Exhibit
4.4


 


 


ESCHELON TELECOM, INC.


 


and


[                   ]


 


as Trustee


 


 


Guaranteed to the extent
set forth therein by the Guarantors named herein.


 


 


INDENTURE


 


dated as of                 


 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE 1
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Certain Definitions

  	
   

  	
  1

  
	
  Section 1.02

  	
  Other Definitions

  	
   

  	
  4

  
	
  Section 1.03

  	
  Incorporation by Reference of Trust Indenture Act

  	
   

  	
  5

  
	
  Section 1.04

  	
  Rules of Construction

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2 THE SECURITIES 

  	
   

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Unlimited In Amount, Issuable In Series, Form and
  Dating

  	
   

  	
  6

  
	
  Section 2.02

  	
  Execution and Authentication

  	
   

  	
  9

  
	
  Section 2.03

  	
  Registrar and Paying Agent

  	
   

  	
  9

  
	
  Section 2.04

  	
  Paying Agent to Hold Money in Trust

  	
   

  	
  10

  
	
  Section 2.05

  	
  Securityholder Lists

  	
   

  	
  10

  
	
  Section 2.06

  	
  Transfer and Exchange

  	
   

  	
  10

  
	
  Section 2.07

  	
  Replacement Securities

  	
   

  	
  11

  
	
  Section 2.08

  	
  Outstanding Securities

  	
   

  	
  11

  
	
  Section 2.09

  	
  Temporary Securities

  	
   

  	
  12

  
	
  Section 2.10

  	
  Cancellation

  	
   

  	
  12

  
	
  Section 2.11

  	
  Defaulted Interest

  	
   

  	
  12

  
	
  Section 2.12

  	
  Special Record Dates

  	
   

  	
  12

  
	
  Section 2.13

  	
  Global Securities

  	
   

  	
  13

  
	
  Section 2.14

  	
  CUSIP Numbers

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3 REDEMPTION

  	
   

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Notices to Trustee

  	
   

  	
  14

  
	
  Section 3.02

  	
  Selection of Securities to Be Redeemed

  	
   

  	
  15

  
	
  Section 3.03

  	
  Notice of Redemption

  	
   

  	
  15

  
	
  Section 3.04

  	
  Effect of Notice of Redemption

  	
   

  	
  16

  
	
  Section 3.05

  	
  Deposit of Redemption Price

  	
   

  	
  16

  
	
  Section 3.06

  	
  Securities Redeemed or Purchased in Part

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4 COVENANTS

  	
   

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Securities

  	
   

  	
  17

  
	
  Section 4.02

  	
  Maintenance of Office or Agency

  	
   

  	
  17

  
	
  Section 4.03

  	
  Reports

  	
   

  	
  18

  
	
  Section 4.04

  	
  Compliance Certificate

  	
   

  	
  18

  
	
  Section 4.05

  	
  Taxes

  	
   

  	
  19

  
	
  Section 4.06

  	
  Stay, Extension and Usury Laws

  	
   

  	
  19

  
	
  Section 4.07

  	
  Calculation of Original Issue Discount

  	
   

  	
  19

  



 


i





















 


	
  ARTICLE 5 SUCCESSORS

  	
   

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  When Company May Merge, etc.

  	
   

  	
  19

  
	
  Section 5.02

  	
  Successor Person Substituted

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6
  DEFAULTS AND REMEDIES

  	
   

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of Default

  	
   

  	
  20

  
	
  Section 6.02

  	
  Acceleration

  	
   

  	
  22

  
	
  Section 6.03

  	
  Other Remedies

  	
   

  	
  22

  
	
  Section 6.04

  	
  Waiver of Past Defaults

  	
   

  	
  22

  
	
  Section 6.05

  	
  Control by Majority

  	
   

  	
  23

  
	
  Section 6.06

  	
  Limitation on Suits

  	
   

  	
  23

  
	
  Section 6.07

  	
  Rights of Holders to Receive Payment

  	
   

  	
  24

  
	
  Section 6.08

  	
  Collection Suit by Trustee

  	
   

  	
  24

  
	
  Section 6.09

  	
  Trustee May File Proofs of Claim

  	
   

  	
  24

  
	
  Section 6.10

  	
  Priorities

  	
   

  	
  24

  
	
  Section 6.11

  	
  Undertaking for Costs

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7 TRUSTEE

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties of Trustee

  	
   

  	
  25

  
	
  Section 7.02

  	
  Rights of Trustee

  	
   

  	
  27

  
	
  Section 7.03

  	
  Individual Rights of Trustee

  	
   

  	
  27

  
	
  Section 7.04

  	
  Trustee’s Disclaimer

  	
   

  	
  28

  
	
  Section 7.05

  	
  Notice of Defaults

  	
   

  	
  28

  
	
  Section 7.06

  	
  Reports by Trustee to Holders

  	
   

  	
  28

  
	
  Section 7.07

  	
  Compensation and Indemnity

  	
   

  	
  28

  
	
  Section 7.08

  	
  Replacement of Trustee

  	
   

  	
  29

  
	
  Section 7.09

  	
  Successor Trustee by Merger, etc.

  	
   

  	
  30

  
	
  Section 7.10

  	
  Eligibility; Disqualification

  	
   

  	
  30

  
	
  Section 7.11

  	
  Preferential Collection of Claims Against Company

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8 SATISFACTION AND DISCHARGE;
  DEFEASANCE

  	
   

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Satisfaction and Discharge

  	
   

  	
  31

  
	
  Section 8.02

  	
  Option to Effect Legal Defeasance or Covenant
  Defeasance

  	
   

  	
  32

  
	
  Section 8.03

  	
  Legal Defeasance and Discharge

  	
   

  	
  32

  
	
  Section 8.04

  	
  Covenant Defeasance

  	
   

  	
  32

  
	
  Section 8.05

  	
  Conditions to Legal or Covenant Defeasance

  	
   

  	
  33

  
	
  Section 8.06

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

  	
   

  	
  34

  
	
  Section 8.07

  	
  Repayment to Company

  	
   

  	
  35

  
	
  Section 8.08

  	
  Reinstatement

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9 SUPPLEMENTS, AMENDMENTS AND
  WAIVERS

  	
   

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without Consent of Holders

  	
   

  	
  35

  
	
  Section 9.02

  	
  With Consent of Holders

  	
   

  	
  36

  
	
  Section 9.03

  	
  Revocation and Effect of Consents

  	
   

  	
  37

  
					



 


ii





















 


	
  Section 9.04

  	
  Notation on or Exchange of Securities

  	
   

  	
  37

  
	
  Section 9.05

  	
  Trustee to Sign Amendments, etc.

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10 GUARANTEES

  	
   

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Guarantee

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11 MISCELLANEOUS

  	
   

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Indenture Subject to Trust Indenture Act

  	
   

  	
  38

  
	
  Section 11.02

  	
  Notices

  	
   

  	
  38

  
	
  Section 11.03

  	
  Communication By Holders With Other Holders

  	
   

  	
  39

  
	
  Section 11.04

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  40

  
	
  Section 11.05

  	
  Statements Required in Certificate or Opinion

  	
   

  	
  40

  
	
  Section 11.06

  	
  Rules by Trustee and Agents

  	
   

  	
  40

  
	
  Section 11.07

  	
  Legal Holidays

  	
   

  	
  40

  
	
  Section 11.08

  	
  No Recourse Against Others

  	
   

  	
  41

  
	
  Section 11.09

  	
  Counterparts

  	
   

  	
  41

  
	
  Section 11.10

  	
  Governing Law

  	
   

  	
  41

  
	
  Section 11.11

  	
  Submission to Jurisdiction; Service of Process;
  Waiver of Jury Trial

  	
   

  	
  41

  
	
  Section 11.12

  	
  Severability

  	
   

  	
  41

  
	
  Section 11.13

  	
  Effect of Headings, Table of Contents, etc.

  	
   

  	
  42

  
	
  Section 11.14

  	
  Successors and Assigns

  	
   

  	
  42

  
	
  Section 11.15

  	
  No Interpretation of Other Agreements

  	
   

  	
  42

  



 


iii





















 


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)

  	
   

  	
  7.03, 7.08; 7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  11.03

  
	
   

  	
  (c)

  	
   

  	
  11.03

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  
	
   

  	
  (b)(2)

  	
   

  	
  7.06

  
	
   

  	
  (c)

  	
   

  	
  7.06; 11.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
  4.03; 10.02; 11.05

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  11.04

  
	
   

  	
  (c)(2)

  	
   

  	
  11.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  11.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.01(b)(ii), 7.02

  
	
   

  	
  (b)

  	
   

  	
  7.02, 7.05; 10.02

  
	
   

  	
  (c)

  	
   

  	
  7.01(a), 7.02

  
	
   

  	
  (d)

  	
   

  	
  7.01(d), 7.02

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316

  	
  (a)(last sentence)

  	
   

  	
  2.13(f)

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
  2.12; 9.03

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
  11.01

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  11.01

  
	
  *

  	
   

  	
   

  	
   

  



 










N.A. means not applicable.


