313(c), to the
extent required by the TIA. Failure to deliver a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders.




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




          (f) If the Company delivers a notice or communication to Holders, it shall deliver a copy to
the Trustee and each Agent at the same time.




Section 13.03. Communication by Holders of Notes with Other Holders of Notes.




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




Section 13.04. Certificate and Opinion as to Conditions Precedent.




          (a) Upon any request or application by the Company to the Trustee to take any action under
this Indenture (except with respect to the initial issuance of the Notes), the Company shall
furnish to the Trustee:





     (i) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 13.05 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




     (ii) an Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 13.05 hereof) stating
that, in the opinion of such counsel (who may rely upon and Officers’ Certificate as to
matters of fact), all such conditions precedent and covenants have been satisfied.



Section 13.05. Statements Required in Certificate or Opinion.




          (a) 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:




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




     (ii) 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;




     (iii) 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




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



Section 13.06. 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 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders.




          No director, officer, employee, incorporator, stockholder, member, manager or partner of the
Company or any Guarantor, as such, shall have any liability for any obligations of the Company or
the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. This 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 13.08. Governing Law.




          THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE
NOTES AND THE NOTE GUARANTEES.




Section 13.09. Consent to Jurisdiction.




          Any legal suit, action or proceeding arising out of or based upon this Indenture or the
transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of
the United States of America located in the City of New York or the courts of the State of New York
in each case located in the City of New York (collectively, the “Specified Courts”), and each party
irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail (to the extent allowed
under any applicable statute or rule of court) to such party’s address set forth above shall be
effective service of process for any suit, action or other proceeding brought in any such court.
The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,
action or other proceeding in the Specified Courts and




117









 







irrevocably and unconditionally waive and agree not to plead or claim in any such court has
been brought in an inconvenient forum.




Section 13.10. 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 any of its Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.




Section 13.11. Successors.




          All agreements of the Company in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors. All agreements of each
Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section
11.04.




Section 13.12. Severability.




          In case any provision in this Indenture or the Notes 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 13.13. 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 13.14. Acts of Holders.




          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by the Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by
agents duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company if made in the manner provided in this Section
13.14.




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




118









 







of the Person executing the same, may also be proved in any other manner which the Trustee
deems sufficient.




          (c) Notwithstanding anything to the contrary contained in this Section 13.14, the principal
amount and serial numbers of Notes held by any Holder, and the date of holding the same, shall be
proved by the register of the Notes maintained by the Registrar as provided in Section 2.04 hereof.




          (d) If the Company shall solicit from the Holders of the Notes any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by
or pursuant to a resolution of its Board of Directors, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding
TIA § 316(c), such record date shall be the record date specified in or pursuant to such
resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation
of Holders generally in connection therewith or the date of the most recent list of Holders
forwarded to the Trustee prior to such solicitation pursuant to Section 2.06 hereof and not later
than the date such solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on such record date shall
be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion
of the then outstanding Notes have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that purpose the then
outstanding Notes shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than eleven months after
the record date.




          (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note
issued upon the registration or transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.




          (f) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Note may do so itself with regard to all or any part of the principal
amount of such Note or by one or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such principal amount.




Section 13.15. 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 its successors hereunder, and
the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.




119









 








Section 13.16. 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.




Section 13.17. Payment Date Other Than a Business Day.




          If an Interest Payment Date (as defined in the Exhibit A hereof), redemption date, payment
date, Stated Maturity or date of maturity of any Note shall not be a Business Day, then payment of
principal of, premium, if any, or interest or Additional Interest, if any, on such Note, as the
case may be, need not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the Interest Payment Date, redemption date, payment
date, Stated Maturity or date of maturity of such Note; provided that no interest shall accrue for
the period from and after such Interest Payment Date, redemption date, payment date, Stated
Maturity or date of maturity of such Note, as the case may be.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]





120









 








SIGNATURES




	 	 	 	 	 
	 	Very truly yours,



Cricket Communications, Inc.

 	 
	 	By:  	/s/ S. Douglas Hutcheson
 	 
	 	 	Name:  	S. Douglas Hutcheson 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 
	 	Leap Wireless International, Inc.

