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EXHIBIT 4.1    
    


        INDENTURE,

 
  Dated as March 17, 2004

 

AMONG

 
   ESCHELON OPERATING COMPANY,

 

as Issuer,

 
   THE GUARANTORS NAMED HEREIN,

 
  
as Guarantors,

 

AND

 
   THE BANK OF NEW YORK TRUST COMPANY, N.A.,

 
  
as Trustee

 
   83/8% Senior Second Secured Notes due 2010  





 
 

CROSS-REFERENCE TABLE  
    



	TIA Section
 
	 	Indenture Section
 

	310	(a)(1)	 	7.10
	 	(a)(2)	 	7.10
	 	(a)(3)	 	7.10
	 	(a)(4)	 	N.A.
	 	(a)(5)	 	7.10
	 	(b)	 	7.03; 7.08; 7.10
	 	(c)	 	N.A.
	311	(a)	 	7.03; 7.11
	 	(b)	 	7.03; 7.11
	 	(c)	 	7.03
	312	(a)	 	2.05
	 	(b)	 	7.07; 11.03
	 	(c)	 	11.03
	313	(a)	 	7.06
	 	(b)(1)	 	7.06
	 	(b)(2)	 	7.06
	 	(c)	 	7.06
	 	(d)	 	7.06
	314	(a)	 	4.06; 4.08
	 	(b)	 	12.03
	 	(c)(1)	 	4.06; 11.04
	 	(c)(2)	 	11.04
	 	(c)(3)	 	4.06
	 	(d)	 	12.04
	 	(e)	 	11.05
	 	(f)	 	N.A.
	315	(a)	 	7.01(b)
	 	(b)	 	7.05
	 	(c)	 	7.01(a)
	 	(d)	 	7.01(c)
	 	(e)	 	6.11
	316	(a)(last sentence)	 	2.09
	 	(a)(1)(A)	 	6.05
	 	(a)(1)(B)	 	6.04
	 	(a)(2)	 	N.A.
	 	(b)	 	6.07
	 	(c)	 	9.04
	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 



	
NOTE:
	This
 Cross-Reference Table shall not, for any purpose, be deemed to be a part of this Indenture. 






  



 
 

TABLE OF CONTENTS    
    



	 
	 	 
	 	 
	 	PAGE

	ARTICLE ONE    DEFINITIONS AND INCORPORATION BY REFERENCE	 	1
	 	 	SECTION 1.01.	 	Definitions	 	1
	 	 	SECTION 1.02.	 	Incorporation by Reference of Trust Indenture Act	 	21
	 	 	SECTION 1.03.	 	Rules of Construction	 	21
	ARTICLE TWO    THE NOTES	 	22
	 	 	SECTION 2.01.	 	Form and Dating	 	22
	 	 	SECTION 2.02.	 	Execution and Authentication; Aggregate Principal Amount	 	23
	 	 	SECTION 2.03.	 	Registrar and Paying Agent	 	23
	 	 	SECTION 2.04.	 	Obligations of Paying Agent	 	24
	 	 	SECTION 2.05.	 	Holder Lists	 	24
	 	 	SECTION 2.06.	 	Transfer and Exchange	 	24
	 	 	SECTION 2.07.	 	Replacement Notes	 	25
	 	 	SECTION 2.08.	 	Outstanding Notes	 	25
	 	 	SECTION 2.09.	 	Treasury Notes; When Notes Are Disregarded	 	25
	 	 	SECTION 2.10.	 	Temporary Notes	 	25
	 	 	SECTION 2.11.	 	Cancellation	 	26
	 	 	SECTION 2.12.	 	CUSIP Numbers	 	26
	 	 	SECTION 2.13.	 	Deposit of Moneys	 	26
	 	 	SECTION 2.14.	 	Book-Entry Provisions for Global Notes	 	26
	 	 	SECTION 2.15.	 	Special Transfer Provisions	 	27
	ARTICLE THREE    REDEMPTION	 	29
	 	 	SECTION 3.01.	 	Optional Redemption	 	29
	 	 	SECTION 3.02.	 	Mandatory Redemption	 	30
	 	 	SECTION 3.03.	 	Selection of Notes to Be Redeemed	 	30
	 	 	SECTION 3.04.	 	Notice of Redemption	 	30
	 	 	SECTION 3.05.	 	Effect of Notice of Redemption	 	31
	 	 	SECTION 3.06.	 	Deposit of Redemption Price	 	31
	 	 	SECTION 3.07.	 	Notes Redeemed in Part	 	32
	ARTICLE FOUR    COVENANTS	 	32
	 	 	SECTION 4.01.	 	Payment of Notes	 	32
	 	 	SECTION 4.02.	 	Maintenance of Office or Agency	 	32
	 	 	SECTION 4.03.	 	Corporate Existence	 	32
	 	 	SECTION 4.04.	 	Payment of Taxes and Other Claims	 	33
	 	 	SECTION 4.05.	 	Maintenance of Properties and Insurance	 	33
	 	 	SECTION 4.06.	 	Compliance Certificate; Notice of Default	 	33
	 	 	SECTION 4.07.	 	Compliance with Laws	 	34
	 	 	SECTION 4.08.	 	Reports to Holders	 	34
	 	 	SECTION 4.09.	 	Waiver of Stay, Extension or Usury Laws	 	35
	 	 	SECTION 4.10.	 	Limitation on Restricted Payments	 	35
	 	 	SECTION 4.11.	 	Limitations on Transactions with Affiliates	 	37
	 	 	SECTION 4.12.	 	Limitation on Incurrence of Additional Indebtedness	 	38
	 	 	SECTION 4.13.	 	Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	 	39
	 	 	SECTION 4.14.	 	Additional Subsidiary Guarantees	 	40
	 	 	SECTION 4.15.	 	Limitation on Change of Control	 	40
	 	 	SECTION 4.16.	 	Limitation on Asset Sales	 	42
	 	 	SECTION 4.17.	 	Limitation on Liens	 	43
	 	 	SECTION 4.18.	 	Conduct of Business	 	43
	 	 	SECTION 4.19.	 	Limitation on Issuances and Sales of Capital Stock of Subsidiaries	 	43
	 	 	SECTION 4.20.	 	Payments for Consent	 	44
	 	 	SECTION 4.21.	 	Subsequent Issuance	 	44
	 	 	SECTION 4.22.	 	Impairment of Lien	 	44
	 	 	SECTION 4.23.	 	Real Estate Mortgages and Filings	 	44
	ARTICLE FIVE    SUCCESSOR CORPORATION	 	45
	 	 	SECTION 5.01.	 	Merger, Consolidation and Sale of Assets	 	45
	 	 	SECTION 5.02.	 	Successor Corporation Substituted	 	46
	 	 	 	 	 	 	 





i





 

	ARTICLE SIX    DEFAULT AND REMEDIES	 	46
	 	 	SECTION 6.01.	 	Events of Default	 	46
	 	 	SECTION 6.02.	 	Acceleration	 	48
	 	 	SECTION 6.03.	 	Other Remedies	 	48
	 	 	SECTION 6.04.	 	Waiver of Past Defaults	 	49
	 	 	SECTION 6.05.	 	Control by Majority	 	49
	 	 	SECTION 6.06.	 	Limitation on Suits	 	49
	 	 	SECTION 6.07.	 	Rights of Holders to Receive Payment	 	50
	 	 	SECTION 6.08.	 	Collection Suit by Trustee or Collateral Agent	 	50
	 	 	SECTION 6.09.	 	Trustee May File Proofs of Claim	 	50
	 	 	SECTION 6.10.	 	Priorities	 	50
	 	 	SECTION 6.11.	 	Undertaking for Costs	 	51
	 	 	SECTION 6.12.	 	Restoration of Rights and Remedies	 	51
	 	 	SECTION 6.13.	 	Rights and Remedies Cumulative	 	51
	 	 	SECTION 6.14.	 	Delay or Omission not Waiver	 	51
	ARTICLE SEVEN    TRUSTEE	 	52
	 	 	SECTION 7.01.	 	Duties of Trustee	 	52
	 	 	SECTION 7.02.	 	Rights of Trustee	 	53
	 	 	SECTION 7.03.	 	Individual Rights of Trustee	 	54
	 	 	SECTION 7.04.	 	Trustee's Disclaimer	 	54
	 	 	SECTION 7.05.	 	Notice of Default	 	55
	 	 	SECTION 7.06.	 	Reports by Trustee to Holders	 	55
	 	 	SECTION 7.07.	 	Compensation and Indemnity	 	55
	 	 	SECTION 7.08.	 	Replacement of Trustee	 	56
	 	 	SECTION 7.09.	 	Successor Trustee by Merger, Etc	 	57
	 	 	SECTION 7.10.	 	Eligibility; Disqualification	 	58
	 	 	SECTION 7.11.	 	Preferential Collection of Claims Against Company	 	58
	 	 	SECTION 7.12.	 	Trustee as Collateral Agent and Paying Agent	 	58
	 	 	SECTION 7.13.	 	Co-Trustees, Co-Collateral Agent and Separate Trustees,

Collateral Agent	 	58
	ARTICLE EIGHT    SATISFACTION AND DISCHARGE OF INDENTURE	 	59
	 	 	SECTION 8.01.	 	Legal Defeasance and Covenant Defeasance	 	59
	 	 	SECTION 8.02.	 	Satisfaction and Discharge	 	61
	 	 	SECTION 8.03.	 	Survival of Certain Obligations	 	62
	 	 	SECTION 8.04.	 	Acknowledgment of Discharge by Trustee	 	62
	 	 	SECTION 8.05.	 	Application of Trust Moneys	 	62
	 	 	SECTION 8.06.	 	Repayment to the Company; Unclaimed Money	 	62
	 	 	SECTION 8.07.	 	Reinstatement	 	63
	 	 	SECTION 8.08.	 	Indemnity for Government Obligations	 	63
	ARTICLE NINE    AMENDMENTS, SUPPLEMENTS AND WAIVERS	 	63
	 	 	SECTION 9.01.	 	Without Consent of Holders	 	63
	 	 	SECTION 9.02.	 	With Consent of Holders	 	64
	 	 	SECTION 9.03.	 	Compliance with TIA	 	65
	 	 	SECTION 9.04.	 	Revocation and Effect of Consents	 	65
	 	 	SECTION 9.05.	 	Notation on or Exchange of Notes	 	66
	 	 	SECTION 9.06.	 	Trustee to Sign Amendments, Etc	 	66
	 	 	SECTION 9.07.	 	Conformity with Trust Indenture Act	 	66
	ARTICLE TEN    GUARANTEE	 	66
	 	 	SECTION 10.01.	 	Guarantee	 	66
	 	 	SECTION 10.02.	 	Release of a Guarantor	 	67
	 	 	SECTION 10.03.	 	Limitation of Guarantor's Liability	 	68
	 	 	SECTION 10.04.	 	Guarantors May Consolidate, etc., on Certain Terms	 	68
	 	 	SECTION 10.05.	 	Contribution	 	69
	 	 	SECTION 10.06.	 	Waiver of Subrogation	 	69
	 	 	SECTION 10.07.	 	Evidence of Guarantee	 	69
	 	 	SECTION 10.08.	 	Waiver of Stay, Extension or Usury Laws	 	69
	 	 	 	 	 	 	 



ii





 

	ARTICLE ELEVEN    MISCELLANEOUS	 	70
	 	 	SECTION 11.01.	 	Trust Indenture Act Controls	 	70
	 	 	SECTION 11.02.	 	Notices	 	70
	 	 	SECTION 11.03.	 	Communications by Holders with Other Holders	 	71
	 	 	SECTION 11.04.	 	Certificate and Opinion as to Conditions Precedent	 	71
	 	 	SECTION 11.05.	 	Statements Required in Certificate or Opinion	 	72
	 	 	SECTION 11.06.	 	Rules by Trustee, Paying Agent, Registrar	 	72
	 	 	SECTION 11.07.	 	Legal Holidays	 	72
	 	 	SECTION 11.08.	 	Governing Law	 	72
	 	 	SECTION 11.09.	 	No Adverse Interpretation of Other Agreements	 	72
	 	 	SECTION 11.10.	 	No Recourse Against Others	 	72
	 	 	SECTION 11.11.	 	Successors	 	73
	 	 	SECTION 11.12.	 	Duplicate Originals	 	73
	 	 	SECTION 11.13.	 	Severability	 	73
	 	 	SECTION 11.14.	 	Waiver of Jury Trial	 	73
	ARTICLE TWELVE    AGREEMENT TO SUBORDINATE SECURITY INTERESTS; SECURITY	 	73
	 	 	SECTION 12.01.	 	Grant of Security Interest	 	73
	 	 	SECTION 12.02.	 	Intercreditor Agreement	 	74
	 	 	SECTION 12.03.	 	Recording and Opinions	 	74
	 	 	SECTION 12.04.	 	Release of Collateral	 	74
	 	 	SECTION 12.05.	 	Specified Releases of Collateral	 	75
	 	 	SECTION 12.06.	 	Release upon Satisfaction or Defeasance of all Outstanding Obligations	 	75
	 	 	SECTION 12.07.	 	Form and Sufficiency of Release	 	75
	 	 	SECTION 12.08.	 	Purchaser Protected	 	76
	 	 	SECTION 12.09.	 	Authorization of Actions to Be Taken by the Collateral Agent Under the Collateral Agreements	 	76
	 	 	SECTION 12.10.	 	Authorization of Receipt of Funds by the Collateral Agent Under the Collateral Agreements	 	76




iii





 


	Exhibit A	 	—	 	Form of Initial Note	 	A-1
	Exhibit B	 	—	 	Form of Exchange Note	 	B-1
	Exhibit C	 	—	 	Form of Legend for Global Notes	 	C-1
	Exhibit D	 	—	 	Form of Certificate to Be Delivered in Connection with Transfers to Non-QIB Accredited Investors	 	D-1
	Exhibit E	 	—	 	Form of Certificate to Be Delivered in Connection with Transfers Pursuant to Regulation S	 	E-1
	Exhibit F	 	—	 	Form of Intercreditor Agreement	 	F-1




	NOTE:
	This
Table of Contents shall not, for any purpose, be deemed to be part of this Indenture. 


iv









        INDENTURE, dated as of March 17, 2004, among Eschelon Operating Company, a Minnesota corporation (the "Company"), the Guarantors (as herein defined)
and The Bank of New York Trust Company, N.A., as Trustee (in such capacity, the "Trustee") and Collateral Agent (in such capacity, the "Collateral
Agent"). 


W I T N E S S E T H:  


        WHEREAS, the Company and the Guarantors (with respect to the Guarantees) have duly authorized the creation of an issue of 83/8% Senior Second
Secured Notes due 2010 (the "Initial Notes"), and 83/8% Senior Second Secured Exchange Notes due 2010 (the "Exchange Notes,"
and collectively with the Initial Notes and any Additional Notes (as herein defined), the "Notes") and the Guarantees (as herein defined) and, to provide therefor, the
Company and the Guarantors have duly authorized the execution and delivery of this Indenture; and 



        WHEREAS,
all things necessary to make the Notes and Guarantees, when each are duly issued and executed by the Company and the Guarantors, as applicable, and authenticated and delivered
hereunder, the valid obligations of each of the Company and the Guarantors, respectively, and to make this Indenture a valid and binding agreement of each of the Company and the Guarantors, have been
done. 


        NOW,
THEREFORE, each party hereto agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders: 


 
 

ARTICLE ONE    
    
    DEFINITIONS AND INCORPORATION BY REFERENCE    
    


        SECTION
1.01. Definitions. 


        "Acceleration
Notice" has the meaning set forth in Section 6.02(a). 


        "Accreted
Value" means, as of any date (the "Specified Date"), with respect to each $1,000 principal amount at maturity of
Notes: 


        (1)
if the Specified Date is one of the following dates (each, a "Semi-Annual Accrual Date"), the amount set forth opposite such date below: 



	Semi-Annual Accrual Date
 
	 	Accreted Value

	Issue Date	 	$	848.13
	September 15, 2004	 	 	857.04
	March 15, 2005	 	 	866.59
	September 15, 2005	 	 	876.71
	March 15, 2006	 	 	887.44
	September 15, 2006	 	 	898.81
	March 15, 2007	 	 	910.86
	September 15, 2007	 	 	923.64
	March 15, 2008	 	 	937.18
	September 15, 2008	 	 	951.54
	March 15, 2009	 	 	966.76
	September 15, 2009	 	 	982.89
	March 15, 2010	 	$	1,000.00





        (2)
if the Specified Date occurs between two Semi-Annual Accrual Dates, the sum of (A) the Accreted Value for the Semi-Annual Accrual Date immediately
preceding the Specified Date and (B) an amount equal to the product of (a) the difference of (x) the Accreted Value for the immediately following Semi-Annual Accrual
Date and (y) the Accreted Value for the immediately preceding Semi-Annual Accrual Date and (b) a fraction, the numerator of which is the number of days elapsed from the
immediately preceding Semi-Annual Accrual Date to the Specified Date, calculated on a basis 





 



of
a 360 day year comprised of twelve 30 day months, and the denominator of which is 180 days, except for the period from the Issue Date to the first Semi-Annual
Accrual Date immediately succeeding the Issue Date, which is 178 days. 