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


 





















 


INDENTURE dated as of                   
by and among Eschelon Telecom, Inc., a Delaware corporation (the “Company”),
the guarantors listed on Schedule 1 hereto (herein called the “Guarantors”) and
                  ,
as Trustee (the “Trustee”).


 


The Company has
duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its debentures, notes or other evidences of
indebtedness to be issued in one or more series (the “Securities”), as
herein provided, up to such principal amount as may from time to time be
authorized in or pursuant to one or more resolutions of the Board of Directors
or by supplemental indenture.


 


Each party agrees
as follows for the benefit of the other parties and for the equal and ratable
benefit of the Holders of each series of the Securities:


 


ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01         Certain
Definitions.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person.  For purposes of
this definition, “control,” as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided,
however, that beneficial ownership of 10% or more of the Voting
Securities of a Person shall be deemed to be a controlling interest in such
Person.  For purposes of this definition,
the terms “controlling,” “controlled by” and “under common control with” have
correlative meanings.


 


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


 


“Board of
Directors” means, with respect to any Person, the board of directors of
such Person (or, if such Person is a limited liability company, the board of
managers of such Person) or similar governing body or any authorized committee
thereof.


 


“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in
full force and effect on the date of such certification (and delivered to the
Trustee, if appropriate).


 


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


 


“Closing Date”
means the date on which the Securities of a particular series were originally
issued under this Indenture.


 


“Commission”
means the Securities and Exchange Commission.


 


1





















 


“Company”
means the party named as such above until a successor replaces it pursuant to
this Indenture and thereafter means the successor.


 


“Company Order”
means a written order signed in the name of the Company by two Officers, one of
whom must be the Company’s principal executive officer, principal financial
officer or principal accounting officer and delivered to the Trustee.


 


“Company
Request” means a written request signed in the name of the Company by its
Chairman of the Board, a President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.


 


“Corporate
Trust Office” shall mean the corporate trust office of the Trustee.


 


“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.


 


“Depositary”
means, with respect to the Securities of any series issuable or issued in whole
or in part in the form of one or more Global Securities, the person designated
as Depositary for such series by the Company, which Depositary shall be a
clearing agency registered under the Exchange Act; and if at any time there is
more than one such person, “Depositary” as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of such
series.


 


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


 


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


 


“Global
Security” shall mean a Security issued to evidence all or a part of any
series of Securities that is executed by the Company and authenticated and
delivered by the Trustee to a Depositary or pursuant to such Depositary’s
instructions, all in accordance with this Indenture and pursuant to Section
2.01, which shall be registered as to principal and interest in the name of
such Depositary or its nominee.


 


“Guarantee”
means a guarantee by any Guarantor of an obligation under this Indenture.


 


“Holder” or
“Securityholder” means a Person in whose name a Security is registered
in the register of Securities kept by the Registrar.


 


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


 


“Interest”
when used with respect to an Original Issue Discount Security that by its terms
bears interest only after Maturity, means interest payable after Maturity.


 


2





















 


“Maturity”
when used with respect to any Security, means the date on which the principal
of such Security or an installment of principal becomes due and payable as
therein or herein provided, whether at Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.


 


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


 


“Officers’
Certificate” means a certificate signed by two or more Officers, one of
whom must be the principal executive officer, principal financial officer or
principal accounting officer of the Company that meets the requirements of
Section 11.05 hereof.


 


“Opinion of
Counsel” means an opinion from legal counsel who is reasonably acceptable
to the Trustee that meets the requirements of Section 11.05 hereof.   The counsel may be an employee of or counsel
to the Company or the Trustee.


 


“Original Issue
Discount Security” means any Security which provides that an amount less
than its principal amount is due and payable upon acceleration after an Event
of Default.


 


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


 


“principal”
of a Security means the principal amount due on the Stated Maturity of the
Security plus the premium, if any, on the Security.


 


“Securities”
means the Securities authenticated and delivered under this Indenture.


 


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


 


“Stated
Maturity” when used with respect to any Security or any installment of
interest thereon, means the date specified in such Security as the fixed date
on which the principal of such Security or such installment of interest is due
and payable.


 


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


 


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


 


3





















 


event the TIA is amended after such date, “TIA” means, to the extent
required by such amendment, the Trust Indenture Act, as amended.


 


“Trust Officer”
when used with respect to the Trustee, means any officer with direct
responsibility for the administration of this Indenture 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.


 


“Trustee”
means the party named as such above until a successor becomes such pursuant to
this Indenture and thereafter means or includes each party who is then a
trustee hereunder, and if at any time there is more than one such party, “Trustee”
as used with respect to the Securities of any series means the Trustee with
respect to Securities of that series.  If
Trustees with respect to different series of Securities are trustees under this
Indenture, nothing herein shall constitute the Trustees co-trustees of the same
trust, and each Trustee shall be the trustee of a trust separate and apart from
any trust administered by any other Trustee with respect to a different series
of Securities.


 


“U.S.
Government Obligations” means securities that are (i) direct obligations of
the United States of America for the payment of which its full faith and credit
is pledged or (ii) obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that is not callable or redeemable
at the option of the issuer thereof, and shall also include a depository
receipt issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depository receipt.


 


Section 1.02         Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Bankruptcy
  Law”

  	
   

  	
  6.01

  
	
  “Custodian”

  	
   

  	
  6.01

  
	
  “Event of
  Default”

  	
   

  	
  6.01

  
	
  “Legal
  Holiday”

  	
   

  	
  11.07

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Place of
  Payment”

  	
   

  	
  2.01

  
	
  “redemption
  price”

  	
   

  	
  3.03

  
	
  “Registrar”

  	
   

  	
  2.03

  



 


4





















 


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 Securities.


 


“indenture
securityholder” means a Securityholder.


 


“indenture to be
qualified” means this Indenture.


 


“indenture trustee”
or “institutional trustee” means the Trustee.


 


“obligor” on the
Securities means the Company and any Guarantor and any successor obligor on the
Securities.


 


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


 


Section 1.04         Rules of
Construction.


 


Unless the context
otherwise requires:


 


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


 


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


 


(c)           “or” is not exclusive;


 


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


 


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


 


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


 


5





















 


ARTICLE 2

THE SECURITIES


 


Section 2.01         Unlimited
In Amount, Issuable In Series, Form and Dating.


 


The aggregate
principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.  The
Securities may be issued in one or more series. 
There shall be established in or pursuant to a Board Resolution or an
Officers’ Certificate pursuant to authority granted under a Board Resolution or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:


 


(a)           the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);


 


(b)           any limit upon the aggregate principal amount of
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to this Article 2);


 


(c)           the price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which the Securities of the series will
be issued;


 


(d)           the date or dates on which the principal of the
Securities of the series is payable;


 


(e)           the rate or rates that may be fixed or variable at
which the Securities of the series shall bear interest, if any, or the manner
in which such rate or rates shall be determined, the date or dates from which
such interest shall accrue, the interest payment dates on which such interest
shall be payable and the record dates for the determination of Holders to whom
interest is payable;


 


(f)            the place or places where the principal of, premium,
if any, and any interest, if any, on Securities of the series shall be payable
or the method of such payment, if by wire transfer, mail or by other means, if
other than as provided herein;


 


(g)           the price or prices at which (if any), the period or
periods within which (if any) and the terms and conditions upon which (if other
than as provided herein) Securities of the series may be redeemed, in whole or
in part, at the option, or as an obligation, of the Company;


 


(h)           the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series, in whole or in part, pursuant to
any sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period and periods within which and
the terms and conditions upon which Securities of the series shall be redeemed,
purchased or repaid pursuant to such obligation;


 


(i)            the dates, if any, on which, and the price or prices
at which, the Securities of the series will be repurchased by the Company at
the option of the Holders thereof and other detailed terms and provisions of
such repurchase obligations;


 


6





















 


(j)            if other than denominations of $1,000 and any multiple
thereof, the denominations in which Securities of the series shall be issuable;