 	 
	 	By:  	/s/ S. Douglas Hutcheson
 	 
	 	 	Name:  	S. Douglas Hutcheson 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 



	 	 	 	 	 	 	 
	 	 	Cricket Licensee (Reauction), LLC	 	 
	 	 	Cricket Licensee I, LLC	 	 
	 	 	Cricket License 2007, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ S. Douglas Hutcheson	 	 
	 

	 	Name:
	 	 

S. Douglas Hutcheson
	 	 
	 

	 	Title:
	 	President and Chief Executive Officer	 	 






[Indenture Signature Page]




 









 






	 	 	 	 	 
	 	Wilmington Trust FSB,

as Trustee

 	 
	 	By:  	/s/  Michael G. Oller, Jr.
 	 
	 	 	Name:  	Michael G. Oller, Jr. 	 
	 	 	Title:  	Assistant Vice President 	 
	 



[Indenture Signature Page]





 











 





EXHIBIT A




[Face of Note]




[INSERT APPROPRIATE LEGENDS]




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	No.
	 	**$                                        **






CRICKET COMMUNICATIONS, INC.




7.75% Senior Secured Notes due 2016



Issue Date:




          Cricket Communications, Inc., a Delaware corporation (the “Company,” which term includes any
successor under this Indenture hereinafter referred to), for value received, promises to pay to
                    , or its registered assigns, the principal sum of                     
($                     ) on May 15, 2016.



Interest Payment Dates: May 15 and November 15, commencing November 15, 2009.



Record Dates: May 1 and November 1.




          Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.




[ATTACH NOTATION OF GUARANTEE FOR EACH GUARANTOR]





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          IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officers.




	 	 	 	 	 	 	 
	 	 	CRICKET COMMUNICATIONS, INC.  
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






(Trustee’s Certificate of Authentication)



This is one of the 7.75% Senior Secured Notes due 2016 described in the within-mentioned Indenture.




Dated:




	 	 	 	 	 
	WILMINGTON TRUST FSB,	 	 
	 
	 	 	 	 
	as Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






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[Reverse Side of Note]




CRICKET COMMUNICATIONS, INC.


7.75% Senior Secured Notes due 2016




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




          1. Interest. The Company promises to pay interest on the principal amount of this Note at
7.75% per annum from the date hereof until maturity and shall pay the Additional Interest, if any,
payable pursuant to Section 8 of the Registration Rights Agreement referred to below. The Company
shall pay interest and Additional Interest, if any, 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 the Notes shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of original 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 November 15, 2009. The Company shall pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess
of the rate then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest
(without regard to any applicable grace periods) from time to time on demand at the same rate to
the extent lawful. Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.




          2. Method of Payment. The Company shall pay interest on the Notes (except defaulted interest)
and Additional Interest, if any, to the Persons who are registered Holders of Notes at the close of
business on the record date immediately preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date, except as provided in
Section 2.13 of the Indenture with respect to defaulted interest. The Notes shall be payable as to
principal, premium and Additional Interest, if any, and interest at the office or agency of the
Company maintained for such purpose or, at the option of the Company, payment of interest and
Additional Interest, if any, 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 shall be required with respect to principal of and interest, premium and Additional
Interest, if any, on, all Global Notes and to any Holder of Notes 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. If a payment date is a date other than a Business Day at a place of
payment, payment may be made at that place on the next succeeding day that is a Business Day and no
interest shall accrue for the intervening period.




          3. Paying Agent and Registrar. Initially, the Trustee under the Indenture shall act as Paying
Agent and Registrar. The Company may change any Paying Agent or



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Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any
such capacity.




          4. Indenture. The Company issued the Notes under an Indenture dated as of June 5, 2009
(“Indenture”) among the Company, the Guarantors 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. The Notes are subject to all such terms, and Holders are
referred to the Indenture and such 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 Indenture pursuant to which this Note is issued
provides that an unlimited aggregate principal amount of Additional Notes may be issued thereunder.