        "Acquired
Indebtedness" means Indebtedness of a Person or any of its Subsidiaries (a) existing at the time such Person becomes a Restricted Subsidiary
of the Company or Parent or at the time it merges or consolidates with or into the Company or Parent or any of their respective Restricted Subsidiaries or (b) assumed in connection with the
acquisition of assets from such Person, and in each case not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary of the
Company or Parent or such acquisition, merger or consolidation and which Indebtedness is without recourse to the Company or Parent or any of their respective Subsidiaries or to any of their respective
properties or assets other than the Person or the assets to which such Indebtedness related prior to the time such Person became a Restricted Subsidiary of the Company or Parent or the time of such
acquisition, merger or consolidation. 


        "Additional
Interest" has the meaning set forth in the Registration Rights Agreement. 


        "Additional
Notes" means any Notes that are not Exchange Notes issued after the Issue Date from time to time in accordance with the terms of this Indenture
including, without limitation, the provisions of Sections 2.02, 4.12 and 4.21. 



        "Affiliate"
means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. The term "control" means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; provided, that
Beneficial Ownership of 10% or
more of the Voting Stock of the Person shall be deemed to be control. The terms "controlling" and "controlled" have meanings correlative of
the foregoing. 


        "Affiliate
Transaction" has the meaning set forth in Section 4.11. 


        "Agent"
means any Registrar, Paying Agent or co-Registrar. 


        "Agent
Members" has the meaning set forth in Section 2.14(a) and means, with respect to the Depository, Euroclear or
Clearstream, a Person who has an account with the Depository, Euroclear or Clearstream, respectively (and, with respect to the Depository, shall include Euroclear and Clearstream). 


        "Applicable
Indebtedness" means any Indebtedness that is pari passu with the Notes. 


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


        "Asset
Acquisition" means: 



        (1)
an Investment by Parent or any Restricted Subsidiary of Parent in any other Person pursuant to which such Person shall become a Restricted Subsidiary of Parent or any Restricted
Subsidiary of Parent, or shall be merged with or into Parent or any Restricted Subsidiary of Parent, or 



        (2)
the acquisition by Parent or any Restricted Subsidiary of Parent of the assets of any Person (other than a Restricted Subsidiary of Parent) which constitute all or substantially all
of the assets of such Person or comprise any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business. 



2





 





        "Asset
Sale" means any direct or indirect sale, issuance, conveyance, transfer, lease (other than operating leases entered into in the ordinary course of
business), assignment or other transfer (other
than a Lien in accordance with this Indenture) for value by (x) Parent or any of its Restricted Subsidiaries to any Person other than the Company or a Guarantor or (y) a Foreign
Restricted Subsidiary to Parent or a Restricted Subsidiary of Parent of: 



        (1)
any Capital Stock of any Restricted Subsidiary of Parent; or 


        (2)
any other property or assets of Parent or any Restricted Subsidiary of Parent other than in the ordinary course of business; provided,  however, that Asset
Sales shall not include: 



        (a)
a transaction or series of related transactions for which Parent or its Restricted Subsidiaries receive aggregate consideration of less than $1.0 million; 


        (b)
the sale, lease, conveyance, disposition or other transfer of all or substantially all of the assets of Parent or the Company as permitted in
Section 5.01; 


        (c)
any Restricted Payment permitted in Section 4.10, including a Permitted Investment; 


        (d)
the sale of Cash Equivalents; 


        (e)
the sale or other disposal of property or assets pursuant to the exercise of any remedies pursuant to the documents relating to any First Priority Claims permitted under the
Indenture; and 


        (f)
the sale or other disposition of used, worn out, obsolete or surplus equipment. 





        "Authenticating
Agent" has the meaning set forth in Section 2.02. 


        "Automatic
Exchange" has the meaning set forth in Section 4.21. 


        "Bankruptcy
Code" means the Bankruptcy Reform Act of 1978, as amended, and codified as 11 U.S.C. §§101 et seq. 


        "Beneficial
Owner" has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except
that in calculating the beneficial ownership of any particular "person" (as that term is used in Section 13(d)(3) of the Exchange Act), such "person" will be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition. The terms "Beneficially Owns" and "Beneficially Owned" have meanings correlative to the foregoing. 


        "Board
of Directors" means, as to any Person, the board of directors or similar governing body of such Person or any duly authorized committee thereof. 



        "Board
Resolution" means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been
duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee. 


        "Business
Day" means a day that is not a Legal Holiday. 


        "Capital
Stock" means: 



        (1)
with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate
stock, including each class of Common Stock and Preferred Stock of such Person; 


        (2)
with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person; and 



3





 




        (3)
any warrants, rights or options to purchase any of the instruments or interests referred to in clause (1) or (2) above. 




        "Capitalized
Lease Obligation" means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as
capital lease obligations under GAAP and, for
purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP. 


        "Cash
Equivalents" means: 



        (1)
marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of acquisition thereof; 


        (2)
marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within
one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor's Ratings Group
("S&P") or Moody's Investors Service, Inc. ("Moody's"); 



        (3)
commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least
P-1 from Moody's; 


        (4)
certificates of deposit or bankers' acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the laws of the United States of
America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined net capital and surplus of not less than
$250.0 million; 



        (5)
repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) above entered into with any bank meeting the
qualifications specified in clause (4) above; and 


        (6)
investments in money market funds which invest substantially all their assets in securities of the types described in clauses (1) through (5) above. 




        "Change
of Control" means the occurrence of one or more of the following events: 



        (1)
any direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one transaction or a series of related transactions,
of all or substantially all of the assets of Parent to any Person or group of related Persons for purposes of Section 13(d) of the
Exchange Act (a "Group"), other than a transaction in which the transferee is controlled by one or more Permitted Holders; 


        (2)
Parent consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, Parent, other than (a) a transaction in which the
surviving or Transferee Person is a Person that is controlled by the Permitted Holders or (b) any such transaction where the Voting Stock of Parent outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than Disqualified Capital Stock) of the surviving or transferee Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance). 


        (3)
the approval of any plan or proposal for the liquidation, winding up or dissolution of Parent or the Company; 


        (4)
prior to the first Public Equity Offering, (a) the Permitted Holders cease for any reason to be the Beneficial Owner of, directly or indirectly, in the aggregate, at least a
majority of the total voting power of the Voting Stock of Parent, whether by virtue of the issuance, sale or other 



4





 




disposition
of Capital Stock of Parent, a merger, consolidation or sale of assets involving Parent, a Restricted Subsidiary, any voting trust or other agreement, and, (b) one or more Permitted
Holders do not have the right to elect a majority of the Board of Directors of Parent; 


        (5)
subsequent to the first Public Equity Offering, (a) any Person or Group is or becomes the Beneficial Owner, directly or indirectly, in the aggregate of more than 35% of the
total voting power of the Voting Stock of Parent, and (b) the Permitted Holders Beneficially Own, directly or indirectly, in the aggregate a lesser percentage of the total voting power of the
Voting Stock of Parent than such other Person or Group, and (c) one or more Permitted Holders do not have the right to elect a majority of the Board of Directors of Parent; or 


        (6)
individuals who on the Issue Date constituted the Board of Directors of Parent (together with any new directors whose election by such Board of Directors or whose nomination for
election by the stockholders of Parent was approved pursuant to a vote of a majority of the directors then still in office who were either directors on the Issue Date or whose election or nomination
for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors then in office. 




        "Change
of Control Offer" has the meaning set forth in Section 4.15(a). 


        "Change
of Control Payment Date" has the meaning set forth in Section 4.15(b)(2). 


        "Change
of Control Redemption Right" has the meaning set forth in Section 3.01(b). 



        "Clearstream"
means Clearstream Banking, societe anonyme. 


        "Code"
means the Internal Revenue Code of 1986, as amended. 


        "Collateral"
means collateral as such term is defined in the Security Agreement, all property mortgaged under the Mortgages and any other property, whether
now owned or hereafter acquired, upon which a Lien securing the Obligations under the Indenture and the Notes is granted or purported to be granted under any Collateral Agreement. The Collateral does
not include assets constituting Excluded Collateral. 


        "Collateral
Agent" means the Trustee, in its capacity as collateral agent under the Collateral Agreements, and any successor under the Indenture. 


        "Collateral
Agreements" means, collectively, the Security Agreement, the Intercreditor Agreement and each Mortgage, in each case, as the same may be in force
from time to time. 


        "Commission"
means the Securities and Exchange Commission. 


        "Common
Stock" of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or
non-voting) of such Person's common stock, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common
stock. 


        "Communications
Law" means any and all of (a) the Communications Act of 1934, as amended by the Telecommunications Act of 1996, any successor federal
statute and the rules and regulations of the FCC thereunder and any other federal law governing the provision of telecommunications services and the rules and regulations thereunder and (b) any
state law governing the provision of telecommunications services and the rules and regulations of any PUC, all as the same may be in effect from time to time. 



        "Company"
means the party named as such in this Indenture until a successor replaces it pursuant to this Indenture and thereafter means such successor. 


5





 

        "Consolidated
Cash Flow" means, with respect to any Person, for any period, the sum (without duplication) of: 



        (1)
Consolidated Net Income; and 


        (2)
to the extent Consolidated Net Income has been reduced thereby: 



        (a)
all income taxes of such Person and its Restricted Subsidiaries paid or accrued in accordance with GAAP for such period; 


        (b)
Consolidated Interest Expense, and interest attributable to write-offs of deferred financing costs; and 


        (c)
Consolidated Non-cash Charges less any non-cash items increasing Consolidated Net Income for such period. 





all
as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with GAAP. 


        "Consolidated
Fixed Charges" means, with respect to any Person for any period, the sum, without duplication, of: 



        (1)
Consolidated Interest Expense (excluding amortization or write-off of deferred financing costs); plus 


        (2)
the product of (x) the amount of all dividend payments on any Disqualified Capital Stock of such Person and any Preferred Stock of any Restricted Subsidiary of such Person
(other than dividends paid in Qualified Capital Stock and dividends paid to such Person or any of its Restricted Subsidiaries) paid or required to be paid during such period
times (y) a fraction, the numerator of which is one and the denominator of which is one minus the then current effective consolidated federal, state and local tax
rate of such Person, expressed as a decimal. 




        "Consolidated
Interest Expense" means, with respect to any Person for any period, the aggregate of the interest expense of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, as determined in accordance with GAAP, and including, without duplication, (a) all amortization or accretion of original issue discount;
(b) the interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period; and
(c) net cash costs under all Interest Swap Obligations (including amortization of fees). 


        "Consolidated
Net Income" means, with respect to any Person, for any period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance with GAAP; provided, however, that there shall be excluded therefrom: 



        (1)
after-tax gains and losses from Asset Sales or abandonments or reserves relating thereto; 


        (2)
after-tax items classified as extraordinary gains or losses; 


        (3)
the net income (but not loss) of any Restricted Subsidiary of the referent Person to the extent that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is restricted by a contract, operation of law or otherwise (other than any such restrictions applicable to the Company and other than any such restrictions imposed by the
Credit Agreement so long as the Credit Agreement does not restrict dividends or distributions to the Company); 



        (4)
the net income of any Person, other than the referent Person or a Restricted Subsidiary of the referent Person, except to the extent of cash dividends or distributions paid to the
referent Person or to a wholly-owned Restricted Subsidiary of the referent Person by such Person; 



6





 




        (5)
any restoration to income of any material contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time
following the Issue Date; 


        (6)
income or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period whether or not such operations were classified as
discontinued); 


        (7)
all gains and losses realized on or because of the purchase or other acquisition by such Person or any of its Restricted Subsidiaries of any securities of such Person or any of its
Restricted Subsidiaries; 


        (8)
the cumulative effect of a change in accounting principles; 


        (9)
interest expense attributable to dividends on Qualified Capital Stock pursuant to Statement of Financial Accounting Standards No. 150, "Accounting for Certain Financial
Instruments with Characteristics of both Liabilities and Equity;" 


        (10)
non-cash charges resulting from the impairment of intangible assets; and 


        (11)
in the case of a successor to the referent Person by consolidation or merger or as a transferee of the referent Person's assets, any earnings (or losses) of the successor
corporation prior to such consolidation, merger or transfer of assets. 




        "Consolidated
Net Worth" of any Person means the consolidated stockholders' equity of the Person, determined on a consolidated basis in accordance with GAAP,
less (without duplication) amounts attributable to Disqualified Capital Stock of such Person. 


        "Consolidated
Non-cash Charges" means, with respect to any Person, for any period, the aggregate depreciation, amortization and other
non-cash items and expenses of such Person and its Restricted Subsidiaries to the extent they reduce Consolidated Net Income of such Person and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such charges constituting an extraordinary item or loss or any such charge which requires an accrual of or a reserve for cash
charges for any future period). 


        "Corporate
Trust Office" means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally
administered, which office is, at the date of this
Indenture, located at Plaza of the Americas, 600 North Pearl Street, Suite 420, Dallas, Texas 75201, Attn: Corporate Trust Division. 


        "Covenant
Defeasance" has the meaning set forth in Section 8.01(c). 


        "Credit
Agreement" means any agreement entered into from time to time with banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing or letters of credit, or notes, bonds, debentures or other securities, together with the related documents thereto (including, without limitation, any guarantee agreements
and security documents), in each case as such agreements may be amended, supplemented or otherwise modified from time to time, including any agreement extending the maturity of, refinancing, replacing
or otherwise restructuring (including increasing the amount of available borrowings thereunder (provided that such increase in borrowings is permitted under clause (2) of the definition of the
term "Permitted Indebtedness) or adding Subsidiaries of the Company as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or group of lenders. 


        "Currency
Agreement" means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company
or any Restricted Subsidiary of the Company against fluctuations in currency values. 


7





 



        "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Code. 


        "Default"
means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default. 


        "Depository"
means The Depository Trust Company, its nominees and successors ("DTC"). 


        "Disqualified
Capital Stock" means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event that would constitute a Change of Control), matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except in each case, upon the occurrence of a Change of Control) on or prior to the first
anniversary of the final maturity date of the
Notes for cash or is convertible into or exchangeable for debt securities of the Parent or its Subsidiaries at any time prior to such anniversary. 


        "Domestic
Restricted Subsidiary" means, with respect to any Person, a Domestic Subsidiary of such Person that is a Restricted Subsidiary of such Person. 



        "Domestic
Subsidiary" means, with respect to any Person, a Subsidiary of such Person that is not a Foreign Subsidiary of such Person. 


        "Eligible
Accounts Receivable" means the accounts receivable (net of any reserves and allowances for doubtful accounts in accordance with GAAP) of any Person
that are not more than 60 days past their due date and that were entered into in the ordinary course of business on normal payment terms as shown on the most recent financial consolidated
balance sheet of such Person, all in accordance with GAAP. 


        "Equity
Offering" means an underwritten public offering of Common Stock of Parent pursuant to a registration statement filed with the SEC (other than on
Form S-8) or any private placement of Common Stock of the Parent to any Person other than issuances upon exercise of options by employees of Parent or any of the Restricted
Subsidiaries. 


        "Euroclear"
means Euroclear Bank S.A./N.V., as operator of the Euroclear system. 


        "Event
of Default" has the meaning set forth in Section 6.01. 


        "Exchange
Act" means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto. 


        "Exchange
Notes" has the meaning set forth in the preamble to this Indenture and means the Notes, if any, issued under
Section 2.02 pursuant to a registration rights agreement substantially similar to the Registration Rights Agreement. 


        "Exchange
Offer" means an exchange offer that may be made by Parent and the Company, pursuant to the Registration Rights Agreement, to exchange for any and
all the Notes a like aggregate principal amount at maturity of Notes having substantially identical terms to the Notes registered under the Securities Act. 



        "Excluded
Collateral" means any property excluded from Collateral pursuant to the terms of the Collateral Agreements. 


8







   
        "Fair Market Value" means, with respect to any asset or property, the price which could be negotiated in an arm's length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market Value shall be determined by the Board of
Directors of the Company acting in good faith and shall be evidenced by a Board Resolution of the Board of Directors of the Company delivered to the Trustee. 