 


(k)           if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.02 hereof;


 


(l)            any addition to, change in or deletion from the
covenants set forth in Articles 4 or 5 that applies to Securities of the
series;


 


(m)          any addition to, changes in or deletion from the
Events of Default with respect to the Securities of a particular series and any
change in the right of the Trustee or the requisite Holders of such Securities
to declare the principal amount thereof due and payable pursuant to Section
6.02 hereof;


 


(n)           the Trustee for the series of Securities;


 


(o)           the forms of the Securities of the series in bearer or
fully registered form (and, if in fully registered form, whether the Securities
will be issuable, in whole or in part, as Global Securities);


 


(p)           whether the Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities; the terms
and conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities, and the
Depositary for such Global Security and Securities;


 


(q)           the provisions, if any, relating to any security
provided for the Securities of the series;


 


(r)            any other terms of the series (which terms may modify,
supplement or delete any provision of this Indenture with respect to such
series; provided, however, that no such term may
modify or delete any provision hereof if imposed by the TIA; and provided, further, that any modification or deletion of
the rights, duties or immunities of the Trustee hereunder shall have been
consented to in writing by the Trustee);


 


(s)           the terms and conditions, if any, upon which the
Securities of the series shall be exchanged for or converted into other
securities of the Company or securities of another person;


 


(t)            any depositories, interest rate calculation agents or
other agents with respect to Securities of such series if other than those
appointed herein;


 


(u)           whether the Securities rank as senior subordinated
Securities or subordinated Securities or any combination thereof and the terms
of any such subordination;


 


(v)           the form and terms of any guarantee of any Securities
of the series;


 


(w)          the currency of denomination of the debt securities;


 


7





















 


(x)            the designation of the currency, currencies or
currency units in which payment of principal of, premium and interest on the
debt securities will be made;


 


(y)           if payments of principal of, premium or interest on
the debt securities will be made in one or more currencies or currency units
other than that or those in which the debt securities are denominated, the
manner in which the exchange rate with respect to these payments will be
determined; and


 


(z)            the manner in which the amounts of payment of
principal of, premium or interest on the debt securities will be determined, if
these amounts may be determined by reference to an index based on a currency or
currencies other than that in which the debt securities are denominated or
designated to be payable or by reference to a commodity, commodity index, stock
exchange index or financial index.


 


All Securities of
any series shall be substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to such Board Resolution or
Officers’ Certificate or in any such indenture supplemental hereto.


 


The principal of
and any interest on the Securities shall be payable at the office or agency of
the Company designated in the form of Security for the series (each such place
herein called the “Place of Payment”); provided, however,
that payment of interest may be made at the option of the Company by check
mailed to the address of the Person entitled thereto as such address shall
appear in the register of Securities referred to in Section 2.03 hereof.


 


Each Security
shall be in one of the forms approved from time to time by or pursuant to a
Board Resolution or Officers’ Certificate, or established in one or more
indentures supplemental hereto.  Prior to
the delivery of a Security to the Trustee for authentication in any form
approved by or pursuant to a Board Resolution or Officers’ Certificate, the
Company shall deliver to the Trustee the Board Resolution or Officers’
Certificate by or pursuant to which such form of Security has been approved,
which Board Resolution or Officers’ Certificate shall have attached thereto a
true and correct copy of the form of Security that has been approved by or
pursuant thereto.


 


The Securities may
have notations, legends or endorsements required by law, stock exchange rule or
usage.  Each Security shall be dated the
date of its authentication.


 


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Section 2.02         Execution
and Authentication.


 


One or more
Officers shall sign the Securities for the Company by manual or facsimile
signature.


 


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


 


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


 


The Trustee shall
authenticate Securities for original issue upon receipt of a Company Order.


 


The Trustee may
appoint an authenticating agent acceptable to the Company to authenticate
Securities.  An authenticating agent may
authenticate Securities 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 the Company or an Affiliate of the Company.


 


Section 2.03         Registrar
and Paying Agent.


 


The Company shall
maintain an office or agency where Securities of a particular series may be
presented for registration of transfer or for exchange (the “Registrar”)
and an office or agency where Securities of that series may be presented for
payment (a “Paying Agent”).  The
Registrar for a particular series of Securities shall keep a register of the
Securities of that series and of their registration of transfer and
exchange.  The Company may appoint one or
more co-Registrars and one or more additional paying agents for each series of
Securities.  The term “Paying Agent”
includes any additional paying agent. 
The Company may change any Paying Agent, Registrar or co-Registrar
without prior notice to any Securityholder. 
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 maintain a Registrar or Paying Agent for any series of Securities, the
Trustee shall act as such.  The Company
or any of its Affiliates may act as Paying Agent, Registrar or co-Registrar.


 


The Company hereby
appoints the Trustee the initial Registrar and Paying Agent for each series of
Securities unless another Registrar or Paying Agent, as the case may be, is
appointed prior to the time Securities of that series are first issued.


 


9





















 


Section 2.04         Paying
Agent to Hold Money in Trust.


 


Whenever the
Company has one or more Paying Agents it will, prior to each due date of the
principal of or interest on, any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.


 


The Company shall
require each Paying Agent other than the Trustee to agree in writing that such
Paying Agent will hold in trust for the benefit of the Securityholders of the
particular series for which it is acting, or the Trustee, all money held by the
Paying Agent for the payment of principal or interest on the Securities of such
series, and that such Paying Agent will notify the Trustee of any Default by
the Company or any other obligor of the series of Securities in making any such
payment and at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.  If the
Company or an Affiliate acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Securityholders of the particular
series for which it is acting all money held by it as Paying Agent.  The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee.  Upon so doing, the Paying Agent (if other
than the Company or an Affiliate of the Company) shall have no further
liability for such money.  Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Securities.


 


Section 2.05         Securityholder
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 Securityholders, separately by
series, and shall otherwise comply with TIA Section 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 Securityholders, separately by series,
relating to such interest payment date or request, as the case may be.


 


Section 2.06         Transfer
and Exchange.


 


Where Securities
of a series are presented to the Registrar or a co-Registrar with a request to
register a transfer or to exchange them for an equal principal amount of
Securities of the same series of other authorized denominations, the Registrar
shall register the transfer or make the exchange if its requirements for such
transactions are met.  To permit
registrations of transfers and exchanges, the Company shall issue and the
Trustee shall authenticate Securities at the Registrar’s request.


 


No service charge
shall be made 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 tax or similar governmental charge payable upon exchanges pursuant to
Sections 2.09, 2.13, 3.06 or 9.04).


 


10





















 


The Company need
not issue, and the Registrar or co-Registrar need not register the transfer or
exchange of, (i) any Security of a particular series during a period beginning
at the opening of business 15 days before the day of any selection of
Securities of that series for redemption under Section 3.02 and ending at the
close of business on the day of selection, or (ii) any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
of that series being redeemed in part.


 


Section 2.07         Replacement
Securities.


 


If a mutilated
Security is surrendered to the Trustee or if the Holder of a Security claims
that the Security has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Security of same
series if the Company’s and the Trustee’s requirements are met.  The Trustee or the Company may require an
indemnity bond to be furnished which is sufficient in the judgment of both to
protect the Company, the Trustee, and any Agent from any loss which any of them
may suffer if a Security is replaced. 
The Company or the Trustee may charge such Holder for its expenses in
replacing a Security.


 


Every replacement
Security is an obligation of the Company and shall be entitled to all the
benefit of the Indenture equally and proportionately with any and all other
Securities of the same series.


 


Section 2.08         Outstanding
Securities.


 


The Securities of
any series outstanding at any time are all the Securities of that series
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.


 


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


 


If Securities are
considered paid under Section 4.01, they cease to be outstanding and interest
on them ceases to accrue.


 


Except as set
forth in Section 2.09 hereof, a Security does not cease to be outstanding
because the Company or an Affiliate holds the Security.


 


For each series of
Original Issue Discount Securities, the principal amount of such Securities
that shall be deemed to be outstanding and used to determine whether the
necessary Holders have given any request, demand, authorization, direction,
notice, consent or waiver shall be the principal amount of such Securities that
could be declared to be due and payable upon acceleration upon an Event of
Default as of the date of such determination. 
When requested by the Trustee, the Company shall advise the Trustee of
such amount, showing its computations in reasonable detail.


 


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Section 2.09         Temporary
Securities.


 


Until definitive
Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities upon a Company Order.  Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. 
Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Securities in exchange for temporary Securities.