          5. Optional Redemption. (a) Except as set forth in paragraphs (b) and (c) below, the Company
shall not have the option to redeem any Notes prior to May 15, 2012. On or after May 15, 2012, the
Company may redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice,
at the redemption prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Additional Interest, if any, thereon to the applicable redemption
date (subject to the right of Holders on the relevant record date to receive interest due on the
related interest payment date), if redeemed during the twelve-month period beginning on May 15 of
the years indicated below:




	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	105.813	%
	2013
	 	 	103.875	%
	2014
	 	 	101.938	%
	2015 and thereafter
	 	 	100.000	%






          (b) At any time prior to May 15, 2012, the Company may (on any one or more occasions) redeem
up to 35% of the aggregate principal amount of Notes issued under the Indenture (including any
Additional Notes) at a redemption price of 107.750% of the principal amount thereof, plus accrued
and unpaid interest and Additional Interest, if any, to the redemption date (subject to the right
of Holders on the relevant record date to receive interest due on the related interest payment
date), with the net cash proceeds of one or more Equity Offerings; provided that (A) at least 50%
of the aggregate principal amount of Notes issued under the Indenture (including any Additional
Notes) remains outstanding immediately after the occurrence of such redemption (excluding Notes
held by the Company and its Affiliates); and (B) the redemption must occur within 90 days of the
date of the closing of such Equity Offering.




          (c) At any time prior to May 15, 2012, the Company may redeem all or part of the Notes upon
not less than 30 nor more than 60 days’ prior notice at a redemption price equal to the sum of
(i) 100% of the principal amount thereof, plus (ii) the Applicable Premium as of the date of
redemption, plus (iii) accrued and unpaid interest and Additional Interest, if any, to the date of
redemption (subject to the right of Holders on the relevant record date to receive interest due on
the related interest payment date).




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          6. Repurchase at Option of Holder. (a) If a Change of Control occurs, each Holder of Notes
shall have the right to require the Company to repurchase all or any part (equal to $2,000 or an
integral multiple of $1,000 in excess thereof) of that Holder’s Notes pursuant to an offer by the
Company (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer
payment (a “Change of Control Payment”) in cash equal to not less than 101% of the aggregate
principal amount of Notes repurchased plus accrued and unpaid interest and Additional Interest, if
any, thereon, to the date of repurchase (the “Change of Control Payment Date,” which date shall be
no earlier than the date of such Change of Control). No later than 30 days following any Change of
Control, the Company shall mail a notice to each Holder describing the transaction or transactions
that constitute the Change of Control and offering to repurchase Notes on the Change of Control
Payment Date specified in such notice, which date shall be no earlier than 30 days and no later
than 60 days from the date such notice is mailed, pursuant to the procedures required by the
Indenture and described in such notice.




          (b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Parent or
its Restricted Subsidiaries may apply such Net Proceeds (or any portion thereof) at its option: (i)
to the extent that such Net Proceeds represent proceeds of Collateral, (A) to repay, prepay,
defease, redeem, purchase or otherwise retire Permitted Priority Debt (and, in the case of
revolving loans and other similar obligations, permanently reduce the commitment thereunder) or (B)
to repay, prepay, defease, redeem, purchase or otherwise retire Parity Lien Debt (other than the
Notes) (and, in the case of revolving loans and other similar obligations, permanently reduce the
commitment thereunder) on a pro rata basis, but only up to an aggregate principal amount equal to
such Net Proceeds to be used to repay Indebtedness pursuant to this clause (b)(i)(B) multiplied by
a fraction, the numerator of which is the aggregate principal amount of such Indebtedness to be
repaid, prepaid, defeased, redeemed, purchased or otherwise retired and the denominator of which is
the aggregate principal amount of all Parity Secured Debt, based on amounts outstanding on the date
of closing of such Asset Sale; provided that the Company uses the remaining Net Proceeds to be used
to repay Indebtedness pursuant to this clause (b)(i)(B) to make an offer to purchase (an “Asset
Sale Offer”) from the Holders of the Notes on a pro rata basis, an aggregate principal amount of
Notes equal to such remaining Net Proceeds at a purchase price equal to 100% of the principal
amount thereof, plus accrued interest and Additional Interest, if any, to the payment date; (ii) to
the extent that such Net Proceeds do not represent proceeds of Collateral, to repay, prepay,
defease, redeem, purchase or otherwise retire unsubordinated Indebtedness of the Company or any
Guarantor in each case owing to a person other than the Company or any Affiliate of the Company;
(iii) in the case of an Asset Sale by a Restricted Subsidiary that is not a Subsidiary Guarantor,
to repay, prepay, defease, redeem, purchase or otherwise retire Indebtedness of such Restricted
Subsidiary (and, in the case of revolving loans and other similar obligations, permanently reduce
the commitment thereunder); (iv) to the extent that such Net Proceeds do not represent proceeds of
Collateral, to repay, prepay, defease, redeem, purchase or otherwise retire Indebtedness secured by
a Permitted Lien on the assets that were the subject of such Asset Sale; or (v) to purchase
Replacement Assets (or enter into a binding agreement to purchase such Replacement Assets; provided
that (x) such purchase is consummated within 180 days after the date that is 365 days after the
receipt of such Net Proceeds from such Asset Sale and (y) if such purchase is not consummated
within the period set forth in subclause (x), the Net Proceeds not so applied will be deemed to be
Excess Proceeds (as defined below)); provided, further, that, to the extent that such Net Proceeds
represent proceeds of Collateral (except as provided in clause 4.10(a)(iii)(B) of the Indenture),