        "FCC"
means the Federal Communications Commission of the United States of America, and any successor, in whole or in part, to its jurisdiction. 


        "First
Lien Agent" means the Person or Persons designated as such by the holders of First Priority Claims. 


        "First
Priority Cash Management Obligations" means all obligations of the Company and the Guarantors in respect of overdrafts and related liabilities owed to
any other Person that arise from treasury, depositary or cash management services, including in connection with any automated clearing house transfers of funds, or any similar transactions, secured by
any assets constituting Collateral under the documents that secure First Priority Claims. 


        "First
Priority Claims" means (a) Indebtedness permitted pursuant to clause (2) of the definition of Permitted Indebtedness,
(b) Indebtedness incurred in compliance with Section 4.12 and which is secured by a Lien permitted pursuant to clause (18) of the definition of Permitted Liens and Refinancing
Indebtedness with respect thereto, and (c) all other Obligations under the documents relating to Indebtedness described in clauses (a) and (b) above. 


        "Foreign
Restricted Subsidiary" means any Restricted Subsidiary that is organized under the laws of any jurisdiction other than the United States of America,
any state thereof or the District of Columbia. 


        "Foreign
Subsidiary" means, with respect to any Person, any Subsidiary of such Person that is organized under the laws of any jurisdiction other than the
United States of America, any state thereof or the District of Columbia. 


        "GAAP"
means accounting principles generally accepted in the United States 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 may be approved
by a significant segment of the accounting profession of the United States, which are in effect as of the Issue Date. 


        "Global
Note" has the meaning set forth in Section 2.01. 


        "Guarantee"
has the meaning set forth in Section 10.01 


        "Guarantor"
means each of Parent and the Subsidiary Guarantors. 


        "Holder"
means the Person in whose name a Note is registered on the registrar's books. 



        "incur"
has the meaning set forth in Section 4.12. 


        "Indebtedness"
means with respect to any Person, without duplication: 



        (1)
all Obligations of such Person for borrowed money; 


        (2)
all Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; 


        (3)
all Capitalized Lease Obligations of such Person; 



9





 




        (4)
all Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations under any title retention agreement
(but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business that are not overdue by 90 days or more or are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted and any deferred purchase price represented by earn outs); 



        (5)
all Obligations for the reimbursement of any obligor on any letter of credit, banker's acceptance or similar credit transaction, whether or not then due; 


        (6)
guarantees and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below; 


        (7)
all Obligations of any other Person of the type referred to in clauses (1) through (6) which are secured by any Lien on any property or asset of such Person, the amount
of any such Obligation being deemed to be the lesser of the Fair Market Value of the property or asset securing such Obligation or the amount of such Obligation; 



        (8)
all Interest Swap Obligations and all Obligations under Currency Agreements of such Person; and 


        (9)
all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any. 




Notwithstanding
the foregoing, Indebtedness shall not include any Qualified Capital Stock. For purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on
any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the Fair Market Value of such Disqualified Capital Stock,
such Fair Market Value shall be determined reasonably and in good faith by the Board of Directors of the issuer of such Disqualified Capital Stock. 


        "Indemnified
Party" has the meaning set forth in Section 7.07. 


        "Indenture"
means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof. 


        "Independent
Financial Advisor" means a nationally-recognized accounting, appraisal or investment banking firm: (1) that does not, and whose
directors, officers and employees or Affiliates do not, have a direct or indirect financial interest in the Company; and (2) that, in the judgment of the Board of Directors of Parent, is
otherwise independent and qualified to perform the task for which it is to be engaged. 


        "Initial
Notes" has the meaning set forth in the preamble to this Indenture. 


        "Initial
Purchasers" means Jefferies & Company, Inc. and Wachovia Capital Markets, LLC. 


        "Institutional
Accredited Investor" means an institution that is an "accredited investor" as that term is defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act. 


        "Intercreditor
Agreement" means the intercreditor agreement to be entered into by the First Lien Agent and the Trustee, substantially in the form attached
hereto as Exhibit F, with such changes thereto as may be necessary to add additional parties as "First Priority Lenders" or "Second Priority Lenders" 


10





 



or
as may be reasonably requested by the First Lien Agent so long as such changes do not materially adversely affect the rights and obligations of the Holders. 


        "Interest
Payment Date" means the stated maturity of an installment of interest on the Notes. 


        "Interest
Swap Obligations" means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments
made by such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements. 


        "Investment"
in any Person means any direct or indirect advance, loan (other than advances to customers in the ordinary course of business that are recorded
as accounts receivable on the balance sheet of the lender) or other extensions of credit (including by way of guarantee or similar arrangement) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition for value of Capital Stock, Indebtedness or other similar
instruments issued by such Person. If Parent or any Restricted Subsidiary issues, sells or otherwise disposes of any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving
effect thereto, such Person is no longer a Restricted Subsidiary, any Investment by Parent or any Restricted Subsidiary in such Person remaining after giving effect thereto will be deemed to be a new
Investment at such time. The acquisition by Parent or any Restricted Subsidiary of a Person that holds an Investment in a third Person will be deemed to be an Investment by Parent or such Restricted
Subsidiary in such third Person at such time.
Except as otherwise provided for herein, the amount of an Investment shall be its fair market value at the time the Investment is made and without giving effect to subsequent changes in value. 


        For
purposes of the definition of "Unrestricted Subsidiary", the definition of "Restricted Payment" and the covenant described in Section 4.10: 



        (i)
"Investment" shall include the portion (proportionate to Parent's equity interest in such Subsidiary) of the fair market value of the net assets of any Subsidiary of Parent at the
time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, Parent shall be deemed to continue to have a permanent "Investment" in an Unrestricted Subsidiary equal to an amount (if positive) equal to
(A) Parent's "Investment" in such Subsidiary at the time of such redesignation less (B) the portion (proportionate to Parent's equity interest in such Subsidiary) of the Fair Market
Value of the net assets of such Subsidiary at the time of such redesignation; and 


        (ii)
any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer, in each case as determined in good faith by the
Board of Directors of Parent. 




        "Issue
Date" means March 17, 2004. 


        "Legal
Defeasance" has the meaning set forth in Section 8.01(b). 


        "Legal
Holiday" has the meaning set forth in Section 11.07. 


        "Lien"
means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give any security interest). 


        "Leverage
Ratio" has the meaning set forth in Section 4.12. 


        "Mandatory
Principal Redemption Amount" has the meaning set forth in Section 3.02. 


11





 



        "Maturity
Date" means March 15, 2010. 


        "Mortgages"
means the mortgages, deeds of trust, deeds to secure Indebtedness or other similar documents, if any, granting Liens on the Premises, as well as
the other Collateral secured by and described in the mortgages, deeds of trust, deeds to secure Indebtedness or other similar documents required to be delivered pursuant to
Section 4.23. 


        "Net
Cash Proceeds" means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents including payments in respect of deferred
payment obligations when received in the form of cash or Cash Equivalents (other than the portion of any such deferred payment constituting interest) received by Parent or any of its Restricted
Subsidiaries from such Asset Sale net of: 



        (1)
reasonable out-of-pocket expenses and fees relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees and sales
commissions); 


        (2)
all taxes and other costs and expenses actually paid or estimated by Parent (in good faith) to be payable in cash in connection with such Asset Sale; 



        (3)
repayment of Indebtedness that is secured by the property or assets that are the subject of such Asset Sale and is required to be repaid in connection with such Asset Sale; and 


        (4)
appropriate amounts to be provided by Parent or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such
Asset Sale and retained by Parent or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale; 




provided, however, that if, after the payment of all taxes with respect to such Asset Sale, the amount of estimated taxes, if any, pursuant to
clause (2) above exceeded the tax amount actually paid in cash in
respect of such Asset Sale, the aggregate amount of such excess shall, at such time, constitute Net Cash Proceeds. 


        "Net
Proceeds Offer" has the meaning set forth in Section 4.16(3)(c). 


        "Net
Proceeds Offer Amount" has the meaning set forth in Section 4.16(3)(c). 


        "Net
Proceeds Offer Payment Date" has the meaning set forth in Section 4.16(3)(c). 


        "Net
Proceeds Offer Trigger Date" has the meaning set forth in Section 4.16(3)(c). 


        "Non-U.S.
Person" means a Person who is not a U.S. person, as defined in Regulation S. 


        "Notes"
has the meaning set forth in the preamble to this Indenture and means the Initial Notes, the Additional Notes, if any, and the Exchange Notes treated
as a single class of securities, as amended or supplemented from time to time in accordance with the terms hereof, that are issued pursuant to this Indenture. 



        "Obligations"
means all obligations for principal, premium, interest, Additional Interest, penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under the documentation governing any Indebtedness. 


        "Offering"
means the offering of the Notes hereunder. 


        "Officer"
means the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President or the Secretary of the Company. 



        "Officers'
Certificate" means a certificate signed by two Officers of the Company, at least one of whom shall be the principal financial officer of the
Company, and delivered to the Trustee. 


12





 



        "Opinion
of Counsel" means a written opinion of counsel who shall be reasonably acceptable to the Trustee. 



        "Paying
Agent" has the meaning set forth in Section 2.03. 


        "Permanent
Regulation S Global Note" has the meaning set forth in Section 2.01. 


        "Permitted
Business" means: 



        (1)
the delivery or distribution of telecommunications, voice, data or video services; 


        (2)
any business or activity reasonably related or ancillary to those listed above, including, any business the Parent or a Restricted Subsidiary conducts on the Issue Date, and the
acquisition, holding or exploitation of any license relating to the delivery of those services; or 


        (3)
any other business or activity in which the Parent and the Restricted Subsidiaries expressly contemplate engaging under the provisions of Parent's certificate of incorporation and
bylaws as in effect on the Issue Date. 




        "Permitted
Holders" means: Bain Capital Fund VI, L.P., Wind Point Partners IV, L.P., Stolberg Partners, L.P. and their respective Affiliates and
(ii) Clifford D. Williams and Richard A. Smith (the "Management Holders"); provided, that in determining the Voting
Stock Beneficially Owned by the Management Holders, any Voting Stock purchased by the Company or the Management Holders with proceeds from the incurrence of Indebtedness by the Company or an Affiliate
of the Company shall be disregarded. 


        "Permitted
Indebtedness" means, without duplication, each of the following: 



        (1)
Indebtedness under the Notes issued in the Offering or in the Exchange Offer in an aggregate outstanding principal amount at maturity not to exceed $100.0 million and the
related Guarantees; 


        (2)
Indebtedness incurred pursuant to the Credit Agreement in an aggregate principal amount at any time outstanding not to exceed the greater of (a) $20.0 million or
(b) the sum of 80% of Eligible Accounts Receivable and 50% of consolidated inventory of Parent and its Restricted Subsidiaries; 


        (3)
other Indebtedness of Parent and its Restricted Subsidiaries outstanding on the Issue Date; 


        (4)
Interest Swap Obligations of Parent or any Restricted Subsidiary of Parent covering Indebtedness of Parent or any of its Restricted Subsidiaries;  provided, however, that such Interest Swap Obligations are entered into for the purpose of fixing or
hedging interest rates with respect to any fixed or variable rate Indebtedness that is permitted by this Indenture to be outstanding to the extent that the notional amount of any such Interest Swap
Obligation does not exceed the principal amount of Indebtedness to which such Interest Swap Obligation relates; 



        (5)
Indebtedness under Currency Agreements; provided, that in the case of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of Parent and its Restricted Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder; 


        (6)
Intercompany Indebtedness of the Company or a Guarantor for so long as such Indebtedness is held by the Company or a Guarantor;  provided, that if as of any date any Person other than the Company or a
Guarantor owns or holds any such Indebtedness or holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness not constituting Permitted Indebtedness under this clause (6) by the issuer of such Indebtedness; 



13





 




        (7)
Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within three business days of incurrence; 


        (8)
Indebtedness of Parent or any of its Restricted Subsidiaries represented by letters of credit for the account of Parent or such Restricted Subsidiary, as the case may be, in order to
provide security for workers' compensation claims, payment obligations in connection with self-insurance or similar requirements in the ordinary course of business; 


        (9)
obligations in respect of performance, bid and surety bonds and completion guarantees provided by Parent or any Restricted Subsidiary in the ordinary course of business; 



        (10)
Indebtedness represented by Capitalized Lease Obligations and Purchase Money Indebtedness of Parent and its Restricted Subsidiaries incurred in the ordinary course of business
(including Refinancings thereof that do not result in an increase in the aggregate principal amount of Indebtedness of such Person as of the date of such proposed Refinancing (plus the amount of any
premium required to be paid under the terms of the instrument governing such Indebtedness and plus the amount of reasonable expenses incurred by Parent in connection with such Refinancing)) not to
exceed $5.0 million at any time outstanding; 


        (11)
Refinancing Indebtedness; 


        (12)
Indebtedness represented by guarantees by Parent or a Restricted Subsidiary of Indebtedness incurred by Parent or a Restricted Subsidiary so long as the incurrence of such
Indebtedness by Parent or any such Restricted Subsidiary is otherwise permitted by the terms of this Indenture; 


        (13)
Indebtedness arising from agreements of Parent or a Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in
connection with the disposition of any business, assets or Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary
for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed
the gross proceeds actually received by Parent and the Subsidiary in connection with such disposition; 


        (14)
Indebtedness of Parent or any of its Restricted Subsidiaries to the extent the net proceeds thereof are promptly used to redeem the Notes in full or deposited to defease or
discharge the Notes, in each case, in accordance with this Indenture; and 


        (15)
additional Indebtedness of Parent and its Restricted Subsidiaries in an aggregate principal amount not to exceed $5.0 million at any time outstanding. 




        For
purposes of determining compliance with Section 4.12, (a) the outstanding principal amount of any item of Indebtedness shall be counted
only once and (b) in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through
(15) above or is entitled to be incurred pursuant to the Consolidated Fixed Charge Coverage Ratio provisions of such covenant, Parent shall, in its sole discretion, classify (or later
reclassify) such item of Indebtedness in any manner that complies with this covenant. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified
Capital Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of Section 4.12. 


14





 

        "Permitted
Investments" means: 



        (1)
Investments by Parent or any Restricted Subsidiary of Parent in the Company or any Person that is or will become immediately after such Investment a Guarantor or that will merge or
consolidate with or into the Company or a Guarantor, or that transfers or conveys all or substantially all of its assets to the Company or a Guarantor; 


        (2)
Investments in cash and Cash Equivalents; 


        (3)
Currency Agreements and Interest Swap Obligations entered into in the ordinary course of the Company's or its Restricted Subsidiaries' businesses and otherwise in compliance with
this Indenture; 


        (4)
Investments in the Notes; 


        (5)
Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade
creditors or customers in exchange for claims against such trade creditors or customers; 


        (6)
Investments made by the Company or its Restricted Subsidiaries as a result of consideration received in connection with an Asset Sale made in compliance with
Section 4.16; 


        (7)
Investments in existence on the Issue Date; 


        (8)
loans and advances, including advances for travel and moving expenses, to employees, officers and directors of the Company and its Restricted Subsidiaries in the ordinary course of
business for bona fide business purposes not in excess of $1.0 million at any one time outstanding; and 


        (9)
advances to suppliers and customers in the ordinary course of business. 