 


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


 


Section 2.10         Cancellation.


 


The Company at any
time may deliver Securities to the Trustee for cancellation.  The Registrar and Paying Agent shall forward
to the Trustee any Securities surrendered to them for registration of transfer,
exchange or payment.  The Trustee shall
cancel all Securities surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall return such canceled Securities to the
Company at the Company’s written request. 
The Company may not issue new Securities to replace Securities that it
has paid or that have been delivered to the Trustee for cancellation.


 


Section 2.11         Defaulted
Interest.


 


If the Company
fails to make a payment of interest on any series of Securities, the Company
shall pay such defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest, in any lawful manner. It may elect to pay
such defaulted interest, plus any such interest payable on it, to the Persons
who are Holders of such Securities on which the interest is due on a subsequent
special record date.  The Company shall
notify the Trustee in writing of the amount of defaulted interest proposed to
be paid on each such Security and the date of the proposed payment.  The Company shall fix or cause to be fixed
any such record date and payment date for such payment, 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 any such record date, the Company shall mail to
Securityholders affected thereby a notice that states the record date, payment
date, and amount of such interest to be paid.


 


Section 2.12         Special
Record Dates.


 


(a)           The Company may, but shall not be obligated to, set a
record date for the purpose of determining the identity of Holders entitled to
consent to any supplement, amendment or waiver permitted by this
Indenture.  If a record date is fixed,
the Holders of Securities of that series outstanding on such record date, and
no other Holders, shall be entitled to consent to such supplement, amendment or
waiver or revoke any consent previously given, whether or not such Holders
remain Holders after such record date. 
No consent shall be valid or effective for more than 90 days after such
record date unless consents from Holders of the principal amount of Securities
of that series required hereunder for such amendment or waiver to be effective
shall have also been given and not revoked within such 90-day period.


 


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(b)           The Company may, but shall not be obligated to, fix
any day as a record date for the purpose of determining the Holders of any
series of Securities entitled to join in the giving or making of any notice of
Default, any declaration of acceleration, any request to institute proceedings
or any other similar direction.  If a
record date is fixed, the Holders of Securities of that series outstanding on
such record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders remain
Holders after such record date; provided, however,
that no such action shall be effective hereunder unless taken on or prior to
the date 90 days after such record date.


 


Section 2.13         Global
Securities.


 


(a)           Terms of Securities. 
A Board Resolution, a supplemental indenture hereto or an Officers’
Certificate shall establish whether the Securities of a series shall be issued
in whole or in part in the form of one or more Global Securities and the
Depositary for such Global Security or Securities.


 


(b)           Transfer and Exchange. 
Notwithstanding any provisions to the contrary contained in Section 2.06
of this Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.06 of this Indenture for securities
registered in the names of Holders other than the Depositary for such Security
or its nominee only if (i) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or if at
any time such Depositary ceases to be a clearing agency registered under the Exchange
Act, and, in either case, the Company fails to appoint a successor Depositary
within 90 days of such event or (ii) the Company executes and delivers to
the Trustee an Officers’ Certificate to the effect that such Global Security
shall be so exchangeable.  Any Global
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the Depositary shall
direct in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and terms.


 


Except as provided
in this paragraph (b) of this Section, a Global Security may not be transferred
except as a whole by the Depositary with respect to such Global Security to a
nominee of such Depositary, by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such a successor Depositary.


 


(c)           Legend.  Any Global
Security issued hereunder shall bear a legend in substantially the following
form:


 


“Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation (“DTC”),
New York, New York, to the issuer or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS 


 


13





















 


WRONGFUL
inasmuch as the registered owner hereof, Cede & Co. has an interest herein.”


 


“Transfer of this Global Security shall be limited to
transfers in whole, but not in part, to nominees of DTC or to a successor
thereof or such successor’s nominee and limited to transfers made in accordance
with the restrictions set forth in the Indenture referred to herein.”


 


(d)           Acts of Holders.  The
Depositary, as a Holder, may appoint agents and otherwise authorize
participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or
take under this Indenture.


 


(e)           Payments. 
Notwithstanding the other provisions of this Indenture, unless otherwise
specified as contemplated by Section 2.01 hereof, payment of the principal of
and interest, if any, on any Global Security shall be made to the Person
specified therein.


 


(f)            Consents, Declaration and Directions. 
Except as provided in paragraph (e) of this Section, the Company, the
Trustee and any Agent shall treat a Person as the Holder of such principal
amount of outstanding Securities of such series represented by a Global
Security as shall be specified in a written statement of the Depositary with
respect to such Global Security, for purposes of obtaining any consents,
declarations or directions required to be given by the Holders pursuant to this
Indenture.


 


Section 2.14         CUSIP
Numbers.


 


The Company in
issuing any series of Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices 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 such Securities or as contained in any
notice and that reliance may be placed only on the other identification numbers
printed on such Securities, and any such action relating to such notice shall
not be affected by any defect in or omission of such numbers in such
notice.  The Company shall promptly
notify the Trustee of any change in the “CUSIP” numbers.


 


ARTICLE 3

REDEMPTION


 


Section 3.01         Notices to
Trustee.


 


If the Company
elects to redeem Securities of any series pursuant to any optional redemption
provisions thereof, it shall furnish to the Trustee at least 30 days, but not
more than 60 days before a redemption date, an Officer’s Certificate which
shall specify (i) the provisions of such Security or this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Securities of that series to be redeemed and (iv) the redemption
price.


 


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If the Company
elects to reduce the principal amount of Securities of any series to be
redeemed pursuant to mandatory redemption provisions thereof, it shall notify
the Trustee of the amount of, and the basis for, any such reduction.  If the Company elects to credit against any
such mandatory redemption Securities it has not previously delivered to the
Trustee for cancellation, it shall deliver such Securities with such notice.


 


Section 3.02         Selection
of Securities to Be Redeemed.


 


If less than all
the Securities of any series are to be redeemed, or purchased in an offer to
purchase at any time, the Trustee shall select the Securities of that series to
be redeemed or purchased as follows:  (1)
if the Securities of such series are listed on any national securities
exchange, in compliance with the requirements of the principal national
securities exchange on which the Securities of that series are listed, or, (2)
if the Securities of that series are not listed on a national securities
exchange, on a pro rata basis, by lot or by such other method as the
Trustee deems fair and appropriate.  In
the event of a partial redemption or purchase by lot, the particular Securities
to be redeemed or purchased will be selected not less than 30 nor more than 60
days prior to the redemption or purchase date by the Trustee from Securities of
that series outstanding and not previously called for redemption.


 


The Trustee shall
notify the Company promptly in writing of the Securities or portions of
Securities to be called for redemption or purchase and, in the case of any
Securities selected for partial redemption or purchase, the principal amount
thereof to be redeemed or purchased. 
Except as otherwise provided as to any particular series of Securities,
Securities and portions thereof that the Trustee selects shall be in amounts
equal to the minimum authorized denomination for Securities of the series to be
redeemed or purchased or any integral multiple thereof, except that if all of
the Securities of the series are to be redeemed or purchased, the entire
outstanding amount of the Securities of the series held by such Holder, even if
not equal to the minimum authorized denomination for the Securities of that series,
shall be redeemed or purchased. 
Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.


 


Section 3.03         Notice of
Redemption.


 


Except as
otherwise provided as to any particular series of Securities, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail a
notice of redemption to each Holder whose Securities are to be redeemed.


 


The notice shall
identify the Securities of the series to be redeemed and shall state:


 


(1)           the redemption date;


 


(2)           the redemption price fixed in
accordance with the terms of the Securities of the series to be redeemed, plus
accrued interest, if any, to the date fixed for redemption (the “redemption
price”);


 


(3)           if any Security is being redeemed in
part, the portion of the principal amount of such Security to be redeemed and
that, after the redemption date, 


 


15





















 


upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Securities;


 


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


 


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


 


(6)           that, unless the Company defaults in
payment of the redemption price, interest on Securities called for redemption
ceases to accrue on and after the redemption date;


 


(7)           the CUSIP number, if any, of the
Securities to be redeemed;


 


(8)           the paragraph of the Securities
and/or the section of the Indenture pursuant to which the Securities called for
redemption are being redeemed; and


 


(9)           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 Securities.


 


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 mailed in the
manner herein provided shall be conclusively presumed to have been duly given
whether or not the Holder receives such notice. 
In any case, failure to give such notice by mail or any defect in the
notice of the Holder of any Security shall not affect the validity of the
proceeding for the redemption of any other Security.