A1-6









 






the Parent or the applicable Subsidiary Guarantor will promptly grant to the Collateral
Trustee a security interest in such assets pursuant to and to the extent required by the Security
Documents. Pending the final application of any such Net Proceeds, the Parent or any of the
Restricted Subsidiaries may invest such Net Proceeds in any manner that is not prohibited by the
Indenture, provided that any such investment of the Net Proceeds that represents proceeds of
Collateral shall be in an account that is subject to a perfected security interest for the benefit
of the holders of the Secured Debt (except as provided in Section 4.10(a)(iii)(B) of the
Indenture).




          On the 366th day after an Asset Sale (or, in the event that a binding agreement has
been entered into as set forth in clause (v) of the preceding paragraph, the later date of
expiration of the 180-day period set forth in such clause (v)) or such earlier date, if any, as the
Parent determines not to apply the Net Proceeds relating to such Asset Sale set forth in the
preceding paragraph (each such date being referred as an “Excess Proceeds Trigger Date”), such
aggregate amount of Net Proceeds that has not been applied on or before the Excess Proceeds Trigger
Date as permitted in the preceding paragraph (“Excess Proceeds”) will be applied by the Company to
make an Asset Sale Offer to all Holders of Notes (and if required by the terms of any Applicable
Pari Passu Indebtedness, to the holders of such Applicable Pari Passu Indebtedness), to purchase
the maximum principal amount of Notes and such other Applicable Pari Passu Indebtedness that may be
purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to
100% of the principal amount of the Notes and such other Applicable Pari Passu Indebtedness plus
accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and shall be
payable in cash.




          The Company may defer the Asset Sale Offer until the aggregate unutilized Excess Proceeds
equals or exceeds $20.0 million, at which time the entire unutilized amount of Excess Proceeds (not
only the amount in excess of $20.0 million) will be applied as provided in the preceding paragraph.
If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent and its
Restricted Subsidiaries may use such Excess Proceeds for any purpose not otherwise prohibited by
the Indenture or the Security Documents. If the aggregate principal amount of Notes and such other
Applicable Pari Passu Indebtedness tendered in such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Notes and such other Applicable Pari Passu Indebtedness shall be purchased on a pro
rata basis based on the principal amount of Notes and such other Applicable Pari Passu Indebtedness
tendered, with such adjustments as may be needed so that only Notes in minimum amounts of $2,000
and integral multiples of $1,000 will be purchased. Upon completion of each Asset Sale Offer, any
remaining Excess Proceeds subject to such Asset Sale will no longer be deemed to be Excess
Proceeds.




          7. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in
denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes
may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company is not required to transfer or exchange any Note selected
for redemption. Also, the Company is not required to transfer or exchange any Note for a period of
15 days before a selection of Notes to be redeemed. Transfer may be restricted as provided in the
Indenture.




A1-7









 








          8. Persons Deemed Owners. The registered Holder of a Note shall be treated as its owner for
all purposes.




          9. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), and,
subject to Sections 6.04 and 6.07 of the Indenture, any existing Default or Event of Default or
compliance with any provision of the Indenture or the Notes may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding Notes (including,
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes). Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to, among other things, cure any ambiguity, defect or inconsistency, or to
make any change that does not adversely affect the legal rights under the Indenture of any such
Holder.