        "Permitted
Liens" means the following types of Liens: 



        (1)
Liens for taxes, assessments or governmental charges or claims either (a) not delinquent or (b) contested in good faith by appropriate proceedings and as to which
Parent or its Restricted Subsidiaries shall have set aside on its books such reserves as may be required pursuant to GAAP; 


        (2)
statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by law or pursuant to customary reservations or
retentions of title incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made in respect thereof; 


        (3)
Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, including any
Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith, or to secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed
money); 


        (4)
any judgment Lien not giving rise to an Event of Default; 


        (5)
easements, rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any material respect
with the ordinary conduct of the business of Parent or any of its Restricted Subsidiaries; 


        (6)
any interest or title of a lessor under any Capitalized Lease Obligation permitted pursuant to clause (9) of the definition of "Permitted Indebtedness;"  provided that such Liens do not extend to
any property or assets which is not leased property subject to such Capitalized Lease Obligation; 



15







  




        (7)
Liens securing Purchase Money Indebtedness permitted pursuant to clause (10) of the definition of "Permitted Indebtedness;"  provided, however, that
(a) the Indebtedness shall not exceed the cost of the property or assets
acquired, together, in the case of real property, with the cost of the construction thereof and improvements thereto, and shall not be secured by a Lien on any property or assets of Parent or any
Restricted Subsidiary of Parent other than such property or assets so acquired or constructed and improvements thereto and (b) the Lien securing such Indebtedness shall be created within
180 days of such acquisition or construction or, in the case of a refinancing of any Purchase Money Indebtedness, within 180 days of such refinancing; 


        (8)
Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person's obligations in respect of bankers' acceptances issued or created for the
account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; 



        (9)
Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and
proceeds thereof; 


        (10)
Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of Parent or any of its Restricted Subsidiaries,
including rights of offset and set-off; 


        (11)
Liens securing Interest Swap Obligations which Interest Swap Obligations relate to Indebtedness that is otherwise permitted under this Indenture; 



        (12)
Liens securing Indebtedness under Currency Agreements that are permitted under this Indenture and Liens securing First Priority Cash Management Obligations; 


        (13)
Liens securing Acquired Indebtedness incurred in accordance with Section 4.12; provided that: 



        (a)
such Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by Parent or a Restricted Subsidiary of Parent and were not
granted in
connection with, or in anticipation of, the incurrence of such Acquired Indebtedness by Parent or a Restricted Subsidiary of Parent; and 



        (b)
such Liens do not extend to or cover any property or assets of Parent or of any of its Restricted Subsidiaries other than the property or assets that secured the Acquired
Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of Parent or a Restricted Subsidiary of Parent and are no more favorable to the lienholders than those securing the
Acquired Indebtedness prior to the incurrence of such Acquired Indebtedness by Parent or a Restricted Subsidiary of Parent; 




        (14)
Liens existing as of the Issue Date and securing Indebtedness permitted to be outstanding under clause (3) of the definition of the term "Permitted Indebtedness" to the
extent and in the manner such Liens are in effect on the Issue Date; 


        (15)
Liens securing the Notes and all other monetary obligations under this Indenture and the Guarantees; 


        (16)
Liens securing Indebtedness under the Credit Agreement, to the extent such Indebtedness is permitted under clause (2) of the definition of the term "Permitted Indebtedness",
and other Obligations thereunder; 


        (17)
Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by a Lien permitted under this paragraph and which has been incurred
in accordance with Section 4.12; provided, however, that such Liens:
(i) are no less favorable to the Holders and are not more favorable to the lienholders with respect to such Liens than the Liens in 



16





 




respect
of the Indebtedness being Refinanced; and (ii) do not extend to or cover any property or assets of Parent or any of its Restricted Subsidiaries not securing the Indebtedness so
Refinanced; and 


        (18)
Liens securing Acquired Indebtedness or Indebtedness (and all other Obligations related thereto) of the Company or a Guarantor, the proceeds of which are used by the Company or such
Guarantor to acquire assets that will be used in a Permitted Business or the Capital Stock of a Person that becomes a Subsidiary Guarantor or is merged with or into Parent, the Company or a Subsidiary
Guarantor; provided, that immediately thereafter the ratio of: 



        (a)
the principal amount (or accreted value, as the case may be) of First Priority Claims of Parent and its Restricted Subsidiaries on a consolidated basis outstanding as of the
Transaction Date to 


        (b)
the Pro Forma Consolidated Cash Flow of Parent for the preceding two full fiscal quarters multiplied by two, determined on a pro forma basis as if any such Indebtedness had been
Incurred and the proceeds thereof had been applied at the beginning of such two fiscal quarters, 





would
be greater than zero and less than 2.75 to 1.0. 


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


        "Physical
Notes" has the meaning set forth in Section 2.14(b). 


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


        "Premises"
has the meaning set forth in Section 4.23. 


        "principal"
of any Indebtedness (including the Notes) means the principal amount (or accreted value, as the case may be) of such Indebtedness plus the
premium, if any, on such Indebtedness. 


        "Private
Placement Legend" means the legend initially set forth on the Notes in the form set forth in Exhibit C. 


        "Pro
Forma Consolidated Cash Flow" means, with respect to any Person, for any period, the Consolidated Cash Flow of such Person for such period calculated on
a pro forma basis to give effect to any Asset Sale or other disposition or Asset Acquisition (including acquisitions of other Persons by merger, consolidation or purchase of Capital Stock) by such
Person during such period as if such Asset Sale or other disposition or Asset Acquisition had taken place on the first day of such period. For purposes of this definition, whenever pro
forma effect is to be given to an Asset Acquisition and the amount of income or earnings relating thereto, the pro forma calculations shall be determined in
good faith by a responsible financial or accounting Officer of the Company. Any such pro forma calculations may include operating expense reductions (net of associated
expenses) for such period resulting from the Asset Acquisition or other Investment which is being given pro forma effect that (a) would be permitted to be reflected
on pro forma financial statements pursuant to Rule 11-02 of Regulation S-X under the Securities Act or (b) have been realized or for which substantially
all the steps necessary for realization have been taken or, at the time of determination, are reasonably expected to be taken with 180 days immediately following any such Asset Acquisition or
other Investment, including, but not limited to, the execution, termination, renegotiation or modification of any contracts, the termination of any personnel or the closing of any facility, as
applicable, provided that, in any case, such adjustments shall be calculated on an annualized basis and such adjustments are set forth in an Officer's
Certificate signed by Parent's chief financial officer and another Officer which states in detail (i) the amount of 


17





 



such
adjustment or adjustments, (ii) that such adjustment or adjustments are based on the reasonable good faith beliefs of the Officers executing such Officers' Certificate at the time of such
execution and (iii) that such adjustment or adjustments and the plan or plans related thereto have been reviewed and approved by the Parent's Board of Directors. 


        "Public
Equity Offering" means an underwritten public offering of Common Stock of Parent or any holding company of Parent pursuant to a registration
statement filed with the SEC (other than on Form S-8). 


        "PUC"
means the public utilities commission for any state or any other jurisdiction or any successor agency, and any successor, in whole or in part, to its
functions or jurisdictions. 


        "Purchase
Money Indebtedness" means Indebtedness of Parent and its Restricted Subsidiaries incurred for the purpose of financing all or any part of the
purchase price, or the cost of installation, construction or improvement, of property or equipment, provided, that the aggregate principal amount of
such Indebtedness does not exceed the lesser of the Fair Market Value of such property or such purchase price or cost. 


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


        "Qualified
Capital Stock" means any Capital Stock that is not Disqualified Capital Stock. 


        "Record
Date" means any of the Record Dates specified in the Notes, whether or not a Legal Holiday. 



        "Redemption
Date" means, when used with respect to any Note to be redeemed, the date fixed for redemption of such Note pursuant to this Indenture and the
Notes. 


        "Redemption
Price" means, when used with respect to any Note to be redeemed, the price fixed for redemption pursuant to this Indenture and the Notes. 


        "Refinance"
means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a
security or Indebtedness in exchange or replacement for, such security or Indebtedness in whole or in part. "Refinanced" and "Refinancing" shall have correlative meanings. 



        "Refinancing
Indebtedness" means any Refinancing by Parent or any Restricted Subsidiary of Parent of Indebtedness incurred in accordance with
Section 4.12 (other than pursuant to Permitted Indebtedness) or clauses (1), (3) or (10) of the definition of Permitted Indebtedness, in each case
that does not: 



        (1)
have an aggregate principal amount (or, if such Indebtedness is issued with original issue discount, an aggregate offering price) greater than the sum of (x) the aggregate
principal amount of the Indebtedness being Refinanced (or, if such Indebtedness being Refinanced is issued with original issue discount, the aggregate accreted value) as of the date of such proposed
Refinancing plus (y) the amount of fees, expenses, premium, defeasance costs and accrued but unpaid interest relating to the Refinancing of such Indebtedness being Refinanced; 


        (2)
create Indebtedness with: (a) a Weighted Average Life to Maturity that is less than the Weighted Average Life to Maturity of the Indebtedness being Refinanced; or (b) a
final maturity earlier than the final maturity of the Indebtedness being Refinanced; or 


        (3)
affect the security, if any, for such Refinancing Indebtedness (except to the extent that less security is granted to holders of such Refinancing Indebtedness); 




If
such Indebtedness being Refinanced is subordinate or junior by its terms to the Notes, then such Refinancing Indebtedness shall be subordinate by its terms to the Notes at least to the same extent
and in the same manner as the Indebtedness being Refinanced. 


18





 

        "Registrar"
has the meaning set forth in Section 2.03. 


        "Registration
Rights Agreement" means the Registration Rights Agreement, dated as of the Issue Date, between the Company, the Guarantors and the Initial
Purchasers, as the same may be amended or modified from time to time in accordance with the terms thereof. 


        "Regulation S"
means Regulation S under the Securities Act. 


        "Regulation S
Temporary Global Note" has the meaning set forth in Section 2.01. 


        "Regulation S
Permanent Global Note" has the meaning set forth in Section 2.01. 



        "Released
Interests" has the meaning set forth in Section 12.05(a). 


        "Replacement
Assets" has the meaning set forth in Section 4.16(3)(b). 


        "Restricted
Payment" has the meaning set forth in Section 4.10. 


        "Restricted
Period" means the 40-day distribution compliance period as defined in Regulation S. 


        "Restricted
Security" has the meaning assigned to such term in Rule 144(a)(3) under the Securities Act;  provided that the Trustee shall be entitled to request and conclusively rely on an Opinion of Counsel
with respect to whether any Note constitutes a
Restricted Security. 


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


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


        "Securities
Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder. 



        "Security
Agreement" means the Security Agreement, dated as of the Issue Date, made by the Company and the Guarantors in favor of the Collateral Agent, as
amended or supplemented from time to time in accordance with its terms. 


        "Significant
Subsidiary" with respect to any Person, means any Restricted Subsidiary of such Person that satisfies the criteria for a "significant
subsidiary" set forth in Rule 1-02(w) of Regulation S-X under the Exchange Act. 


        "Subsidiary"
with respect to any Person, means: 



        (1)
any corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at
the time be owned, directly or indirectly, by such Person; or 


        (2)
any other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person. 




        "Subsidiary
Guarantor" means (1) each of Parent's Domestic Restricted Subsidiaries (other than the Company) existing on the Issue Date and
(2) each of Parent's Domestic Restricted Subsidiaries that in the future executes a supplemental indenture in which such Domestic Restricted Subsidiary agrees to be bound by the terms of this
Indenture as a Subsidiary Guarantor; provided that any Person constituting a Subsidiary Guarantor as described above shall cease to constitute a
Subsidiary Guarantor when its respective Guarantee is released in accordance with the terms of this Indenture. 


        "TIA"
means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb), as amended, as in effect on the date of this
Indenture, except as otherwise set forth in Section 9.03. 


19





 



        "Transaction
Date" means with respect to the incurrence of any Indebtedness by Parent or any of its Restricted Subsidiaries that is a Guarantor, the date
such Indebtedness is to be incurred and, with respect to any Restricted Payment, the date such Restricted Payment is to be made. 


        "Trust
Officer" means any officer of the Trustee assigned by the Trustee to administer this Indenture or, in the case of a successor trustee, an officer
assigned to the department, division or group performing the corporation trust work of such successor and assigned to administer this Indenture. 


        "Trustee"
means the party named as such in this Indenture until a successor replaces it in accordance with the provisions of this Indenture and thereafter
means such successor. 


        "Unit
Securities" has the meaning set forth in Section 4.21. 


        "Unrestricted
Subsidiary" of any Person means: 



        (1)
any Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board of Directors of such Person in the
manner provided below; and 


        (2)
any Subsidiary of an Unrestricted Subsidiary. 




        The
Board of Directors of Parent may designate any Subsidiary (including any newly acquired or newly formed Subsidiary) other than the Company to be an Unrestricted Subsidiary unless
such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, Parent or any other Subsidiary of Parent that is not a Subsidiary of the Subsidiary to be so designated,  provided
that: 



        (1)
Parent certifies to the Trustee that such designation complies Section 4.10; and 


        (2)
each Subsidiary to be so designated and each of its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of Parent or any of its Restricted Subsidiaries. 




        The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if: 



        (1)
immediately after giving effect to such designation, Parent is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12; and 


        (2)
immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing. 




        Any
such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the foregoing provisions. 


        "U.S.
Government Obligations" means non-callable direct obligations of, and non-callable obligations guaranteed by, the United States
of America for the payment of which the full faith and credit of the United States of America is pledged. 



        "U.S.
Legal Tender" means such coin or currency of the United States which, as at the time of payment, shall be immediately available legal tender for the
payment of public and private debts. 


        "Released
Interests" has the meaning set forth in Section 12.05(b). 


        "Voting
Stock" means, with respect to any Person, securities of any class or classes of Capital Stock of such Person entitling the holders thereof (whether
at all times or only so long as no senior 


20





 



class
of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors (or equivalent governing body) of such Person. 


        "Weighted
Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing (1) the then
outstanding aggregate principal amount of such Indebtedness into (2) the sum of the total of the products obtained by multiplying: 



        (a)
the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect thereof, by 



        (b)
the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment. 




        "Wholly-Owned
Subsidiary" of any Person means any Restricted Subsidiary of such Person of which all the outstanding Capital Stock (other than in the case of
a Foreign Subsidiary, directors' qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) are owned by such Person or any Wholly-Owned
Subsidiary of such Person. 


        SECTION
1.02. Incorporation by Reference of Trust Indenture Act. 


        Whenever
this Indenture refers to a provision of the TIA, such provision is incorporated by reference in, and made a part of, this Indenture. The following TIA terms used in this
Indenture have the following meanings: 


        "indenture
securities" means the Notes. 


        "indenture
security holder" means a Holder. 


        "indenture
to be qualified" means this Indenture. 



        "indenture
trustee" or "institutional trustee" means the Trustee. 


        "obligor"
on the indenture securities means the Company or any other obligor on the Notes. 


        All
other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule and not otherwise defined herein have
the meanings assigned to them therein. 


        SECTION
1.03. Rules of Construction. 


        Unless
the context otherwise requires: 



        (1)
a term has the meaning assigned to it; 


        (2)
an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; 


        (3)
"or" is not exclusive; 


        (4)
words in the singular include the plural, and words in the plural include the singular; 



        (5)
"herein," "hereof" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; 


        (6)
when the words "includes" or "including" are used herein, they shall be deemed to be followed by the words "without limitation"; and 


        (7)
all references to Sections or Articles refer to Sections or Articles of this Indenture unless otherwise indicated. 



21





 




 
 

ARTICLE TWO    
    
    THE NOTES    
    


        SECTION 2.01. Form and Dating. 


        The
Initial Notes and the Additional Notes and the Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit A
hereto. The Exchange Notes and the Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit B hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or Depository rule or usage. The Company shall approve the form of the Notes and any notation, legend or endorsement on them.
Each Note shall be dated the date of its authentication. 


        The
terms and provisions contained in the forms of the Notes annexed hereto as Exhibit A and Exhibit B, shall
constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. 


        Notes
offered and sold in reliance on Rule 144A shall be issued initially in the form of one or more permanent Global Notes in registered form, substantially in the form set forth
in Exhibit A hereto ("Global Notes"), deposited with the Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided and shall bear the legend set forth in Exhibit C. 


        Notes
offered and sold to Institutional Accredited Investors in reliance on Rule 501(a)(1), (2), (3) or (7) under the Securities Act shall be issued initially in the
form of one or more permanent Global Notes deposited with the Trustee, as custodian for the Depository, duly executed by the Company and authenticated by the Trustee as hereinafter provided and shall
bear the legend set forth in Exhibit C. 


        Notes
offered and sold in offshore transactions in reliance on Regulation S shall be issued initially in the form of one or more temporary Global Notes (a
"Regulation S Temporary Global Note") deposited with the Trustee, as custodian for the Depository, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and authenticated by the Trustee as hereinafter provided and shall bear
the legend set forth in Exhibit C. 


        Following
the termination of the Restricted Period, beneficial interests in a Regulation S Temporary Global Note will be exchanged for beneficial interests in a
Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of a Regulation S Permanent Global Note, the Trustee will cancel the
related Regulation S Temporary Global Note. 


        The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream Banking"
and "Customer Handbook" of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and the Regulation S Permanent Global Note that
are held by participants through Euroclear or Clearsteam. 


        The
aggregate principal amount of any Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided. 


        The
definitive Notes shall be typed, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of
any securities exchange on which the Notes may be listed, all as determined by the Officers executing such Notes, as evidenced by their execution of such Notes. 


22





 



        SECTION
2.02. Execution and Authentication; Aggregate Principal Amount. 


        An
Officer (who shall have been duly authorized by all requisite corporate actions) shall sign the Notes for the Company by manual or facsimile signature. 


        If
an Officer whose signature is on a Note was an Officer at the time of such execution but no longer holds that office or position at the time the Trustee authenticates the Note, the
Note shall nevertheless be valid. 


        A
Note shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence, and the
only evidence, that the Note has been authenticated under this Indenture. 