 


Section 3.04         Effect of
Notice of Redemption.


 


Except if the
giving of a notice of redemption would violate the terms of the Company’s
credit agreement, and subject to the subordination provisions of any series of
Securities, once notice of redemption is mailed in accordance with Section 3.03
hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. 
Upon surrender to the Paying Agent, such Securities will be paid at the
Redemption Price.


 


Section 3.05         Deposit of
Redemption Price.


 


On or before 10:00
a.m., New York City time, on the redemption or purchase date, the Company shall
deposit with the Trustee or Paying Agent (or, if the Company or any Affiliate
is the Paying Agent, shall segregate and hold in trust) money sufficient to pay
the redemption or purchase price of all Securities called for redemption on
that date other than Securities that have previously been delivered by the
Company to the Trustee for cancellation. 
The Paying Agent shall return to the Company any money not required for
that purpose.


 


16





















 


If the Company
complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest shall cease to accrue on the Securities
(or the portions thereof) called for redemption or purchase.  If a Security is redeemed or purchased on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Securities were registered at the close of business on such record
date.  If any Securities called for
redemption or purchase 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 unpaid principal, from the redemption or purchase
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in accordance
with the terms of the Securities of the series to be redeemed.


 


Section 3.06         Securities
Redeemed or Purchased in Part.


 


Upon surrender of
a Security that is redeemed or purchased in part, the Company shall issue and
the Trustee shall authenticate for the Holder at the expense of the Company a
new Security of same series equal in principal amount to the unredeemed or
unpurchased portion of the Security surrendered.


 


ARTICLE 4

COVENANTS


 


Section 4.01         Payment of
Securities.


 


The Company shall
pay or cause to be paid the principal of, premium, if any, and interest on the
Securities on the dates and in the manner provided in this Indenture and the
Securities.  Principal, premium, if any,
and interest shall be considered paid on the date due if the Paying Agent, if
other than the Company or an Affiliate, holds as of 10:00 a.m., New York City
time, on that date immediately available funds designated for and sufficient to
pay all principal, premium, if any, and interest then due.


 


To the extent
lawful, the Company shall pay interest on overdue principal and overdue
installments of interest at the rate per annum borne by the applicable series
of Securities.


 


Section 4.02         Maintenance
of Office or Agency.


 


The Company shall
maintain in the Borough of Manhattan, The City of New York, an office or agency
(which may be an office of the Trustee or an affiliate of the Trustee or
Registrar) where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. 
The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.  If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.


 


The Company may
also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and
may from


 


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


 


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


 


Section 4.03         Reports.


 


The Company shall
deliver to the Trustee within 15 days after it files them with the Commission
copies of the annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as the Commission
may by rules and regulations prescribe) that the Company is required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act; provided, however the Company shall not be required to
deliver to the Trustee any materials for which the Company has sought and
received confidential treatment by the Commission.  The Company also shall comply with the other
provisions of TIA Section 314(a).


 


Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).


 


Section 4.04         Compliance
Certificate.


 


(a)           The Company or any Guarantors shall deliver to the
Trustee, within 90 days after the end of each fiscal year of the Company, an
Officers’ Certificate stating that a review of the activities of the Company
and its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers (one of whom shall be the principal
executive officer, principal financial officer or principal accounting officer
of the Company) with a view to determining whether the Company 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 Company has kept, observed, performed and
fulfilled each and every covenant contained in 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 Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action the Company is taking
or proposes to take with respect thereto.


 


(b)           The Company shall, so long as any of the Securities
are outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an


 


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Officers’ Certificate specifying such Default or Event of Default and
what action the Company is taking or proposes to take with respect thereto.


 


Section 4.05         Taxes.


 


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


 


Section 4.06         Stay,
Extension and Usury Laws.


 


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


 


If, as of the end
of any fiscal year of the Company, the Company has any outstanding Original
Issue Discount Securities under the Indenture, the Company shall file with the
Trustee promptly following the end of such fiscal year (i) a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on such Original Issue Discount Securities as of the
end of such year and (ii) such other specific information relating to such
original issue discount as may then be required under the Internal Revenue Code
of 1986, as amended from time to time.


 


ARTICLE 5

SUCCESSORS


 


Section 5.01         When Company
May Merge, etc.


 


In addition to
provisions applicable to a particular series of Securities, the Company shall
not directly or indirectly: (i) consolidate or merge with or into another
Person (whether or not the Company is the surviving Person), or (ii) sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially
all of the properties or assets of the Company and its Subsidiaries in one or
more related transactions to any Person unless:


 


(1)           either (x) the Company is the
surviving Person; or (y) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a Person organized or existing under the laws of the United States, any
state thereof or the District of Columbia;


 


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(2)           the Person formed by or surviving
any such consolidation or merger (if other than the Company) or the Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes (by supplemental indenture reasonably satisfactory
to the Trustee) all the obligations of the Company under the Securities and
this Indenture; and


 


(3)           immediately after the transaction no
Default or Event of Default exists.


 


The Company shall
deliver to the Trustee on or prior to the consummation of the proposed
transaction an Officers’ Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture.


 


Section 5.02         Successor
Person Substituted.


 


Upon any
consolidation or merger, or any sale, assignment, transfer, conveyance or other
disposition (other than by lease) of all or substantially all of the assets of
the Company in accordance with Section 5.01 hereof, the successor Person formed
by such consolidation or into which the Company 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, conveyance or other disposition, the provisions of
this Indenture referring to the “Company” shall refer instead to the successor
Person and not to the Company), and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein; provided, however, that the predecessor
Company shall not be relieved from the obligation to pay principal of, and
interest on, any Securities except in the case of a sale, assignment, transfer,
conveyance or other disposition of all or substantially all of the Company’s
assets that meets the requirements of Section 5.01 hereof.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01         Events of
Default.


 


An “Event of
Default” occurs with respect to Securities of any particular series if,
unless as otherwise provided in the establishing Board Resolution, Officers’
Certificate or supplemental indenture hereto:


 


(1)           the Company defaults in the payment
of interest on any Security of that series when the same becomes due and
payable and the Default continues for a period of 30 days;


 


(2)           the Company defaults in the payment,
when due, of the principal of, or premium, if any, on any Security of that
series when the same becomes due and payable at Maturity, upon redemption
(including in connection with any offer to purchase under the terms of such
Securities) or otherwise;


 


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(3)           an Event of Default, as defined in the Securities of
that series, occurs and is continuing, or the Company fails to comply with any
of its other agreements in the Securities of that series or in this Indenture
with respect to that series and the Default continues for the period and after
the notice specified below;


 


(4)           the Company pursuant to or within the meaning of any
Bankruptcy Law:


 


(A)  commences a voluntary case;


 


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


 


(C)   consents to the appointment of a
Custodian of it or for all or substantially all of its property;


 


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


 


(E)   admits in writing its inability
generally to pay its debts as the same become due.


 


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


 


(A)  is for relief against the Company in
an involuntary case;


 


(B)   appoints a Custodian of the Company
or for all or substantially all of its property; or


 


(C)   orders the liquidation of the
Company;


 


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


 


(6)           any other Event of Default provided with respect to
Securities of that series which is specified in a Board Resolution, Officers’
Certificate or supplemental indenture establishing that series of Securities.


 


The term “Bankruptcy Law” means Title 11, U.S.
Code or any similar federal or state law for the relief of debtors.  The term “Custodian” means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.


 


A Default under clause (3) above is not an Event of
Default with respect to a particular series of Securities until the Trustee or
the Holders of at least 50% in principal amount of the then outstanding Securities
of that series notify the Company of the Default and the Company does not cure
the Default within 60 days after receipt of the notice.  The notice must specify the Default, demand
that it be remedied and state that the notice is a “Notice of Default.” Such


 


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notice shall be given by the Trustee if so requested
in writing by the Holders of 50% of the principal amount of the then
outstanding Securities of that series.


 


Section
6.02         Acceleration.


 


If an Event of Default with respect to Securities of
any series (other than an Event of Default specified in clauses (4) and (5) of
Section 6.01) occurs and is continuing, the Trustee by notice to the Company,
or the Holders of at least 50% in principal amount of the then outstanding
Securities of that series by notice to the Company and the Trustee, may,
subject to any prior notice requirements set forth in any supplemental
indenture, declare the unpaid principal (or, in the case of Original Issue
Discount Securities, such lesser amount as may be provided for in such
Securities) of and any accrued interest on all the Securities of that series to
be due and payable on the Securities of that series.  Upon such declaration the principal (or such
lesser amount) and interest shall be due and payable immediately.  If an Event of Default specified in clause
(4) or (5) of Section 6.01 occurs, all of such amount shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.  The Holders
of a majority in principal amount of the then outstanding Securities of that
series by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default with respect to that series have been
cured or waived except nonpayment of principal (or such lesser amount) or
interest that has become due solely because of the acceleration.