          10. Defaults and Remedies. In the case of an Event of Default arising from certain events of
bankruptcy or insolvency, with respect to the Parent, the Company, any Subsidiary Guarantor or any
Significant Subsidiary of the Parent, all outstanding Notes shall 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 by notice in writing
to the Company specifying the Event of Default. Holders of the Notes may not enforce the Indenture
or the Notes except as provided in the Indenture and the Security Documents. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of
the Notes notice of any Default or Event of Default (except a Default or Event of Default relating
to the payment of principal, premium, if any, interest or Additional Interest, if any) if it
determines that withholding notice is in their interest. Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may, on behalf of the
Holders of all of the Notes, rescind and annul a declaration of acceleration pursuant to Section
6.02 of the Indenture, and its consequences, and waive any related existing Default or Event of
Default (except a continuing Default or Event of Default in the payment of interest or Additional
Interest, if any, premium, if any, or on the principal of the Notes) if certain conditions are
satisfied.




          With respect to periods after May 15, 2012, in the case of any Event of Default occurring by
reason of any willful action or inaction taken or not taken by or on behalf of the Parent or the
Company with the intention of avoiding payment of the premium that the Company would have had to
pay if the Company then had elected to redeem the Notes pursuant to Section 3.07(a) of the
Indenture, an equivalent premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes. With respect to periods prior to May 15,
2012, if an Event of Default occurs during any time that the Notes are outstanding, by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the Parent or the Company
with the intention of avoiding the prohibition on redemption of the Notes, then the premium
specified in Section 3.07(c) of the Indenture that would have been



A1-8









 






payable upon redemption at the time the Event of Default occurs shall also become immediately
due and payable to the extent permitted by law upon the acceleration of the Notes.




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




          12. No Recourse Against Others. No director, officer, employee, incorporator, stockholder,
member, manager or partner of the Company or any Guarantor, as such, shall have any liability for
any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note
Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes 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.




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




          14. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes.
In addition to the rights provided to Holders under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes shall have all the rights set forth in the Registration
Rights Agreement dated as of June 5, 2009, between the Company, the Guarantors and the parties
named on the signature pages thereof or, in the case of Additional Notes, Holders of Restricted
Global Notes and Restricted Definitive Notes shall have the rights set forth in one or more
registration rights agreements, if any, between the Company, the Guarantors and the other parties
thereto, relating to rights given by the Company and the Guarantors to the purchasers of Additional
Notes (the “Registration Rights Agreement”).




          15. 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 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.




          16. Guarantee. The Company’s obligations under the Notes are fully and unconditionally
guaranteed, jointly and severally, by the Guarantors.




          17. Collateral. The obligations of the Company and the Guarantors under the Indenture, the
Notes and the Note Guarantees are secured by a Lien on the Collateral pursuant to the Security
Documents and may be subject to an Intercreditor Agreement as provided in the Collateral Trust
Agreement.




          18. Copies of Documents. The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be
made to:




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Cricket Communications, Inc.

10307 Pacific Center Court

San Diego, California 92121

Facsimile: (858) 882-6080

Attention: Secretary




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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).




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OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.14 of the Indenture, check the appropriate box below:




o Section 4.10                      o Section 4.14




          If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:




$                    




	 	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:	 	 
	 

	 	 	 	 	 	 	 	 
	 

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

	 	 	 	 	 	Tax Identification No.:	 	 
	 

	 	 	 	 	 	 	 	 
 





	 	 	 	 	 
	Signature Guarantee*:
	 	 	 	 
	 

	 	 

	 	 





 


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





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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:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount at	 	 
	 	 	Amount of Decrease in	 	Amount of Increase in	 	Maturity	 	Signature of
	 	 	Principal Amount at	 	Principal Amount at	 	of this Global Note	 	Authorized Officer
	 	 	Maturity	 	Maturity	 	Following such	 	of Trustee or
	Date of Exchange	 	of this Global Note	 	of this Global Note	 	decrease (or increase)	 	Note Custodian
	 
	 	 	 	 	 	 	 	 






A1-13









 








EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Cricket Communications, Inc.