        The
Trustee shall authenticate (i) Initial Notes for original issue in the aggregate principal amount at maturity not to exceed $100,000,000 (ii) Exchange Notes from time
to time for issue only pursuant to the Registration Rights Agreement in exchange for a like principal amount at maturity of Initial Notes or Additional Notes, and (iii) subject to compliance
with Section 4.12, one or more series of Additional Notes for original issue after the Issue Date, in each case upon written orders of the Company in the form of an
Officers' Certificate, which Officers' Certificate shall, in the case of any issuance of Additional Notes, certify that such issuance is in compliance with
Section 4.12. In addition, each Officers' Certificate shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated,
whether the Notes are to be Initial Notes, Exchange Notes or Additional Notes. All Notes issued under this Indenture shall vote and consent together on all matters as one class and no series of Notes
shall have the right to vote or consent as a separate class on any matter. 


        The
Trustee may appoint an authenticating agent (the "Authenticating Agent") reasonably acceptable to the Company to authenticate Notes. Unless otherwise
provided in the appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by
such Authenticating Agent. An Authenticating Agent has the same rights as an Agent to deal with the Company and Affiliates of the Company. 


        The
Notes shall be issuable in fully registered form only, without coupons, in denominations of $1,000 in principal amount at maturity and any integral multiple thereof. 


        SECTION
2.03. Registrar and Paying Agent. 


        The
Company shall maintain an office or agency which shall initially be the office of the Trustee in the Borough of Manhattan, The City of New York, where (a) Notes may be
presented or surrendered for registration of transfer or for exchange (the "Registrar"), (b) Notes may be presented or surrendered for payment (the
"Paying Agent") and (c) notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company, upon prior written notice to the Trustee, may have one or more co-Registrars and one or more additional Paying Agents reasonably
acceptable to the Trustee. The term "Paying Agent" includes any additional Paying Agent. Neither the Company nor any Affiliate of the Company may act as Paying Agent. 


        The
Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture, which agreement shall incorporate the provisions of the TIA and implement the
provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee in writing, in advance, of the name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as such, as shall be entitled to appropriate compensation therefore, pursuant to
Section 7.07. 


23





 



        The
Company initially appoints the Trustee as Registrar, Paying Agent and agent for service of demands and notices in connection with the Notes. The Paying Agent or Registrar may resign
upon thirty (30) days' written notice to the Company. 


        The
Company appoints The Depositary Trust Company as Depositary. 


        SECTION
2.04. Obligations of Paying Agent. 


        The
Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold separate and apart from, and not commingle with any other
properties, for the benefit of the Holders or the Trustee, all assets held by the Paying Agent for the payment of principal of, or interest on, the Notes (whether such assets have been distributed to
it by the Company or any other obligor on the Notes), and the Paying Agent shall promptly notify the Trustee in writing of any Default by the Company (or any other obligor on the Notes) in making any
such payment. The Company at any time may require a Paying Agent to distribute all assets held by it to the Trustee and account for any assets disbursed and the Trustee may at any time during the
continuance of any payment Default, upon written request to a Paying Agent, require such Paying Agent to distribute all assets held by it to the Trustee and to account for any assets distributed. Upon
receipt by the Trustee of all assets that shall have been delivered by the Company to the Paying Agent, the Paying Agent shall have no further liability for such assets. 


        SECTION
2.05. Holder Lists. 


        The
Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of the Holders and shall otherwise comply
with TIA Section 312(b). If the Trustee is not the Registrar, the Company shall furnish or cause the Registrar to furnish to the Trustee before each Record Date and at such other times as the
Trustee may request in writing a list as of such date and in such form as the Trustee may reasonably request of the names and addresses of the Holders, which list may be conclusively relied upon by
the Trustee. 



        SECTION
2.06. Transfer and Exchange. 


        Subject
to the provisions of Sections 2.14 and 2.15, when Notes are presented to the Registrar or a co-Registrar
with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or co-Registrar
shall register the transfer or make the exchange as requested; provided, however, that the Notes
presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing and such other documents as the Registrar or Co-Registrar may reasonably require.
To permit registrations of transfers and exchanges, the Company shall issue and the Trustee shall authenticate Notes at the Registrar's or co-Registrar's request. No service charge shall
be made for any registration of transfer or exchange, but the Company or the Trustee may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchanges or transfers pursuant to Section 2.10,
3.07, 4.15, 4.16 or 9.05, in which event the Company shall be responsible for the
payment of such taxes). 


        The
Registrar or co-Registrar shall not be required to register the transfer or exchange of any Note (i) during a period beginning at the opening of business fifteen
(15) days before the mailing of a notice of redemption of Notes and ending at the close of business on the day of such mailing and (ii) selected for redemption in whole or in part
pursuant to Article Three, except the unredeemed portion of any Note being redeemed in part. 


24







  





        Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such Global Note may be effected only through the Depository, in
accordance with this Indenture and the Applicable Procedures. 


        SECTION
2.07. Replacement Notes. 


        If
a mutilated Note is surrendered to the Trustee or if the Holder of a Note claims in writing that the Note has been lost, destroyed or wrongfully taken, then, in the absence of written
notice to the Company or the Trustee that such Note has been acquired by a protected purchaser, the Company shall issue and the Trustee shall authenticate a replacement Note of like tenor and
principal amount and bearing a number not contemporaneously outstanding if the Trustee's requirements are met. Except with respect to mutilated Notes, if required by the Trustee or the Company, such
Holder must provide an affidavit of lost certificate and an indemnity bond or other indemnity, sufficient in the judgment of both the Company and the Trustee, to protect the Company, the Trustee or
any Agent from any loss which any of them may suffer if a Note is replaced. The Company may charge such Holder for its reasonable out-of-pocket expenses in replacing a Note,
including reasonable fees and expenses of its counsel and of the Trustee and its counsel. In case any mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and
payable, the Company in its discretion may pay such Note instead of issuing a new Note in replacement thereof. Every replacement Note shall constitute an additional obligation of the Company, entitled
to the benefits of this Indenture, subject to Section 2.08. 


        SECTION
2.08. Outstanding Notes. 


        Notes
outstanding at any time are all the Notes that have been authenticated by the Trustee except those cancelled by it, those delivered to it for cancellation and those described in
this Section 2.08 as not outstanding. Subject to the provisions of Section 2.09, a Note does not cease to be outstanding because
the Company or any of its Affiliates holds the Note. 


        If
a Note is replaced pursuant to Section 2.07 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement thereof
pursuant to Section 2.07. 


        If
on a Redemption Date or the Maturity Date the Paying Agent holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the principal and interest due on the Notes
payable on that date and is not prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture, then on and after that date such Notes cease to be outstanding and
interest on them ceases to accrue. 


        SECTION
2.09. Treasury Notes; When Notes Are Disregarded. 


        In
determining whether the Holders of the required principal amount at maturity of Notes have concurred in any direction, waiver, consent or notice, Notes owned by the Company or any of
its Affiliates shall be considered as though they are not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes which the Trustee actually knows are so owned shall be so considered. Notes so owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to such Notes and that the pledgee is not the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor. 


        SECTION
2.10. Temporary Notes. 


        Until
definitive Notes are ready for delivery, the Company may prepare and execute and the Trustee shall authenticate temporary Notes upon receipt of a written order of the Company in
the form of an Officers' Certificate. The Officers' Certificate shall specify the amount of temporary Notes to be authenticated and the date on which the temporary Notes are to be authenticated.
Temporary Notes 


25





 



shall
be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate upon receipt of a written order of the Company pursuant to Section 2.02 definitive Notes in exchange for temporary Notes. Until so
exchanged, the temporary Notes shall be entitled to the same benefits under this Indenture as definitive Notes. 


        SECTION
2.11. Cancellation. 


        The
Company at any time may deliver Notes previously authenticated hereunder which the Company has acquired in any lawful manner, to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent, and no
one else, shall cancel all Notes surrendered for transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Notes to replace Notes that it has paid or delivered to the Trustee for cancellation. If the Company shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this
Section 2.11. The Trustee shall dispose of all cancelled Notes in accordance with the Trustee's customary procedures. 


        SECTION
2.12. CUSIP Numbers. 


        A
"CUSIP" number shall be printed on the Notes, and the Trustee shall use the CUSIP number in notices of redemption, purchase or exchange as a convenience to
Holders; provided that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP number printed in the
notice or on the Notes and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee of any change in the CUSIP number. 


        SECTION
2.13. Deposit of Moneys. 


        Prior
to 10:00 a.m. New York City time on each Interest Payment Date and the Maturity Date, the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to make
cash payments, if any, due on such Interest Payment Date or the Maturity Date, as the case may be. 


        SECTION
2.14. Book-Entry Provisions for Global Notes. 


        (a)
The Global Notes initially shall (i) be registered in the name of the Depository or the nominee of such Depository, (ii) be delivered to the Trustee as custodian for
such Depository and (iii) bear legends as set forth in Exhibit C. 


        Members
of, or participants in, the Depository ("Agent Members") shall have no rights under this Indenture with respect to any Global Note held on their
behalf by the Depository, or the Trustee as its custodian, or under any Global Note, and the Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note. 


        (b)
Transfers of the Global Notes shall be limited to transfers in whole, but not in part, to the Depository, its successors or their respective nominees. Interests of beneficial owners
in the Global Notes may be transferred or exchanged in accordance with the Applicable Procedures of the Depository and the provisions of Section 2.15,  provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial
interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). In addition, Notes in the
form of certificated Notes in registered form in substantially the 


26





 



form
set forth in Exhibit A hereto (the "Physical Notes") shall be transferred to all beneficial owners in exchange for their
beneficial interests in the Global Notes if (i) the Depository notifies the Company that it is unwilling or unable to continue as Depository for the Global Notes and a successor Depository is
not appointed by the Company within ninety (90) days of such notice or (ii) an Event of Default has occurred and is continuing and the Registrar has received a request from the
Depository to issue Physical Notes; provided that a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a
Physical Note or transferred to a Person who takes delivery thereof in the form of a Physical Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 903 or Rule 904.. 


        (c)
Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in another Global Note shall, upon transfer, cease to
be an interest in such first Global Note and become a beneficial interest in such other Global Note and, accordingly, shall thereafter be subject to all transfer restrictions, if any, and other
procedures applicable to a beneficial interest in such other Global Notes for as long as it remains such an interest. 


        (d)
In connection with any transfer or exchange of a portion of the beneficial interest in the Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be issued) reflect on its books and records the date and a decrease in the principal amount
of the Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and
deliver, one or more Physical Notes of like tenor and aggregate principal amount. 


        (e)
In connection with the transfer of an entire Global Note to beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Global Notes, an equal aggregate principal amount of Physical Notes of authorized denominations. 



        (f)
Any Physical Note constituting a Restricted Security delivered in exchange for an interest in the Global Note pursuant to paragraph (b), except as
otherwise provided by paragraphs (a)(i)(x) and (c) of
Section 2.15, bear the legend regarding transfer restrictions applicable to the Physical Notes set forth in Exhibit A. 


        (g)
The Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the Notes. 


        SECTION
2.15. Special Transfer Provisions. 


        (a)
Transfers to Non-QIB Institutional Accredited Investors and Non-U.S. Persons. The following provisions shall apply with respect
to the registration of any proposed transfer of a Note constituting a Restricted Security to any Institutional Accredited Investor which is not a QIB or to any Non-U.S. Person: 



        (i)
the Registrar shall register the transfer of any Note constituting a Restricted Security, whether or not such Note bears the Private Placement Legend, if (x) the requested
transfer is after March 17, 2006 or (y) (1) in the case of a transfer to an Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate substantially in the form of Exhibit D hereto or (2) in the case of a transfer to a
Non-U.S. Person, the proposed transferor has delivered to the Registrar a certificate substantially in the form of Exhibit E hereto; and 



27





 

        (ii)
if the proposed transferor is an Agent Member holding a beneficial interest in the Global Note, upon receipt by the Registrar of (x) the certificate, if any, required by
paragraph (i) above and (y) instructions given in accordance with the Applicable Procedures and the Registrar's procedures, 




whereupon
(1) the Registrar shall reflect on its books and records the date and (if the transfer does not involve a transfer of outstanding Physical Notes) a decrease in the principal amount of
the Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and (2) the Company shall execute and the Trustee shall authenticate
and deliver one or more Physical Notes of like tenor and principal amount. 



        (b)
Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of a Note constituting a Restricted
Security to a QIB (excluding transfers to Non-U.S. Persons): 



        (i)
the Registrar shall register the transfer if such transfer is being made by a proposed transferor who has checked the box provided for on the form of Note stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on the
form of Note stating, or has otherwise advised the Company and the Registrar in writing, that it is purchasing the Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as it has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor
is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A; and 


        (ii)
if the proposed transferee is an Agent Member, and the Notes to be transferred consist of Physical Notes which after transfer are to be evidenced by an interest in the Global Note,
upon receipt by the Registrar of instructions given in accordance with the Applicable Procedures and the Registrar's procedures, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Note in an amount equal to the principal amount of the Physical Notes to be transferred, and the Trustee shall cancel the Physical Notes so transferred. 




        (c)
Private Placement Legend. Upon the transfer, exchange or replacement of Notes not bearing the Private Placement Legend, the Registrar shall deliver Notes
that do not bear the Private Placement Legend. Upon the transfer, exchange or replacement of Notes bearing the Private Placement Legend, the Registrar shall deliver only Notes that bear the Private
Placement Legend unless (i) the circumstance contemplated by paragraph (a)(i)(x) of this Section 2.15 exists or
(ii) there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the Securities Act. The Registrar shall not register a transfer of any Note unless such transfer complies with the
restrictions on transfer of such Note set forth in this Indenture. In connection with any transfer of Notes, each Holder agrees by its acceptance of the Notes to furnish the Registrar or the Company
such certifications, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided that the Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any such certifications, legal opinions or other information. 


        (d)
General. By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such
Note set forth in this Indenture and in 


28





 



the
Private Placement Legend and agrees that it shall transfer such Note only as provided in this Indenture. 


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


        The
Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.14 or this
Section 2.15. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar. 


 
 

ARTICLE THREE
  
    REDEMPTION    
    


        SECTION 3.01. Optional Redemption. 


        (a)
The Company may, at its option, redeem the Notes, in whole or in part, at specified times and under specified conditions, as set forth in this
Section 3.01. If the Company elects to redeem Notes pursuant to this Section 3.01, it shall, prior to mailing the notice of
redemption referred to in Section 3.03 and at least 45 days prior to the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee)
furnish to the Trustee and Paying Agent an Officers Certificate setting forth the Redemption Date and the principal amount at maturity of the Notes to be redeemed, the clause of this Indenture
pursuant to which the redemption shall occur and the Redemption Price. 


        (b)
Optional Redemption Upon a Change of Control. At any time on or prior to March 15, 2007, if a Change of Control occurs the Company may, at its
option, redeem all, but not less than all, of the Notes at a Redemption Price equal to the sum of 112.000% of the Accreted Value of the Notes as of the Redemption Date, and accrued and unpaid interest
and Additional Interest thereon, if any, to the
Redemption Date (the "Change of Control Redemption Right"). If the Company elects to exercise the Change of Control Redemption Right, it must mail a notice to each Holder
with a copy to the Trustee within 30 days following the Change of Control (or, at its option, prior to such Change of Control but after the transaction giving rise to such Change of Control is
publicly announced). Any such redemption may be conditioned upon the Change of Control occurring if the notice is mailed prior to the Change of Control. If the Company exercises the Change of Control
Redemption Right, it may not make a Change of Control Offer. If the Company makes a Change of Control Offer, it may not exercise the Change of Control Redemption Right. 


        (c)
Optional Redemption After March 15, 2007. The Company may redeem the Notes, at its option, in whole or in part at any time on or after
March 15, 2007, upon not less than 30 nor more than 60 days' notice, at the following redemption prices (expressed as percentages of the Accreted Value thereof) if redeemed during the
twelve-month period commencing on March 15, of the year set forth below: 



	Year
 
	 	Percentage
	 
	2007	 	106.000	%
	2008	 	103.000	%
	2009 and thereafter	 	100.000	%





29





 

        In
addition, the Company must pay accrued and unpaid interest and Additional Interest, if any, on the aggregate principal amount at maturity of the Notes redeemed. 


        (d)
Optional Redemption Upon Equity Offerings. At any time, or from time to time, on or prior to March 15, 2007, the Company may, at its option, use
an amount not to exceed the net cash proceeds of
one or more Equity Offerings to redeem up to 35% of the aggregate principal amount at maturity of the Notes (including Additional Notes, if any) originally issued under this Indenture at a redemption
price of 112.000% of the Accreted Value amount thereof, plus accrued and unpaid interest and Additional Interest thereon, if any, to the Redemption Date;  provided that: 



        (1)
at least 65% of the original principal amount at maturity of Notes (including Additional Notes, if any) issued under this Indenture remains outstanding immediately after any such
redemption; and 


        (2)
the Company makes such redemption not more than 120 days after the consummation of any such Equity Offering. 