 


Section
6.03         Other Remedies.


 


If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal or interest on the Securities of
that series or to enforce the performance of any provision of the Securities of
that series or this Indenture.


 


The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of them in the
proceeding.  A delay or omission by the
Trustee or any Securityholder 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.


 


Subject to Section 6.02, the Holders of not less than
a majority in aggregate principal amount of the then outstanding Securities of
any series, by notice to the Trustee, may on behalf of the Holders of the
Securities of that series, waive an existing Default or Event of Default with
respect to that series and its consequences except a continuing Default or
Event of Default in the payment of the principal (including any mandatory
sinking fund or like payment) of, premium, if any, or interest on any Security
of that series (including in connection with an offer to purchase); provided, however, that the Holders of a majority in
aggregate principal amount of the outstanding Securities of any series may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration and its consequences, including
any related payment default that resulted from any such acceleration.  Upon any such waiver,


 


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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 principal amount of the
then outstanding Securities of any series may direct the time, method and place
of conducting any proceeding for exercising any remedy with respect to that
series available to the Trustee or exercising any trust or power conferred on
it.  However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of other Holders of
Securities of that series, or that may involve the Trustee in personal
liability.  The Trustee may take any
other action which it deems proper that is not inconsistent with any such
direction.  Notwithstanding any provision
to the contrary in this Indenture, the Trustee shall not be obligated to take
any action with respect to the provisions of Section 6.02 unless directed to do
so pursuant to this Section 6.05.


 


Section
6.06         Limitation on Suits.


 


A Holder of Securities of any series may not pursue a
remedy with respect to this Indenture or the Securities unless:


 


(1)           the Holder gives to the Trustee
written notice of a continuing Event of Default with respect to that series;


 


(2)           the Holders of at least 25% in
principal amount of the then outstanding Securities of that series make a
written request to the Trustee to pursue the remedy;


 


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


 


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


 


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


 


No Holder of any series of Securities may use this
Indenture to prejudice the rights of another Holder of Securities of that
series or to obtain a preference or priority over another Holder of Securities
of that series.


 


Section
6.07         Rights of Holders to Receive
Payment.


 


Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security to receive payment of principal, premium,
if any, and interest on the Security, on or


 


23

















 


after the respective due dates expressed in the
Security (including in connection with any offer to purchase), or to bring suit
for the enforcement of any such payment on or after such respective dates,
shall not, except as provided in the subordination provisions, if any,
applicable to such Security, be impaired or affected without the consent of the
Holder.


 


Section
6.08         Collection Suit by Trustee.


 


If an Event of Default specified in Section 6.01(1) or
(2) hereof occurs and is continuing with respect to Securities of any series,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal (or such portion of
the principal as may be specified as due upon acceleration at that time in the
terms of that series of Securities), premium, if any, and interest, remaining
unpaid on the Securities of that series then outstanding, together with (to the
extent lawful) interest on overdue principal and interest, and such further
amount as shall be sufficient to cover the costs and, to the extent lawful,
expenses of collection, including 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.


 


Section
6.09         Trustee May File Proofs of Claim.


 


The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due to the Trustee under Section 7.07 hereof) and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor on the Securities), its creditors or its property and shall
be entitled to and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims, and any custodian in
any such judicial proceedings 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 agent and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. 
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.


 


Section
6.10         Priorities.


 


If the Trustee collects any money with respect to
Securities of any series 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;


 


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Second:           in
accordance with the subordination provisions, if any, of the Securities of such
series;


 


Third:              to
Securityholders for amounts due and unpaid on the Securities of such series for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities of such series for principal, premium, if any, and interest,
respectively; and


 


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


 


The Trustee may fix a record date and payment date for
any payment to Holders of Securities of any series pursuant to this
Section.  The Trustee shall notify the
Company in writing reasonably in advance of any such record date and payment
date.


 


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 and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defense
made by the party litigant.  This Section
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 hereof or a suit by Holders of more than 10% in principal amount of the
then outstanding Securities of any series.


 


ARTICLE 7

TRUSTEE


 


Section
7.01         Duties of Trustee.


 


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


 


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


 


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


 


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(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, in
the case of any certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall examine
the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).


 


(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 of the Trustee, 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.


 


(e)           No provision of this Indenture shall
require the Trustee to expend or risk its own funds or incur any
liability.  The Trustee may refuse to
perform any duty or exercise any right or power, including without limitation,
the provisions of Section 6.05 hereof, unless it receives security and
indemnity satisfactory to it against any loss, liability or expense.


 


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


 


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Section
7.02         Rights of Trustee.


 


Subject to TIA Section 315(a) through (d):


 


(a)           The Trustee may conclusively rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person.  The Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit.


 


(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.


 


(c)           The Trustee may act through 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 which it believes to be authorized or
within its rights or powers under the Indenture, unless the Trustee’s conduct
constitutes negligence.


 


(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 may consult with counsel of its selection
and may rely upon the advice of such counsel or any Opinion of Counsel.


 


(g)           The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or unless written notice of any event that is in fact such a
default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities generally or the Securities
of a particular series, as the case may be, and this Indenture.


 


(h)           The permissive rights
of the Trustee to do things enumerated in this Indenture shall not be construed
as duties.


 


Section
7.03         Individual Rights of Trustee.


 


The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the
Company or an Affiliate with the same rights it would have if it were not
Trustee.  Any Agent may do the same with
like rights.  However, the Trustee is
subject to TIA Sections 310(b) and 311.


 


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Section
7.04         Trustee’s Disclaimer.


 


The Trustee makes no representation as to the validity
or adequacy of this Indenture or the Securities, it shall not be accountable for
the Company’s use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.


 


Section
7.05         Notice of Defaults.


 


If a Default or Event of Default with respect to the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to all Holders of Securities of that series 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 on any such Security, the Trustee may withhold the notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of such Securityholders.


 


Section 7.06         Reports by Trustee to Holders.


 


Within 60 days after May 15 in each year, the Trustee
with respect to any series of Securities shall mail to Holders of Securities of
that series as provided in TIA Section 313(c) a brief report dated as of
such May 15 that complies with TIA Section 313(a) (if such report is
required by TIA Section 313(a)).  The
Trustee shall also comply with TIA Section 313(b)(2).


 


A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the Commission
and each stock exchange on which any of the Securities are listed, as required
by TIA Section 313(d).  The Company
shall notify the Trustee when the Securities are listed on any stock exchange,
and of any delisting thereof.


 


Section 7.07         Compensation and Indemnity.


 


The Company shall pay to the Trustee from time to time
such compensation as shall be agreed upon in writing for its services
hereunder.  The Company shall reimburse
the Trustee upon written request for all reasonable out-of-pocket expenses
incurred by it.  Such expenses shall
include the reasonable compensation and out-of-pocket expenses of the Trustee’s
agents and counsel.


 


The Company shall indemnify each of the Trustee or any
predecessor Trustee for any loss, liability, damage, claims or expenses,
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred by it, without negligence or bad faith on its
part, in connection with the acceptance or administration of this Indenture and
its duties hereunder.  The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.  The Company shall defend the claim and the
Trustee shall cooperate in the defense. 
The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. 
The Company need not pay for any settlement made without its consent.


 


To secure the Company’s payment obligations in this
Section, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee in its


 


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capacity as Trustee, except money or property held in
trust to pay principal and interest on particular Securities.  Such lien will survive the satisfaction and
discharge of this Indenture.


 


If the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(4) or (5) hereof occurs,
the expenses and the compensation for the services will be intended to constitute
expenses of administration under any applicable Bankruptcy Law.


 


This Section 7.07 shall survive the resignation or
removal of the Trustee and the termination of this Indenture.


 


Section
7.08         Replacement of Trustee.


 


A resignation or removal of the Trustee with respect
to one or more or all series of Securities and appointment of a successor
Trustee shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section.