10307 Pacific Center Court

San Diego, California 92121

Attention: Secretary




Wilmington Trust FSB

c/o Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, DE 19890-1615

Attention: Corporate Capital Markets




          Re: 7.75% Senior Secured Notes due 2016




          Reference is hereby made to the Indenture, dated as of June 5, 2009 (the “Indenture”), among
Cricket Communications, Inc., a Delaware corporation (the “Company”), the Guarantors, and
Wilmington Trust FSB, 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 Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount at maturity 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]




     o 1. Check if Transferee will take delivery of a beneficial interest in the 144A Global Note
or a Definitive Note Pursuant to Rule 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the United States 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
believed and 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 Definitive Note and in the
Indenture and the Securities Act.



B-1









 





          o 2. Check if Transferee will take delivery of a beneficial interest in a Legended
Regulation S Global Note, or a 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) the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person. 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 Legended
Regulation S Global Note and/or the Definitive Note and in the Indenture and the Securities Act.




          o 3. Check and complete if Transferee will take delivery of 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):




          o (a) such Transfer is being effected to the Company or a subsidiary thereof; or




          o (b) 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
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 D to the Indenture
and (2) if such transfer is in respect of an aggregate principal amount of Notes less than
$100,000, 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 Definitive Notes
and in the Indenture and the Securities Act.




          4. Check if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.




B-2









 








     o (a) 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.



     o (b) 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, in the case of a transfer from a Restricted Global Note
or a Restricted Definitive Note, the Transferor hereby further certifies that (a) 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, (b) 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, (c) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (d) the transfer is not being made to a U.S. Person or for
the account or benefit of a U.S. Person, 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.



     o (c) 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.



B-3









 





          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.




	 	 	 	 	 	 	 
	 

	 	Dated:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Insert Name of Transferor]
	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



B-4









 






	 	 	 	 	 



ANNEX A TO CERTIFICATE OF TRANSFER





	1.	 	The Transferor owns and proposes to transfer the following:





[CHECK ONE OF (A) OR (B)]





	 	o	 	(A) A BENEFICIAL INTEREST IN THE:






	 	(i)	 	 144A Global Note (CUSIP [           ]); or
	 
	 	(ii)	 	Regulation S Global Note (CUSIP [           ]); or






	 	o	 	(B) A RESTRICTED DEFINITIVE NOTE.






	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE]





	 	o	 	(A) A BENEFICIAL INTEREST IN THE:






	 	(i)	 	144A Global Note (CUSIP [           ]); or
	 
	 	(ii)	 	 Regulation S Global Note (CUSIP [           ]); or
	 
	 	(iii)	 	Unrestricted Global Note (CUSIP [           ]); or






	 	o	 	(B) A RESTRICTED DEFINITIVE NOTE; OR
	 
	 	o	 	(C) AN UNRESTRICTED DEFINITIVE NOTE,




in accordance with the terms of the Indenture.





B-5









 








EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Cricket Communications, Inc.

10307 Pacific Center Court

San Diego, California 92121

Attention: Secretary




Wilmington Trust FSB

c/o Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, DE 19890-1615

Attention: Corporate Capital Markets




          Re: 7.75% Senior Secured Notes due 2016




          Reference is hereby made to the Indenture, dated as of June 5, 2009 (the “Indenture”), among
Cricket Communications, Inc., a Delaware corporation (the “Company”), the Guarantors and Wilmington
Trust FSB, 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 at maturity 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




     o (a) 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 at maturity, 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 United States 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.



     o (b) 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



C-1









 







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.



     o (c) 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 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.



     o (d) 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




     o (a) 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 at maturity,
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.



     o (b) 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, :




C-2









 








          o Regulation S Global Note, :



with an equal principal amount at maturity, 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.




	 	 	 	 	 	 	 
	 

	 	Dated:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Insert Name of Transferor]
	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




C-3









 








EXHIBIT D




FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




Cricket Communications, Inc.