        SECTION
3.02. Mandatory Redemption. 


        On
September 15, 2009, if any Notes are outstanding, the Company shall redeem 3.5% of each Note (provided that if such redemption
results in any unredeemed portion of a Note having a principal amount that is not a round multiple of $1,000, the Company shall redeem an additional portion of such Note as to reduce the principal
amount to a round multiple of $1,000) then outstanding (the "Mandatory Principal Redemption Amount") at a Redemption Price of 100% of the Accreted Value of the portion of
the Notes so redeemed; provided, that the Company shall simultaneously be required to redeem an additional portion of each Note to the extent required
to prevent such Note from being treated as an "Applicable High Yield Discount Obligation" within the meaning of Section 163(i)(1) of the Internal Revenue Code of 1986, as amended. 


        SECTION
3.03. Selection of Notes to Be Redeemed. 


        If
fewer than all of the Notes are to be redeemed pursuant to the provisions of this Indenture, the Trustee shall select the Notes to be redeemed (1) in compliance with the
requirements of the principal national securities exchange, if any, on which such Notes are listed or (2) if such Notes are not then listed on a national securities exchange, on a
pro rata basis, by lot or by such method as the Trustee may reasonably determine is fair and appropriate, provided, that if
any such partial redemption is made with the proceeds of an Equity Offering or pursuant to Section 3.02, the Trustee will select the Notes only on a
pro rata basis or on as nearly a pro rata basis as is practicable (subject to DTC procedures), unless such method is otherwise prohibited. The
Trustee shall make the selection from the Notes outstanding and not previously called for redemption and shall promptly notify the Company in writing of the Notes selected for redemption and, in the
case of any Note selected for partial redemption, the principal amount at maturity thereof, to be redeemed. 



        Notes
of a principal amount at maturity in denominations of $1,000 may be redeemed only in whole. The Trustee may select for redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal amount at maturity of Notes that have denominations larger than $1,000 at maturity.
Provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. 


        SECTION
3.04. Notice of Redemption. 


        At
least thirty (30) days but not more than sixty (60) days before a Redemption Date, the Company shall mail or cause to be mailed a notice of redemption by first class
mail, postage prepaid, to each Holder whose Notes are to be redeemed at its registered address, with a copy to the Trustee and any Paying Agent. At the Company's written request delivered at least
fifteen days prior to the date such notice is to be given (unless a shorter period shall be acceptable to the Trustee), the Trustee shall give the notice of redemption in the Company's name and at the
Company's expense, provided 


30





 



the
Company provides the Trustee with all information required for such notice of redemption. Failure to give Notice of redemption, or any defect therein to any Holder of any Note selected for
redemption shall not impair or affect the validity of the redemption of any other Note. 


        Each
notice of redemption shall identify the Notes to be redeemed and shall state: 



        (1)
the Redemption Date; 


        (2)
the Redemption Price and the amount of accrued interest, if any, to be paid; 


        (3)
the name and address of the Paying Agent; 



        (4)
the CUSIP number; 


        (5)
the subparagraph of the Notes pursuant to which such redemption is being made; 


        (6)
the place where such Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued interest, if any (and Additional Interest, if
any); 


        (7)
that, unless the Company fails to deposit with the Paying Agent funds in satisfaction of the applicable Redemption Price plus accrued interest, if any, the Notes cease to accrete in
value and interest (and Additional Interest, if any) on Notes called for redemption ceases to accrue on and after the Redemption Date in accordance with
Section 3.06, and the only remaining right of the Holders of such Notes is to receive payment of the Redemption Price plus accrued interest (and Additional
Interest, if any), if any, upon surrender to the Paying Agent of the Notes redeemed; 


        (8)
if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date, and upon surrender of such Note, a new
Note or Notes in the aggregate principal amount at maturity equal to the unredeemed portion thereof shall be issued; and 



        (9)
if fewer than all the Notes are to be redeemed, the identification of the particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount at maturity
of Notes to be redeemed and the aggregate principal amount at maturity of Notes to be outstanding after such partial redemption. 




        If
any of the Notes to be redeemed is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depository
applicable to redemption. 



        SECTION
3.05. Effect of Notice of Redemption. 


        Once
notice of redemption is mailed in accordance with Section 3.04, subject to conditions precedent in
Section 3.01(b) with respect to a Change of Control Redemption Right, Notes or portions thereof called for redemption shall become irrevocably due and payable on
the Redemption Date and at the Redemption Price plus accrued interest and Additional Interest, if any, thereon. Upon surrender to the Trustee or Paying Agent, such Notes or portions thereof called for
redemption shall be paid at the Redemption Price plus accrued interest and Additional Interest, if any, thereon, to the Redemption Date, but installments of interest and Additional Interest thereon,
if any, the maturity of which is on or prior to the Redemption Date, shall be payable to Holders of record at the close of business on the relevant Record Dates referred to in the Notes. 


        SECTION
3.06. Deposit of Redemption Price. 


        Not
later than 10:00 a.m. local time in the place of payment on the Redemption Date, the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
Redemption Price plus accrued interest, if any, of all Notes or portions thereof to be redeemed on that date. 


31





 



        The
Paying Agent shall promptly return to the Company any U.S. Legal Tender so deposited which is not required for that purpose, except with respect to monies owed as obligations to the
Trustee pursuant to Article Seven. 


        If
the Company complies with the preceding paragraph, then, unless the Company defaults in the payment of such Redemption Price plus accrued interest, if any, interest on the Notes to be
redeemed shall cease to accrue and the Notes shall cease to accrete in value on and after the applicable Redemption Date, whether or not such Notes are presented for payment. 


        SECTION
3.07. Notes Redeemed in Part. 


        Upon
surrender of a Note that is to be redeemed in part, the Company shall issue and the Trustee shall authenticate for the Holder at the expense of the Company a new Note or Notes equal
in principal amount at maturity to the unredeemed portion of the Note surrendered. 


 
 

ARTICLE FOUR
  
    COVENANTS    
    


        SECTION 4.01. Payment of Notes. 


        The
Company shall pay the principal of, or premium, if any, or interest, if any, on the Notes on the dates and in the manner provided in the Notes and in this Indenture. An installment
of principal of, or premium, if any, or interest, if any, on the Notes shall be considered paid on the date it is due if the Trustee or Paying Agent (other than the Company or an Affiliate of the
Company) holds at 10:00 a.m. (New York time) on that date U.S. Legal Tender designated for and sufficient to pay the installment in full and is not prohibited from paying such money to the
Holders pursuant to the terms of this Indenture. The Company shall pay interest on overdue principal at 1% per annum in excess of the rate per annum set forth in the Notes, and it shall pay interest
on overdue installments of interest at the same rate to the extent lawful. 



        Notwithstanding
anything to the contrary contained in this Indenture, the Company may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes
imposed by the United States from principal or interest payments hereunder. 


        SECTION
4.02. Maintenance of Office or Agency. 


        The
Company shall maintain the office or agency required under Section 2.03. The Company shall give prior written notice to the Trustee and the
Holders 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 and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands. 


        SECTION
4.03. Corporate Existence. 


        Except
as otherwise permitted by Article Five, the Company shall do or cause to be done, at its own cost and expense, all things necessary to preserve and
keep in full force and effect its corporate existence and the corporate existence of each of its Restricted Subsidiaries in accordance with the respective organizational documents of each such
Restricted Subsidiary and the material rights (charter and statutory) and franchises of the Company and each such Restricted Subsidiary; provided,  however,
that the Company shall not be required to preserve, with respect to itself, any material right or franchise and, with respect to any of its
Restricted Subsidiaries, any such existence, material right or franchise, if the Board of Directors of the Company, shall determine in good faith that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole. 


32







   
        SECTION 4.04. Payment of Taxes and Other Claims. 


        The
Company shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all material taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to taxes) levied or imposed upon it or any of its Restricted Subsidiaries or its properties or any of its Restricted
Subsidiaries' properties and (ii) all material lawful claims for labor, materials and supplies that, if unpaid, might by law become a Lien upon its properties or any of its Restricted
Subsidiaries' properties; provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being or shall be contested in good faith by appropriate proceedings properly
instituted and diligently conducted for which adequate reserves, to the extent required under GAAP, have been taken. 


        SECTION
4.05. Maintenance of Properties and Insurance. 


        (a)
The Company shall, and shall cause each of its Restricted Subsidiaries to, maintain its properties in good working order and condition in all material respects (subject to ordinary
wear and tear) and make all necessary repairs, renewals, replacements, additions, betterments and improvements thereto and actively conduct and carry on its business;  provided, however, that nothing in this Section 4.05 shall prevent
the Company or any of its Restricted Subsidiaries from discontinuing the operation and maintenance of any of its properties if such discontinuance is, in the good faith judgment of the Board of
Directors or other governing body of the Company or the Subsidiary concerned, as the case may be, desirable in the conduct of its businesses and is not disadvantageous in any material respect to the
Holders. 


        (b)
The Company shall maintain insurance (including appropriate self-insurance) against loss or damage of the kinds that, in the good faith judgment of the Company, are
adequate and appropriate for the conduct of the business of the Company and its Restricted Subsidiaries in a prudent manner, with reputable insurers or with the government of the United States or an
agency or instrumentality thereof, in such amounts, with such deductibles, and by such methods as shall be customary, in the good faith judgment of the Company, for companies similarly situated in the
industry. 


        SECTION
4.06. Compliance Certificate; Notice of Default. 


        (a)
The Company and each Guarantor shall deliver to the Trustee, within ninety (90) days after the end of the Company's fiscal year, an Officers' Certificate stating that a review
of the activities of the Company and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers (one of whom is the principal executive
officer, principal financial officer or principal accounting officer) with a view to determining whether they have kept, observed, performed and fulfilled their obligations under this Indenture and
further stating, as to each such Officer signing such certificate, that to the best of such Officer's actual knowledge the Company and its Restricted Subsidiaries during such preceding fiscal year
have kept, observed, performed and fulfilled each and every condition and covenant under this Indenture and no Default or Event of Default occurred during such year and at the date of such certificate
there is no Default or Event of Default that has occurred and is continuing or, if such signers do know of such Default or Event of Default, the certificate shall describe the Default or Event of
Default and its status with particularity. The Officers' Certificate shall also notify the Trustee should the Company elect to change the manner in which it fixes its fiscal year end. 


        (b)
The annual financial statements delivered pursuant to Section 4.08 shall be accompanied by a written report of the Company's independent
accountants (who shall be a firm of established national reputation) that in conducting their audit of such financial statements nothing has come to their attention that would lead them to believe
that the Company has violated any provisions hereof insofar as they relate to accounting matters or, if any such violation has occurred, specifying the nature and 


33





 



period
of existence thereof, it being understood that such accountants shall not be liable directly or indirectly to any Person for any failure to obtain knowledge of any such violation. 



        (c)
(i) If any Default or Event of Default has occurred and is continuing or (ii) if any Holder seeks to exercise any remedy hereunder with respect to a claimed Default
under this Indenture or the Notes, the Company shall deliver to the Trustee, at its address set forth in Section 11.02, by registered or certified mail or by
telegram, telex or facsimile transmission followed by hard copy by registered or certified mail an Officers' Certificate specifying such event, notice or other action within five (5) Business
Days of its becoming aware of such occurrence. 


        SECTION
4.07. Compliance with Laws. 


        The
Company shall, and shall cause each of its Restricted Subsidiaries to, comply with all applicable statutes, rules, regulations, orders and restrictions of the United States, all
states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of its
businesses and the ownership of its properties, except for such noncompliances as are not in the aggregate reasonably likely to have a material adverse effect on the financial condition or results of
operations of the Company and its Restricted Subsidiaries, taken as a whole or the ability of the Company to perform its obligations hereunder. 



        SECTION
4.08. Reports to Holders. Whether or not required by the rules and regulations of the Securities and Exchange Commission (the
"SEC"), so long as any Notes are outstanding, Parent will furnish to the Trustee and, upon request, to the Holders: 



        (1)
all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if Parent were required
to file such Forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" that describes the financial condition and results of operations of Parent and
its consolidated Subsidiaries (showing in reasonable detail, either on the face of the financial statements or in the footnotes thereto and in Management's Discussion and Analysis of Financial
Condition and Results of Operations, the financial condition and results of operations of Parent and its Restricted Subsidiaries separate from the financial condition and results of operations of the
Unrestricted Subsidiaries of Parent, if any) and, with respect to the annual information only, a report thereon by Parent's certified independent accountants; and 


        (2)   all
current reports that would be required to be filed with the SEC on Form 8-K if Parent were required to file such reports, in each case within the
time periods specified in the SEC's rules and regulations. 




        Notwithstanding
the foregoing, Parent may satisfy such requirements prior to the effectiveness of the registration statement contemplated by the Registration Rights Agreement by filing
with the SEC such registration statement, to the extent that any such registration statement contains substantially the same information as would be required to be filed by Parent if it were subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act, and by providing the Trustee and Holders with such Registration Statement (and any amendments thereto) promptly
following the filing thereof. 


        In
addition, following the consummation of the Exchange Offer, whether or not required by the rules and regulations of the SEC, Parent will file a copy of all such information and
reports with the SEC for public availability within the time periods specified in the SEC's rules and regulations (unless the SEC will not accept such a filing). In addition, Parent has agreed that,
prior to the consummation of the Exchange Offer, for so long as any Notes remain outstanding, it will furnish to the Holders upon their request, the information required to be delivered pursuant to
Rule 144(A)(d)(4) under the Securities Act. 


34





 



        The
receipt by the Trustee of any such reports and documents pursuant to this Section 4.08 shall not constitute notice or constructive notice of any
information contained in such documents or determinable from information contained in such documents, including the Company's compliance with
any covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officers' Certificate). 


        SECTION
4.09.    Waiver of Stay, Extension or Usury Laws.    


        The
Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Company and each of the Guarantors from paying all or any portion of the
principal of, premium, if any, or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company and each of the Guarantors hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not
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 had been enacted. 


        SECTION
4.10.    Limitation on Restricted Payments.    Parent will not, and will not
cause or permit any of its Restricted Subsidiaries to, directly or indirectly: 



        (1)   declare
or pay any dividend or make any distribution (other than dividends or distributions payable in Qualified Capital Stock of Parent and dividends and distributions
payable to Parent or another Restricted Subsidiary of Parent) on or in respect of shares of Capital Stock of Parent or its Restricted Subsidiaries to holders of such Capital Stock; 


        (2)   purchase,
redeem or otherwise acquire or retire for value any Capital Stock of Parent or any Restricted Subsidiary, other than any such Capital Stock held by Parent or
any Restricted Subsidiary; 


        (3)   make
any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled
repayment or scheduled sinking fund payment, any Indebtedness of the Company or any Guarantor that is subordinate or junior in right of payment to the Notes or a Guarantee; or 


        (4)   make
any Investment (other than Permitted Investments); 




(each
of the foregoing actions set forth in clauses (1), (2), (3) and (4) being referred to as a "Restricted Payment"), if at the time of such Restricted
Payment or immediately after giving effect thereto: 



        (i)
a Default or an Event of Default shall have occurred and be continuing; 


        (ii)
Parent is not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with the covenant described in
Section 4.12 or 


        (iii)
the aggregate amount of Restricted Payments (including such proposed Restricted Payment) made subsequent to the Issue Date (the amount expended for such purposes, if other than in
cash, being the Fair Market Value of such property at the time of the making thereof) shall exceed the sum of: 



        (A)
the remainder of 



        (a)
100% of the aggregate amount of the Consolidated Cash Flow of Parent accrued on a cumulative basis during the period (taken as one accounting period) beginning on 





35





 



the
first day of Parent's first fiscal quarter after the Issue Date and ending on the last day of the last full fiscal quarter preceding the Transaction Date, minus 



        (b)
the product of 1.75 times cumulative Consolidated Fixed Charges of Parent accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day
of Parent's first fiscal quarter after the Issue Date and ending on the last day of the last full fiscal quarter preceding the Transaction Date; plus 




        (B)
100% of the aggregate net cash proceeds received by Parent from any Person (other than a Subsidiary of Parent) from the issuance and sale subsequent to the Issue Date and on or prior
to the Transaction Date of Qualified Capital Stock of Parent (excluding any net proceeds from an Equity Offering to the extent used to redeem Notes pursuant to the provisions described in
Section 3.01(d)); plus 


        (C)
without duplication of any amounts included in clause (iii)(B) above, 100% of the aggregate net cash proceeds of any equity contribution received by Parent from a holder of
Parent's Capital Stock subsequent to the Issue Date and on or prior to the Transaction Date (excluding any net proceeds from an Equity Offering to the extent used to redeem Notes pursuant to the
provisions described in Section 3.01(d); plus 


        (D)
100% of the aggregate net cash proceeds received from the issuance of Indebtedness or shares of Disqualified Capital Stock of Parent that have been converted into or exchanged for
Qualified Capital Stock of Parent subsequent to the Issue Date and on or prior to the Transaction Date; plus 



        (E)
an amount equal to the sum of (i) the net reduction in the Investments (other than Permitted Investments) made by Parent or any Restricted Subsidiary in any Person resulting
from repurchases, repayments or redemptions of such Investments by such Person, proceeds realized on the sale of such Investment and proceeds representing the return of capital (excluding dividends
and distributions), in each case received by Parent or any Restricted Subsidiary, and (ii) to the extent such Person is an Unrestricted Subsidiary, the portion (proportionate to Parent's equity
interest in such Subsidiary) of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary;  provided,
however, that the foregoing sum shall not exceed, in the case of any such Person or
Unrestricted Subsidiary, the amount of Investments (excluding Permitted Investments) previously made (and treated as a Restricted Payment) by Parent or any Restricted Subsidiary in such Person or
Unrestricted Subsidiary. 