 


The Trustee may resign with respect to one or more or
all series of Securities by so notifying the Company in writing.  The Holders of a majority in principal amount
of the then outstanding Securities of any series may remove the Trustee as to
that series by so notifying the Trustee in writing and may appoint a successor
Trustee with the Company’s consent.  The
Company may remove the Trustee with respect to one or more or all series of
Securities if:


 


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


 


(2)           the Trustee is adjudged a bankrupt or an insolvent;


 


(3)           a receiver or other public officer takes charge of the
Trustee or its property; or


 


(4)           the Trustee becomes incapable of acting.


 


If, as to any series of Securities, 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 for that
series.  Within one year after the
successor Trustee with respect to any series takes office, the Holders of a
majority in principal amount of the then outstanding Securities of that series
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.  If a successor Trustee as
to a particular series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of at least 10% in principal amount of the then outstanding Securities of that
series may petition any court of competent jurisdiction for the appointment of
a successor Trustee.


 


If the Trustee fails to comply with Section 7.10
hereof with respect to any series, any Holder of Securities of that series who
satisfies the requirements of TIA Section 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for that series.


 


A successor Trustee as to any series of Securities
shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company.  Immediately after
that, the retiring


 


29

















 


Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee (subject to the lien provided for in
Section 7.07 hereof), 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 as to that series.  The successor Trustee shall mail a notice of
its succession to the Holders of Securities of that series.


 


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.


 


In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and that (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) shall contain such provisions as shall be
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary or desirable to provide for
or facilitate the administration of the trusts hereunder by more than one
Trustee; provided, however, that nothing herein
or in such supplemental Indenture shall constitute such Trustee co-trustees of
the same trust and that each such Trustee shall be trustee of a trust hereunder
separate and apart from any trust hereunder administered by any other such
Trustee.


 


Upon the execution and delivery of such supplemental
Indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates.


 


Section
7.09         Successor Trustee by Merger, etc.


 


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


 


Section
7.10         Eligibility; Disqualification.


 


Each series of Securities shall always have a Trustee
who satisfies the requirements of TIA Section 310(a)(1), (2) and (5).  The Trustee as to any series of Securities
shall always have a combined capital and surplus of at least $25,000,000 as set
forth in its most recent published annual report of condition.  The Trustee is subject to TIA Section 310(b).


 


30

















 


Section
7.11         Preferential Collection of Claims
Against Company.


 


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


 


ARTICLE 8

SATISFACTION AND DISCHARGE; DEFEASANCE


 


Section
8.01         Satisfaction and Discharge.


 


This Indenture will be
discharged and will cease to be of further effect with respect to any series of
Securities issued hereunder, when:


 


(1)           either:


 


(a)           all
Securities of such series that have been authenticated (except lost, stolen or
destroyed Securities 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
Securities of such series that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the making of a notice of
redemption or otherwise or will become due and payable within one year and the
Company or any Guarantor has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust solely for the benefit of the Holders,
cash in U.S. dollars, non-callable U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Trustee for cancellation for
principal, premium and accrued interest to the date of Maturity or redemption:


 


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


 


(3)           the
Company or any Guarantor has paid or caused to be paid all sums payable by it
under this Indenture with respect to such series of Securities; and


 


(4)           the
Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Securities of
such series at Maturity or the redemption date, as the case may be.


 


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


 


31

















 


Notwithstanding, the satisfaction and discharge of
this Indenture with respect to a series of Securities, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section, the provisions of Section 8.06 shall survive.


 


Section
8.02         Option to Effect Legal Defeasance or
Covenant Defeasance.


 


Unless Section 8.03 or 8.04 is otherwise specified to
be inapplicable to Securities of a series, the Company may, at the option of
its Board of Directors evidenced by a resolution set forth in an Officers’
Certificate, at any time, elect to have either Section 8.03 or 8.04 hereof be
applied to all outstanding Securities of any such series upon compliance with
the conditions set forth below in this Article Eight.


 


Section
8.03         Legal Defeasance and Discharge.


 


Upon the Company’s exercise under Section 8.02 hereof
of the option applicable to this Section 8.03, the Company and any Guarantor
shall, subject to the satisfaction of the conditions set forth in Section 8.05
hereof, be deemed to have been discharged from their respective obligations
with respect to all outstanding Securities of any series on the date the
conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”).  For this
purpose, Legal Defeasance means that the Company and any Guarantor shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Securities of a series, which shall thereafter be deemed to be “outstanding”
only for the purposes of Section 8.06 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 Securities 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
Securities to receive solely from the trust fund described in Section 8.05
hereof, and as more fully set forth in such Section, payments in respect of the
principal of, premium and interest on such Securities when such payments are
due, (b) the Company’s obligations with respect to such Notes under Article 2
and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company’s or any 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 8.03
notwithstanding the prior exercise of its option under Section 8.04 hereof.


 


Section
8.04         Covenant Defeasance.


 


Upon the Company’s exercise under Section 8.02 hereof
of the option applicable to this Section 8.04, the Company or any Guarantors
shall, subject to the satisfaction of the conditions set forth in Section 8.05
hereof, be released from their respective obligations under the covenants
contained in Sections 4.03, 4.04, 4.05, 4.06, and 4.07, and Section 5.01 hereof
with respect to the outstanding Securities of any series on and after the date
the conditions set forth in Section 8.05 are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of such series
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


 


32

















 


being understood that such Securities shall not be
deemed outstanding for accounting purposes). 
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Securities of any series, the Company or any 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 Securities shall be unaffected
thereby.  In addition, upon the Company’s
exercise under Section 8.02 hereof of the option applicable to this Section
8.04 hereof, subject to the satisfaction of the conditions set forth in Section
8.05 hereof, Sections 6.01(3) through 6.01(6) hereof shall not constitute
Events of Default.


 


Section
8.05         Conditions to Legal or Covenant
Defeasance.


 


The following shall be the conditions to the
application of either Section 8.03 or 8.04 hereof to the outstanding Securities
of any series.  In order to exercise
either Legal Defeasance or Covenant Defeasance:


 


(a)   the Company must irrevocably deposit with
the Trustee, in trust, for the benefit of the Holders, cash in United States
dollars, non-callable U.S. Government Obligations, or a combination thereof, in
such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium and
interest on the outstanding Securities on the stated date for payment thereof
or on the applicable redemption date, as the case may be;


 


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


 


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


 


(d)   no Default or Event of Default shall have
occurred and be continuing on the date of such deposit (other than a Default or
Event of Default resulting from the incurrence of Indebtedness all or a portion
of the proceeds of which will be used to defease the Securities pursuant to
this Article Eight concurrently with such incurrence) or insofar as Sections
6.01(4) or


 


33

















 


6.01(5) hereof is
concerned, at any time in the period ending on the 91st day after the date of
deposit;


 


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


 


(f)    the Company shall have delivered to the
Trustee an Officers’ Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other creditors of
the Company or with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company; and


 


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


 


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


 


Subject to Section 8.07 hereof, all money and
non-callable U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.06, the “Trustee”) pursuant to Section 8.01 or
Section 8.05 hereof in respect of the outstanding Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities 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 Securities of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.


 


The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
non-callable U.S. Government Obligations deposited pursuant to Section 8.05
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 Securities.


 


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 U.S. Government
Obligations held by it as provided in Section 8.05 hereof which, in the opinion
of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.05(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
8.07         Repayment to Company.


 


Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal
of, premium, if any, or interest on any


 


34

















 


Securities 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 Securities 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 will be repaid to the Company.


 


Section
8.08         Reinstatement.


 


If the Trustee or Paying Agent is unable to apply any
United States dollars or non-callable U.S. Government Securities in accordance
with Section 8.03 or 8.04 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company’s obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.03 or 8.04 hereof until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.03 or 8.04 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 Securities following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money held by the Trustee
or Paying Agent.


 


ARTICLE 9

SUPPLEMENTS, AMENDMENTS AND WAIVERS


 


Section
9.01         Without Consent of Holders.


 


The Company and the Trustee as to any series of
Securities may supplement or amend this Indenture or the Securities without
notice to or the consent of any Securityholder:


 


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


 


(2)           to comply with Article 5;


 


(3)           to comply with any requirements of
the Commission in connection with the qualification of this Indenture under the
TIA;


 


(4)           to provide for uncertificated
Securities in addition to or in place of certificated Securities;


 


(5)           to
add to, change or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities, provided, however,
that any such addition, change or elimination (A) shall neither (i) apply to
any Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit


 


35

















 


of such provision
nor (ii) modify the rights of the Holder of any such Security with respect to
such provision or (B) shall become effective only when there is no outstanding
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision;


 


(6)           to make any change that does not adversely affect in any material
respect the interests of the Securityholders of any series; or


 


(7)           to establish additional series of
Securities as permitted by Section 2.01 hereof.