10307 Pacific Center Court

San Diego, California 92121

Attention: Secretary




Wilmington Trust FSB

c/o Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, DE 19890-1615

Attention: Corporate Capital Markets




          Re: 7.75% Senior Secured Notes due 2016




          Reference is hereby made to the Indenture, dated as of June 5, 2009 (the “Indenture”), among
Cricket Communications, Inc., a Delaware corporation (the “Company”), the Guarantors and Wilmington
Trust FSB, 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 at
maturity of:




          (a) o 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 United States 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:






     (i)(a) to a person whom we reasonably believe is a qualified institutional buyer (as
defined in Rule 144A under the securities act) in a transaction meeting the requirements of
Rule 144A, (b) in a transaction meeting the requirements of Rule 144 under the



D-1 









 





Securities Act, (c) outside the United States to a non-U.S. person in a transaction
meeting the requirements of Rule 903 or 904 under the Securities Act, (d) to an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2) (3) or (7) of the
Securities Act (an “Institutional Accredited Investor”)) that, prior to such transfer,
furnishes the trustee a signed letter substantially in the form of this letter and, if such
transfer is in respect of an aggregate principal amount of Notes less than $100,000, an
Opinion of Counsel acceptable to the issuer 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 Company so
requests),




     (ii) to the Company, or




     (iii) 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 we further agree to provide to any person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements 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 you and the Company such certifications, legal opinions and other
information as you 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.




          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.




          You 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.




	 	 	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	          [Insert Name of Accredited Investor]	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

Name:
	 	 
	 

	 	 	 	 	 	 	 	Title:	 	 







D-2 









 








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 June 5, 2009 (the “Indenture”)
among Cricket Communications, Inc., the other Guarantors (as defined in the Indenture) and
Wilmington Trust FSB, as trustee (the “Trustee”), (a) the due and punctual payment of the principal
of, premium, if any, and interest and Additional Interest, if any, on the Notes (as defined in the
Indenture), whether at maturity, by acceleration, redemption or otherwise, and the due and punctual
payment of interest on overdue principal premium, if any, and interest and Additional Interest, if
any, on the Notes, if lawful (subject in all cases to any applicable grace period provided herein),
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 the Notes and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other obligations, 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 of Notes and to the Trustee pursuant to the Note Guarantee and the
Indenture are expressly set forth in Article Eleven of the Indenture and reference is hereby made
to the Indenture for the precise terms of the Note Guarantee. Each Holder of a Note, by accepting
the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee
attorney-in-fact of such Holder for such purpose.




E-1









 








          IN WITNESS HEREOF, each Guarantor has caused this Notation of Guarantee to be signed manually
or by facsimile by its duly authorized officer.




	 	 	 	 	 	 	 
	 	 	[NAME OF GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 







E-2









 








EXHIBIT F




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS




          Supplemental Indenture (this “Supplemental Indenture”), dated as of                      , among
                     (the “Guaranteeing Subsidiary”), a subsidiary of Cricket Communications, Inc.
(or its permitted successor), a Delaware corporation (the “Company”), and Wilmington Trust FSB (or
its permitted successor), as trustee under the Indenture referred to below (the “Trustee”).




W I T N E S S E T H




          WHEREAS, the Company and the other Guarantors party thereto have heretofore executed and
delivered to the Trustee an indenture (the “Indenture”), dated as of June 5, 2009 providing for the
issuance of 7.75% Senior Secured Notes due 2016 (the “Notes”);




          WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and




          WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.




          NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:




          1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.




          2. Agreement to Guarantee.




     (a) In accordance with the terms of Article Eleven of the Indenture, the Guaranteeing
Subsidiary, along with all other Guarantors, jointly and severally, and fully and 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 the Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that:



               (i) the principal of, premium, if any, and interest and Additional Interest, if any, on the
Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of, premium, if any, and interest and Additional
Interest, if any, on the Notes, if lawful (subject in all cases to any applicable grace period
provided herein), and all other obligations of the Company to the



F-1









 




Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof;




               (ii) in case of any extension of time of payment or renewal of any Notes or any of such other
obligations, 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.
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. The
Guaranteeing Subsidiary agrees that this is a guarantee of payment and not a guarantee of
collection.



     (b) The Guaranteeing Subsidiary hereby agrees that, to the maximum extent permitted under
applicable law, its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce
the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce the same or any
other circumstance that might otherwise constitute a legal or equitable discharge or defense of a
Guarantor.



     (c) The Guaranteeing Subsidiary, subject to Section 6.06 of the Indenture, hereby waives
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 covenants that this Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes and the Indenture.



     (d) The Guaranteeing Subsidiary agrees that 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 any of the Company or the Guarantors, any amount
paid by any of them to the Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.



     (e) The Guaranteeing Subsidiary agrees that the Guaranteeing Subsidiary 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.



     (f) The Guaranteeing Subsidiary agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six of the Indenture 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 Six of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee.