In
the case of clauses (iii)(B) and (C) above, any net cash proceeds from issuances and sales of Qualified Capital Stock of Parent financed directly or indirectly using funds borrowed from
Parent or any Subsidiary of Parent, shall be excluded until and to the extent such borrowing is repaid. 


        Notwithstanding
the foregoing, the provisions set forth in the immediately preceding paragraph do not prohibit: 



        (1)   the
payment of any dividend or other distribution or redemption within 60 days after the date of declaration of such dividend or call for redemption if such
payment would have been permitted on the date of declaration or call for redemption; 


        (2)   the
acquisition of any shares of Qualified Capital Stock of Parent, either (i) solely in exchange for other shares of Qualified Capital Stock of Parent or
(ii) through the application of net proceeds of a sale for cash (other than to a Subsidiary of Parent) of shares of Qualified Capital Stock of Parent within 60 days after such sale; 



        (3)   the
acquisition of any Indebtedness of the Company or the Guarantors that is subordinate or junior in right of payment to the Notes and Guarantees either
(i) solely in exchange for shares 



36





 




of
Qualified Capital Stock of Parent, or (ii) through the application of net proceeds of (a) a sale for cash (other than to a Subsidiary of Parent) within 60 days after such sale
of shares of Qualified Capital Stock of Parent or (b) if no Default or Event of Default would exist after giving effect thereto, Refinancing Indebtedness; 



        (4)   an
Investment either (i) solely in exchange for shares of Qualified Capital Stock of Parent or (ii) through the application of the net proceeds of a sale
for cash (other than to a Subsidiary of Parent) of shares of Qualified Capital Stock of Parent within 60 days after such sale; 


        (5)   if
no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of shares of Capital
Stock of Parent from employees, former employees, directors or former directors of Parent (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the
terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors of Parent under which such shares were granted, issued or sold;  provided,
however, that the aggregate amount of such repurchases and other acquisitions in any calendar
year shall not exceed $250,000; 


        (6)   in
the event of a Change of Control, and if no Default shall have occurred and be continuing or would exist after giving effect, the payment, purchase, redemption,
defeasance or other acquisition or retirement of Indebtedness that is subordinated to the Notes or the Guarantees, in each case, at a purchase price not greater than 101% of the principal amount of
such Indebtedness (or, if such Indebtedness was issued with original issue discount, 101% of the accreted value), plus any accrued and unpaid interest thereon;  provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or
retirement, the Company has made a Change of Control Offer with respect to the Notes as a result of such Change of Control and has repurchased all Notes validly tendered and not withdrawn in
connection with such Change of Control Offer; 


        (7)   repurchases
of Capital Stock deemed to occur upon exercise of stock options, warrants or other similar rights if such Capital Stock represents a portion of the exercise
price of such options, warrants or other similar rights; 


        (8)   payments
or distributions to dissenting stockholders of Capital Stock of Parent pursuant to applicable law, pursuant to or in connection with a consolidation, merger or
transfer of assets that complies with the provisions of this Indenture applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of Parent or any of
its Restricted Subsidiaries; and 


        (9)   if
no Default shall have occurred and be continuing or would exist after giving effect thereto, other Restricted Payments not to exceed $5.0 million in the
aggregate since the Issue Date. 




        In
determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in accordance with clause (iii) of the first paragraph of this
Section 4.10, amounts expended pursuant to clauses (1), (2)(ii), 3(ii)(a), (4)(ii) and (9) shall be included in such calculation. 


        Not
later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment complies with this
Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company's latest available internal quarterly
financial statements. 


        SECTION
4.11.    Limitations on Transactions with Affiliates.    (a) Parent will
not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or 


37





 



exchange
of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each an "Affiliate Transaction"), other than 



        (x)   Affiliate
Transactions permitted under paragraph (b) below, and 


        (y)   Affiliate
Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an
arm's-length basis from a Person that is not an Affiliate of Parent or such Restricted Subsidiary. 




With
respect to all Affiliate Transactions, Parent shall deliver an Officers' Certificate to the Trustee certifying that such transactions are in compliance with clause (a)(y) of the preceding
paragraph. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a Fair Market
Value in excess of $1.0 million shall be approved by a majority of the members of the Board of Directors of Parent (including a majority of the disinterested members thereof), as the case may
be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions. If Parent or any Restricted
Subsidiary of Parent enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate Fair Market Value of more than
$5.0 million, Parent shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of the financial terms of such
transaction or series of related transactions to Parent or the relevant Restricted Subsidiary, as the case may be, from an Independent Financial Advisor and file the same with the Trustee. 



        (b)   The
restrictions set forth in the first paragraph of this covenant shall not apply to: 



        (1)   reasonable
fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of Parent or any Restricted Subsidiary of
Parent as determined in good faith by Parent's Board of Directors or senior management; 


        (2)   transactions
exclusively between or among Parent and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such
transactions are not otherwise prohibited by this Indenture; 


        (3)   any
agreement as in effect as of the Issue Date or any transaction contemplated thereby and any amendment thereto or any replacement agreement thereto so long as any
such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; 


        (4)   Restricted
Payments permitted by this Indenture; and 


        (5)   any
employment, stock option, stock repurchase, employee benefit compensation, business expense reimbursement, severance, termination or other employment-related
agreements, arrangements or plans entered into by Parent or any of its Restricted Subsidiaries in the ordinary course of business. 




        SECTION
4.12.    Limitation on Incurrence of Additional Indebtedness.    Parent will not,
and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur") any Indebtedness (other than Permitted Indebtedness); provided,  however, that the Company,
Parent, or any Restricted Subsidiary of Parent that is or, upon such incurrence, becomes a Guarantor may incur Indebtedness
(including, without limitation, Acquired Indebtedness) if immediately thereafter the ratio (the "Leverage Ratio") of: 



        (1)   the
aggregate principal amount (or accreted value, as the case may be) of Indebtedness of Parent and its Restricted Subsidiaries on a consolidated basis outstanding as
of the Transaction Date to 



38





 

        (2)   the
Pro Forma Consolidated Cash Flow of Parent for the preceding two full fiscal quarters multiplied by two, determined on a pro forma basis as if any such Indebtedness
had been incurred and the proceeds thereof had been applied at the beginning of such two fiscal quarters, 




would
be greater than zero and less than 4.5 to 1.0. 


        SECTION
4.13.    Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.    Parent will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or
become effective any encumbrance or restriction on the ability of any Restricted Subsidiary of Parent to: 



        (1)   pay
dividends or make any other distributions on or in respect of its Capital Stock; 


        (2)   make
loans or advances or to pay any Indebtedness or other obligation owed to Parent or any other Restricted Subsidiary of Parent; or 


        (3)   transfer
any of its property or assets to Parent or any other Restricted Subsidiary of Parent, 




except
for such encumbrances or restrictions existing under or by reason of: 


        (a)   applicable
law, rule or regulation; 


        (b)   this
Indenture; 


        (c)   customary
non-assignment provisions of any lease of any Restricted Subsidiary of Parent to the extent such provisions restrict the transfer of the lease or
the property leased thereunder; 


        (d)   any
instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so acquired; 


        (e)   agreements
existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date; or 


        (f)    restrictions
on the transfer of assets subject to any Lien permitted under this Indenture; 


        (g)   restrictions
imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale; 



        (h)   provisions
in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity
interests therein) entered into in the ordinary course of business; 


        (i)    restrictions
contained in the terms of Purchase Money Indebtedness or Capitalized Lease Obligations not incurred in violation of this Indenture;  provided, that such restrictions relate only to the assets financed
with such Indebtedness; 


        (j)    restrictions
in other Indebtedness incurred in compliance with the covenant described in Section 4.12 (including Permitted
Indebtedness); provided that such restrictions, taken as a whole, are, in the good faith judgment of Parent's Board of Directors, no more materially
restrictive with respect to such encumbrances and restrictions than those customary in comparable financings (as determined by Parent) and Parent determines that any such encumbrance or restriction
will not materially affect the Company's ability to make principal or interest payments on the Notes; 



        (k)   restrictions
on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business; or 


39







  





        (l)    an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (b), (d), or
(j) above; provided, however, that the provisions relating to such encumbrance or restriction
contained in any such Indebtedness are no less favorable to Parent in any material respect as determined by the Board of Directors of Parent in their reasonable and good faith judgment than the
provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (b), (d) or (j). 


        SECTION
4.14.    Additional Subsidiary Guarantees.    If Parent or any of its Restricted
Subsidiaries shall organize, acquire or otherwise invest in another Person that is or becomes a Domestic Restricted Subsidiary that is not a Guarantor, then Parent shall cause such Domestic Restricted
Subsidiary that is not a Guarantor to: 



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


        (2)   execute
and deliver to the Collateral Agent amendments to the Collateral Agreements and take such other actions necessary or as the Collateral Agent deems advisable in
order to grant to the Collateral Agent, for the benefit of the Holders, a perfected Lien in the assets other than Excluded Collateral of such Domestic Restricted Subsidiary, including the filing of
Uniform Commercial Code financing statements in such jurisdictions as may be required by the Collateral Agreements; 


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


        (4)   deliver
to the Trustee an Opinion of Counsel that such supplemental indenture and any other documents required to be delivered have been duly authorized, executed and
delivered by such Domestic Restricted Subsidiary and constitutes a legal, valid, binding and enforceable obligations of such Domestic Restricted Subsidiary. 




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


        SECTION
4.15.    Limitation on Change of Control.    


        (a)   Upon
the occurrence of a Change of Control, each Holder will have the right to require that the Company purchase all or a portion (in integral multiples of $1,000) of
such Holder's Notes using immediately available funds pursuant to the offer described below (the "Change of Control Offer"), at a purchase price in cash equal to 101% of
the Accreted Value thereof on the date of purchase, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase. 


        (b)   Within
30 days following the date upon which the Change of Control occurred, the Company shall send, by registered first-class mail, postage prepaid, a notice to
each record Holder as shown on the register of Holders, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. The notice to the Holders shall contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the Change of Control Offer. Such notice shall state: 



        (1)   that
the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered and not withdrawn shall be
accepted for payment; 


        (2)   the
purchase price (including the amount of accrued interest and Additional Interest, if any) and the purchase date (which shall be no earlier than thirty
(30) days nor later than sixty (60) days from the date such notice is mailed, other than as may be required by law) (the "Change of Control Payment Date"); 



40





 




        (3)   that
any Note not tendered shall continue to accrete in value and accrue interest (and Additional Interest, if any); 


        (4)   that,
unless the Company defaults in making payment therefor, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete in value and
accrue interest (and Additional Interest, if any) after the Change of Control Payment Date; 


        (5)   that
Holders electing to have a Note purchased pursuant to a Change of Control Offer shall be required to surrender the Note, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day prior to the Change of Control
Payment Date; 


        (6)   that
Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than three (3) Business Days prior to the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such
Holder is withdrawing its election to have such Notes purchased; 


        (7)   that
Holders whose Notes are purchased only in part shall be issued new Notes in a principal amount at maturity equal to the unpurchased portion of the Notes
surrendered; provided that each Note purchased and each new Note issued shall be in an original principal amount at maturity of $1,000 or integral multiples thereof; and 


        (8)   the
circumstances and relevant facts regarding such Change of Control. 




        If
any of the Notes subject to the Change of Control Offer is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to comply with the
procedures of the Depositary applicable to repurchases. 


        On
or before the Change of Control Payment Date, the Company shall (i) accept for payment Notes or portions thereof properly tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, (and Additional Interest, if any) of all Notes or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail to the Holders of Notes so tendered the purchase price for such Notes and the Company shall promptly issue and the Trustee
shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered;
provided that each such new Note shall be in a principal amount at maturity of $1,000 or an integral multiple thereof. Any Notes not so accepted shall be promptly mailed
by the Company to the Holders thereof. For purposes of this Section 4.15, the Trustee shall act as the Paying Agent. 


        Any
amounts remaining after the purchase of Notes pursuant to a Change of Control Offer shall be returned by the Trustee to the Company. 



        Neither
the Board of Directors of the Company nor the Trustee may waive the Company's obligation to offer to purchase the Notes pursuant to this
Section 4.15. 


        The
Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent the provisions of any securities laws or regulations conflict with the
provisions under this Section 4.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.15 by virtue thereof. 


41





 



        The
Company shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise
in compliance with the requirements of this Section 4.15 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. 



        SECTION
4.16. Limitation on Asset Sales. Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: 



        (1)
Parent or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets sold
or otherwise disposed; 


        (2)
at least 75% of the consideration received by Parent or the Restricted Subsidiary, as the case may be, from such Asset Sale is in the form of cash or Cash Equivalents and is received
at the time of such disposition; provided that the amount of any liabilities (as shown on the most recent applicable balance sheet) of Parent or such
Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this
provision so long as the documents governing such liabilities provide that there is no further recourse to Parent or any of its Subsidiaries with respect to such liabilities; and 


        (3)
Parent shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 360 days of receipt thereof either: 



        (a)
to repay First Priority Claims; 


        (b)
to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or in long-term properties and assets that
will be used in the business (including expenditures for maintenance, repair or improvement of existing properties and
assets) of Parent and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto ("Replacement Assets"); or 



        (c)
a combination of repayment and investment permitted by the foregoing clauses (3)(a) and (3)(b). 





        Pending
the final application of Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or invest such Net Cash Proceeds in Cash Equivalents. On the 361st day
after an Asset Sale or such earlier date, if any, as the Board of Directors of Parent or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set
forth in clauses (3)(a), 3(b) or 3(c) of the preceding paragraph (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which have not
been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of the preceding paragraph (each a "Net Proceeds Offer
Amount") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds Offer") on a date (the
"Net Proceeds Offer Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders and all holders
of other Applicable Indebtedness containing provisions similar to those set forth in this Section 4.16 on a pro rata basis, the maximum
principal amount at maturity of Notes and such other Applicable Indebtedness that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of the principal amount thereof (or if
such Indebtedness was issued with original issue discount, 100% of the accreted value), plus accrued and unpaid interest and Additional Interest thereon, if any, to the date of purchase;  provided,
however, that if at any time any non-cash consideration received by Parent or any
Restricted Subsidiary of Parent, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any
such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder on the date of such 


42





 

conversion
or disposition, as the case may be, and the Net Cash Proceeds thereof shall be applied in accordance with this covenant. 


        The
Company may defer any Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $5.0 million resulting from one or more
Asset Sales in which case the accumulation of such amount shall constitute a Net Proceeds Offer Trigger Date (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in
excess of $5.0 million, shall be applied as required pursuant to the immediately preceding paragraph). Upon the completion of each Net Proceeds Offer, the Net Proceeds Offer Amount will be
reset at zero. 


        In
the event of the transfer of substantially all (but not all) of the property and assets of Parent and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted
in Section 5.01, which transaction does not constitute a Change of Control, the successor entity shall be deemed to have sold the properties and assets of Parent
and its Restricted Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant (other than clause (2) of the first
paragraph of this covenant) with respect to such deemed sale as if it constituted an Asset Sale. In addition, the Fair Market Value of such properties and assets of Parent or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this covenant. 


        To
the extent that the aggregate principal amount of Notes tendered pursuant to such Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company and its Restricted
Subsidiaries may use such deficiency for any purposes not prohibited by this Indenture (including repayment of Indebtedness). Upon completion of such Net Proceeds Offer, the amount of Net Proceeds
Offer Amount will be reset to zero. 