 


Section
9.02         With Consent of Holders.


 


Subject to Section 6.07, the Company and the Trustee
as to any series of Securities may amend this Indenture or the Securities of
that series with the written consent of the Holders of a majority in principal
amount of the then outstanding Securities of each series affected by the
amendment, with each such series voting as a separate class.  The Holders of a majority in principal amount
of the then outstanding Securities of any series may also waive compliance in a
particular instance by the Company with any provision of this Indenture with
respect to that series or the Securities of that series; provided,
however, that without the consent of each Securityholder affected,
an amendment or waiver may not:


 


(1)           reduce the percentage of the
principal amount of Securities whose Holders must consent to an amendment or
waiver;


 


(2)           reduce the amount of, or postpone
the date fixed for, the payment of any sinking fund or analogous provision;


 


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


 


(4)           reduce the principal of or change
the fixed Maturity of any Security or waive a redemption payment or alter the
redemption provisions with respect thereto;


 


(5)           make any Security payable in money
other than that stated in the Security (including defaulted interest);


 


(6)           reduce the principal amount of
Original Issue Discount Securities payable upon acceleration of the Maturity
thereof;


 


(7)           make any change in Section 6.04,
6.07 or this Section 9.02; or


 


(8)           waive a default in the payment of
the principal of, or interest on, any Security, except to the extent otherwise
provided for in Section 6.02 hereof.


 


36

















 


An amendment or waiver under this Section that waives,
changes or eliminates any covenant or other provision of this Indenture that
has expressly been included solely for the benefit of one or more particular
series of Securities, or that modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.


 


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


 


The Company shall mail supplemental indentures to
Holders upon request.  Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.


 


Section
9.03         Revocation and Effect of Consents.


 


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


 


Section
9.04         Notation on or Exchange of
Securities.


 


If an amendment, supplement or waiver changes the
terms of a Security:  (a) the Trustee may
require the Holder of the Security to deliver it to the Trustee, the Trustee
may, at the written direction of the Company and at the Company’s expense,
place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on
any Security thereafter authenticated; or (b) if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms.


 


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


 


37

















 


Section
9.05         Trustee to Sign Amendments, etc.


 


Subject to the preceding sentence, the Trustee shall
sign any amendment or supplemental Indenture if the same does not adversely
affect the rights, duties, liabilities or immunities of the Trustee.  The Trustee may, but shall not be obligated
to, execute any such amendment, supplement or waiver that affects the Trustee’s
own rights, duties, liabilities or immunities under this Indenture or
otherwise.  The Company may not sign an
amendment or supplemental Indenture until the Board of Directors approves
it.  In executing any amended or
supplemental Indenture, the Trustee shall be entitled to receive and (subject
to Section 7.01) shall be fully protected in relying upon, in addition to the
documents required by Section 11.04 hereof, an Officer’s Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
Indenture is authorized or permitted by this Indenture.


 


ARTICLE 10

GUARANTEES


 


Section
10.01       Guarantee.


 


Any series of Securities may be guaranteed by one or
more of the Guarantors.  The terms and
the form of any such Guarantee will be established in the manner contemplated
by Section 2.01 for that particular series of Securities.


 


ARTICLE 11

MISCELLANEOUS


 


Section
11.01        Indenture Subject to Trust
Indenture Act.


 


This Indenture is subject to the provisions of the TIA
that are required to be part of this Indenture, and shall, to the extent
applicable, be governed by such provisions.


 


Section
11.02        Notices.


 


Any notice or communication is duly given if in
writing and delivered in person or sent by first-class mail (registered or
certified, return receipt requested), telecopier or overnight air courier
guaranteeing next-day delivery, addressed as follows:


 


If to the Company and/or
any Guarantor:


 


Eschelon Telecom, Inc.


730 Second Avenue South, Suite 900


Minneapolis, Minnesota
55402


Attention:  Geoffrey M. Boyd


Telephone:  (612)
376-4400


Facsimile:   (612)
376-4414


 


with a copy to:


 


38

















 


Latham & Watkins LLP


555 Eleventh Street, N.W., Suite 1000


Washington, D.C. 20004


Attention: 
David M. McPherson, Esq.


Telephone: 
(202) 637-2200


Facsimile: 
(202) 637-2201


 


If to the Trustee:


 


[                      ]


Attention:


Telephone:


Facsimile:


 


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


 


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


 


Any notice or communication to a Securityholder shall
be mailed by first-class mail, certified or registered, return receipt
requested, or by overnight air courier guaranteeing next day delivery to his
address shown on the register kept by the Registrar.  Failure to mail a notice or communication to
a Security holder or any defect in it shall not affect its sufficiency with
respect to other Securityholders.  If the
Company mails a notice or communication to Securityholders, it shall mail a
copy to the Trustee at the same time. 
Any notice or communication shall also be mailed to any Person described
in TIA §313(c), to the extent required by the TIA.


 


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


 


Section
11.03        Communication By Holders With Other
Holders.


 


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


 


39

















 


Section
11.04        Certificate and Opinion as to
Conditions Precedent.


 


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


 


(a)           an Officers’ Certificate, in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05 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 complied with; and


 


(b)           an Opinion of Counsel, in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of such counsel,
such action is authorized or permitted by this Indenture and that all such
conditions precedent have been complied with.


 


Section
11.05        Statements Required in Certificate
or Opinion.


 


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


 


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


 


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


 


(3)           a statement that, in the opinion of
such Person, he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to whether or
not such covenant or condition has been complied with; and


 


(4)           a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been complied with; provided, however, that with respect to matters of fact an
Opinion of Counsel may rely on an officer’s certificate or certificates of
public officials.


 


Section
11.06        Rules by Trustee and Agents.


 


The Trustee as to Securities of any series may make
reasonable rules for action by or at a meeting of Holders of Securities of that
series.  The Registrar and any Paying
Agent or Authenticating Agent may make reasonable rules and set reasonable
requirements for their functions.


 


40

















 


Section
11.07        Legal Holidays.


 


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


 


Section
11.08        No Recourse Against Others.


 


No past, present or future director, officer, employee,
manager, securityholder or incorporator, as such, of the Company or any
successor Person shall have any liability for any obligations of the Company or
any Guarantor under any series of Securities, any guarantees thereof, or the
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation.  Each
Securityholder by accepting a Security waives and releases all such
liability.  The waiver and release are
part of the consideration of issuance of the Securities.


 


Section
11.09       Counterparts.


 


This Indenture may be executed by the parties hereto
in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.


 


Section
11.10       Governing Law.


 


The internal laws of the State of New York shall
govern and be used to construe this Indenture and the Securities (including any
guarantees thereof), without giving effect to the applicable principles of
conflicts of laws to the extent that the application of the laws of another
jurisdiction would be required thereby.


 


Section
11.11       Submission to Jurisdiction; Service
of Process; Waiver of Jury Trial


 


Each party hereto hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State Court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Indenture, the
Securities (including any guarantee thereof) or the transactions contemplated
hereby and thereby.  Each party hereto
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such
a court has been brought in an inconvenient forum.  Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the State of New York.  Without
limiting the foregoing, the parties agree that service of process upon such
party at the address referred to in Section 11.02, together with written notice
of such service to such party, shall be deemed effective service of process
upon such party.  Each of the parties
hereto irrevocably waives any and all rights to trial by jury in any legal
proceeding arising out of or relating to this Indenture, the Securities
(including any guarantee thereof) or the transactions contemplated hereby and
thereby.


 


41

















 


Section
11.12       Severability.


 


In case any provision in this Indenture or in the
Securities 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
11.13       Effect of Headings, Table of
Contents, etc.


 


The Article and Section headings herein and the table
of contents are for convenience only and shall not affect the construction
hereof.


 


Section
11.14        
Successors and Assigns.


 


All covenants and agreements of the Company in this
Indenture and the Securities shall bind its successors and assigns.  All agreements of the Trustee in this
Indenture shall bind its successor.  All
agreements of any Guarantor in this Indenture shall bind its successors, except
as otherwise provided by the terms hereof.


 


Section
11.15        
No Interpretation of Other Agreements.


 


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


 


[Signature Page Follows]


 


42

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the date first above written.


 


 


	
   

  	
  ISSUER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ESCHELON TELECOM, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard Smith

  
	
   

  	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
						



 

















 


GUARANTORS:


 

















 


TRUSTEE:


 

















 


Schedule 1