F-2









 





     (g) The Guaranteeing Subsidiary 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 Holders under the
Note Guarantee.



     (h) The Guaranteeing Subsidiary confirms, pursuant to Section 11.02 of the Indenture, that it
is the intention of such Guaranteeing Subsidiary that its Note Guarantee not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to its Note Guarantee and, to effectuate the foregoing intention, hereby irrevocably
agrees that the obligations of such Guaranteeing Subsidiary will be limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities of such Guaranteeing
Subsidiary 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 Article Eleven of the Indenture, result in
the obligations of such Guaranteeing Subsidiary under its Note Guarantee not constituting a
fraudulent transfer or conveyance.



          3. Execution and Delivery. The Guaranteeing Subsidiary agrees that the Note
Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Note Guarantee.




          4. Guaranteeing Subsidiary May Consolidate, Etc., on Certain Terms.




          (a) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets,
or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person)
another Person, other than the Company or another Guarantor, unless:





     (i) immediately after giving effect to that transaction, no Default or Event of
Default exists; and




     (ii) either:




     (A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger (if other than the
Guarantor) is a corporation or limited liability company organized or existing under
the laws of the United States, any state thereof or the District of Columbia and
assumes all the obligations of that Guarantor under the Indenture, its Note
Guarantee and the Registration Rights Agreement pursuant to a supplemental indenture
reasonably satisfactory to the Trustee; or




     (B) such sale or other disposition or consolidation or merger does not violate
the provisions of Section 4.10 of the Indenture.



          (b) In case of any such consolidation, merger, sale or conveyance governed by Section
4(a)(ii)(A) hereof, upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all of the



F-3









 






covenants and conditions of the Indenture to be performed by a Guarantor, such successor
Person shall succeed to and be substituted for a Guarantor with the same effect as if it had been
named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of
the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so
issued shall in all respects have the same legal rank and benefit under the Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture as
though all of such Note Guarantees had been issued at the date of the execution hereof.




          5. Release.




          (a) (a) A Subsidiary Guarantor shall be automatically released from its obligations under its
Note Guarantee and the Security Documents, and the Collateral owned by such Guarantor shall be
automatically released from the Lien under the Security Documents: (i) in connection with any sale
or other disposition of Capital Stock of such Subsidiary Guarantor to a Person that is not (either
before or after giving effect to such transaction) a Restricted Subsidiary of the Parent, if such
sale or disposition does not violate Section 4.10 of the Indenture and such Subsidiary Guarantor
would no longer be a Subsidiary as a result of such sale or other disposition; provided that such
Subsidiary Guarantor is released from all Guarantees of any other Indebtedness of the Company or
any other Guarantor; (ii) if the Parent designates such Subsidiary Guarantor as an Unrestricted
Subsidiary in accordance with the applicable provisions of the Indenture; or (iii) upon legal or
covenant defeasance or satisfaction and discharge of the Notes as permitted under the Indenture.
Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel
to the effect that one of the foregoing requirements has been satisfied and the conditions to the
release of a Guarantor under this Section 5 have been satisfied, the Trustee shall execute any
documents reasonably required in order to evidence the release of such Guarantor from its
obligations under its Note Guarantee.




          (b) Any Guarantor not released from its obligations under its Note Guarantee shall remain
liable for the full amount of principal of and interest and Additional Interest, if any, on the
Notes and for the other obligations of any Guarantor under the Indenture as provided in Article
Eleven of the Indenture.




          6. No Recourse Against Others. Pursuant to Section 13.07 of the Indenture, no
director, officer, employee, incorporator, stockholder, member, manager or partner of the
Guaranteeing Subsidiary shall have any liability for any obligations of such Guaranteeing
Subsidiary under the Notes, the Indenture, the Note Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation.




          7. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.




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




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          9. Effect of Headings. The Section headings herein are for convenience only and shall
not affect the construction hereof.




          10. Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and
the Company.




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          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.




Dated:                                         ,                     




	 	 	 	 	 
	 	[Guaranteeing Subsidiary]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CRICKET COMMUNICATIONS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WILMINGTON TRUST FSB,

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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EXHIBIT G




SECURITY AGREEMENT





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EXHIBIT H




COLLATERAL TRUST AGREEMENT





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