        Each
notice of a Net Proceeds Offer shall be mailed first class, postage prepaid, to the record Holders as shown on the register of Holders within 20 days following the Net
Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender
their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of
tendering Holders will be purchased on a pro rata basis (based on amounts tendered). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer
period as may be required by law. 


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


        SECTION
4.17. Limitation on Liens. Parent will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or permit or suffer to exist any Liens (other than Permitted Liens) of any kind against or upon any property or assets of Parent or any of its Restricted Subsidiaries whether owned on
the Issue Date or acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom. 


        SECTION
4.18. Conduct of Business. Parent and its Restricted Subsidiaries will not engage in any business other than the Permitted Business. 


        SECTION
4.19. Limitation on Issuances and Sales of Capital Stock of Subsidiaries. Parent shall at all times own 100% of the Capital Stock of the Company.
Parent will not permit or cause any of its Restricted Subsidiaries to issue, sell, lease, transfer or otherwise dispose of any Capital Stock (other than to Parent or to a Wholly-Owned Restricted
Subsidiary of Parent), except as required by applicable law; provided, however, that this provision
shall not prohibit (1) any issuance or sale if, immediately 


43





 



after
giving effect thereto, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary and any Investment in such Person remaining after giving effect to such issuance or sale
would have been permitted to be made under Section 4.10 if made on the date of such issuance or sale or (2) the sale of all of the Capital Stock of a
Restricted Subsidiary in compliance with Section 4.16. 


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


        SECTION
4.21. Subsequent Issuance. 


        (a)
Upon the issuance by the Company of Additional Notes, if the Company determines that such Additional Notes should be assigned a different CUSIP number than the Initial Notes,
immediately following such issuance, a portion of each holder's Initial Notes and/or Additional Notes, as applicable, will automatically, without any action by such holder, be exchanged (the
"Automatic Exchange") for a portion of each other holder's Notes, such that immediately after the Automatic Exchange, each holder will hold Initial Notes and Additional
Notes in the same proportion as the ratio of the then outstanding aggregate principal amount of Initial Notes to the then outstanding aggregate principal amount of Additional Notes. The aggregate
principal amount of Notes owned by each holder will not change as a result of the Automatic Exchange. Immediately following the Automatic Exchange, the Company and the Trustee will instruct the
Depositary to facilitate the combination of the Initial Notes and Additional Notes into indivisible units ("Unit Securities") and thereafter the term Initial Notes shall
be deemed, for the purposes of this Section 4.21, to include the Unit Securities. 


        (b)
At least ten (10) business days prior to the closing of a subsequent issuance that is likely to result in an Automatic Exchange, the Company shall notify the Trustee, in
writing of its intention to consummate such subsequent issuance and shall instruct the Trustee and DTC to take any action necessary to effect the Automatic Exchange. Such notice may be revoked at any
time prior to the date fixed for the Automatic Exchange 


        SECTION
4.22. Impairment of Lien. Neither the Company, Parent nor any of its Restricted Subsidiaries will take or omit to take any action which would
adversely affect or impair in any material respect the Liens in favor of the Collateral Agent with respect to the Collateral, except as permitted by the Collateral Agreements or this Indenture.
Neither the Company nor any of its Domestic Restricted Subsidiaries shall grant to any Person (other than the Collateral Agent), or permit any Person (other than the Collateral Agent), to retain any
interest whatsoever in the Collateral other than Permitted Liens. Neither the Company nor any of its Restricted Subsidiaries will enter into any agreement that requires the proceeds received from any
sale of Collateral to be applied to repay, redeem, defease or otherwise acquire or retire any Indebtedness of any Person, other than the First Priority Claims and as otherwise permitted by this
Indenture, the Notes and the Collateral Agreements. The Company shall, and shall cause each Guarantor to, at their sole cost and expense, execute and deliver all such agreements and instruments as the
Collateral Agent or the Trustee shall reasonably request to more fully or accurately describe the property intended to be Collateral or the obligations intended to be secured by the Collateral
Agreements. The Company shall, and shall cause each Guarantor to, at their sole cost and expense, file any such notice filings or other agreements or instruments as may be reasonably necessary or
desirable under applicable law to perfect the Liens created by the Collateral Agreements at such times and at such places as the Collateral Agent or the Trustee may reasonably request. 


        SECTION
4.23. Real Estate Mortgages and Filings. With respect to any fee interest in any real property (individually and collectively, the "Premises")
acquired by the Parent or a Domestic Restricted 


44





 



Subsidiary
after the Issue Date, with a purchase price greater than $1,000,000, within 90 days of the acquisition thereof: 



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


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


        (3)
the Company shall deliver to the Collateral Agent, with respect to each of the covered Premises, the most recent survey of such Premises, together with either (i) an updated
survey certification in favor
of the Trustee and the Collateral Agent from the applicable surveyor stating that, based on a visual inspection of the property and the knowledge of the surveyor, there has been no change in the facts
depicted in the survey or (ii) an affidavit from the Company and the Guarantors stating that there has been no change, other than, in each case, changes that do not materially adversely affect
the use by the Company or Guarantor, as applicable, of such Premises for the Company or such Guarantor's business as so conducted, or intended to be conducted, at such Premises. 



 
 

ARTICLE FIVE
  
    SUCCESSOR CORPORATION    
    


        SECTION 5.01. Merger, Consolidation and Sale of Assets. Neither Parent nor the Company will, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of Parent to sell,
assign, transfer, lease, convey or otherwise dispose of) all or substantially all of its assets whether as an entirety or substantially as an entirety to any Person unless: 



        (1)
either: 



        (a)
Parent or the Company, as the case may be, shall be the surviving or continuing corporation; or 


        (b)
the Person (if other than Parent or the Company) formed by such consolidation or into which Parent or the Company is merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the properties and assets of Parent or the Company (the "Surviving Entity"): 



        (x)
shall be a corporation organized and validly existing under the laws of the United States or any State thereof or the District of Columbia; and 


        (y)
shall expressly assume, by (i) supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and
punctual payment of the principal of, and premium, if any, interest and Additional Interest, if any, on all of the Notes and the performance of every covenant of the Notes, this Indenture and the
Registration Rights Agreement on the part of Parent or the Company to be performed or observed thereunder and (ii) by amendment, supplement or other instrument (in form and substance reasonably
satisfactory to the Trustee and the 





45





 






Collateral
Agent), executed and delivered to the Trustee and the Collateral Agent, all obligations of the Company under the Collateral Agreements, and in connection therewith shall cause such
instruments to be filed and recorded in such jurisdictions and take such other actions as may be required by applicable law to perfect or continue the perfection of the Lien created under the
Collateral Agreements on the Collateral owned by or transferred to the surviving entity; 





        (2)
immediately after giving effect to such transaction and the assumption contemplated by clause (1)(b)(y) above (including giving effect to any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), Parent or such Surviving Entity, as the case may be, (a) shall have a Consolidated Net
Worth at least equal to the Consolidated Net Worth of Parent immediately prior to such transaction and (b) shall be able to incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12; 


        (3)
immediately after giving effect to such transaction and the assumption contemplated by clause (1)(b)(y) above (including, without limitation, giving effect to any Indebtedness
and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be
continuing; and 


        (4)
Parent, the Company or the Surviving Entity shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger,
sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the
applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied. 




        For
purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or
assets of one or more Restricted Subsidiaries of Parent or the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of Parent or the Company, as the
case may be, shall be deemed to be the transfer of all or substantially all of the properties and assets of Parent or the Company. 



        SECTION
5.02. Successor Corporation Substituted. Upon any consolidation, combination or merger or any transfer of all or substantially all of the assets of
Parent or the Company in accordance with the foregoing, in which the Parent or the Company, as the case may be, is not surviving or the continuing corporation, the successor Person formed by such
consolidation or into which Parent or the Company is merged or to which such conveyance, lease or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of,
Parent or the Company under this Indenture and the Notes with the same effect as if such surviving entity had been named as such. Upon such substitution, the Company and any Guarantors that remain
Subsidiaries of the Parent shall be released from their obligations under this Indenture and the Guarantees. 


 
 

ARTICLE SIX
  
    DEFAULT AND REMEDIES    
    


        SECTION 6.01. Events of Default. 


        Each
of the following is an "Event of Default": 



        (1)
the failure to pay interest and Additional Interest, if any, on any Notes or any other amount (other than principal for the Notes) when the same becomes due and payable and the
default continues for a period of 30 days; 



46





 

        (2)
the failure to pay the principal of or premium, if any, on any Notes, when such principal becomes due and payable, at maturity, upon redemption or otherwise (including the failure to
make a payment to purchase Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer); 



        (3)
a default in the observance or performance of any other covenant or agreement contained in this Indenture (other than the payment of the principal of, or premium, if any, or interest
or and Additional Interest, if any, on any Note) or any Collateral Agreement which default continues for a period of 30 days after Parent or the Company receives written notice specifying the
default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount at maturity of the Notes (except in the case of a default with
respect to Section 5.01, which will constitute an Event of Default with such notice requirement but without such passage of time requirement); 



        (4)
the failure to pay at final maturity (giving effect to any applicable grace periods and any extensions thereof) the principal amount of any Indebtedness of Parent or any Restricted
Subsidiary of Parent, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 20 days from the date of
acceleration) if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at final maturity or
which has been accelerated (in each case with respect to which the 20-day period described above has elapsed), aggregates $5.0 million or more at any time; 



        (5)
one or more judgments in an aggregate amount in excess of $5.0 million shall have been rendered against Parent or any of its Restricted Subsidiaries (other than any judgment
as to which a reputable and solvent third party insurer has accepted full coverage) and such judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or
judgments become final and non-appealable; 


        (6)
the Parent, the Company or any Significant Subsidiary (A) commences a voluntary case or proceeding under any Bankruptcy Code with respect to itself, (B) consents to the
entry of a judgment, decree or order for relief against it in an involuntary case or proceeding under any Bankruptcy Code, (C) consents to the appointment of a Custodian of it or for
substantially all of its property, (D) consents to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it, (E) makes a general assignment for the benefit
of its creditors; or (F) takes any corporate action to authorize or effect any of the foregoing; 


        (7)
a court of competent jurisdiction enters a judgment, decree or order for relief in respect of the Parent, the Company or any Significant Subsidiary in an involuntary case or
proceeding under any Bankruptcy Code, which shall (A) approve as properly filed a petition seeking reorganization, arrangement, adjustment or composition in respect of the Company or any
Significant Subsidiary, (B) appoint a Custodian of the Company or any Significant Subsidiary or for substantially all of its property or (C) order the winding-up or
liquidation of its affairs; and such judgment, decree or order shall remain unstayed and in effect for a period of sixty (60) consecutive days; 


        (8)
any Collateral Agreement at any time for any reason shall cease to be in full force and effect in all material respects, or ceases to give the Collateral Agent the Liens, rights,
powers and privileges purported to be created thereby, (except, in each case, if terminated in accordance with its terms or in accordance with the terms of the Indenture) superior to and prior to the
rights of all third Persons other than the holders of Permitted Liens and subject to no other Liens except as expressly permitted by the applicable Collateral Agreement or this Indenture; 



47





 




        (9)
the Company or any of the Guarantors, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Collateral Agreement; or 


        (10)
the Guarantee of Parent or any Significant Subsidiary ceases to be in full force and effect or is declared to be null and void and unenforceable or is found to be invalid or any
Guarantor denies its liability under its Guarantee (other than by reason of release of a Guarantor in accordance with the terms of this Indenture). 




        SECTION
6.02. Acceleration. 


        (a)
If an Event of Default (other than an Event of Default specified in Sections 6.01 (6) or (7) above with respect to Parent or
the Company) shall occur and be continuing and has not been waived, the Trustee or the Holders of at least 25% in principal amount at maturity of outstanding Notes may declare the principal of and
premium, if any, accrued interest and Additional Interest, if any, on all the Notes to be due and payable by notice in writing to the Company and the Trustee (if given by the Holders) specifying the
Event of Default and that it is a "notice of acceleration" (the "Acceleration Notice"), and the same shall become immediately due and payable. 


        (b)
If an Event of Default specified in Sections 6.01 (6) or (7) above with respect to Parent or the Company occurs and is
continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest and Additional Interest, if any, on all of the outstanding Notes shall ipso
facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. 


        (c)
At any time after a declaration of acceleration with respect to the Notes as described in the preceding paragraphs, the Holders of a majority in principal amount at maturity of the
Notes may rescind and cancel such declaration and its consequences: (1) if the rescission would not conflict with any judgment or decree; (2) if all existing Events of Default have been
cured or waived except nonpayment of principal, premium, if any, interest or Additional Interest, if any, that has become due solely because of the acceleration; (3) to the extent the payment
of such interest is lawful, interest on overdue installments of interest and overdue principal and premium, if any, and Additional Interest, if any, which has become due otherwise than by such
declaration of acceleration, has been paid; (4) if Parent or the Company has paid the Trustee its compensation and reimbursed the Trustee for its expenses, disbursements and its advances; and
(5) in the event of the cure or waiver of an Event of Default of the type described in Sections 6.01 (6) or (7) of the description
above of Events of Default, the Trustee shall have received an Officers' Certificate and an Opinion of Counsel that such Event of Default has been cured or waived. No such rescission shall affect any
subsequent Default or impair any right consequent thereto. 


        SECTION
6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity
to collect the payment of principal of,
premium, if any, or interest on the Notes or to enforce the performance of any provision of the Notes, this Indenture, any Collateral Agreement or any Guarantee. 


        The
Trustee or the Collateral Agent may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the
Trustee, the Collateral Agent or any Holder 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. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law. 


48







  





        SECTION 6.04. Waiver of Past Defaults. 


        Subject
to Sections 2.09, 6.07 and 9.02, the Holders of a majority in principal amount at maturity
of the Notes may waive any existing Default or Event of Default, and its consequences, except (other than as provided in Section 6.02(c)) a default in the payment
of the principal of or premium, if any, interest or Additional Interest, if any, on any Notes or in respect of a covenant or provision which under this Indenture cannot be modified or amended without
the consent of the Holder of each Note then outstanding. When a Default or Event of Default is waived, it is cured and ceases to exist and is deemed to have been cured and not to have occurred, and
any Event of Default arising therefrom shall be deemed to have been cured and not to have occurred for every purpose of this Indenture, the Notes and the Collateral Agreements, but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. 


        SECTION
6.05. Control by Majority. 


        Subject
to Section 2.09, the Holders of a majority in principal amount at maturity of the outstanding Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, including, without limitation, any remedies provided for in
Section 6.03. Subject to Section 7.01 and 7.02(f), however, the Trustee may refuse to follow any
direction that the Trustee believes conflicts with any law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Holder, or that may involve the Trustee in
personal liability; provided that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. 


        SECTION
6.06. Limitation on Suits. 


        A
Holder may not pursue any remedy with respect to this Indenture or the Notes unless: 



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



        (2)
subject to Section 2.09, Holders of at least 25% in principal amount at maturity of the outstanding Notes make a written request to the Trustee to
institute proceedings in respect of that Event of Default; 


        (3)
such Holders offer to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense to be incurred in compliance with such request; 


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



        (5)
during such sixty (60) day period the Holders of a majority in principal amount at maturity of the outstanding Notes do not give the Trustee a direction which, in the opinion
of the Trustee, is inconsistent with the request. 




        The
foregoing limitations shall not apply to a suit instituted by a Holder for the enforcement of the payment of principal of, premium, if any, or interest (and Additional Interest, if
any) on such Note on or after the respective due dates set forth in such Note (including upon acceleration thereof) or the institution of any proceeding with respect to this Indenture or any remedy
hereunder, including without limitation acceleration, by the Holders of a majority in principal amount at maturity of outstanding Notes; provided that
upon institution of any proceeding or exercise of any remedy, such Holders provide the Trustee with prompt notice thereof. 


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


49





 



        SECTION
6.07. Rights of Holders to Receive Payment. 


        Notwithstanding
any other provision of this Indenture, the right of any Holder to receive payment of principal of, premium, if any, and interest on a Note, on or after the respective due
dates expressed in such Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. 


        SECTION
6.08. Collection Suit by Trustee or Collateral Agent. 


        If
an Event of Default in payment of principal of, premium, if any, or interest specified in Section 6.01(1) or (2)
occurs and is continuing, the Trustee and the Collateral Agent may recover judgment (i) in its own name and (ii)(x) in the case of the Trustee, as trustee of an express trust or
(y) in the case of the Collateral Agent, as collateral agent on behalf of each of the Holders, in each case against the Company or any other obligor on the Notes for the whole amount of
principal, premium, if any, and accrued interest (and Additional Interest, if any) remaining unpaid, together with interest on overdue principal and, to the extent that payment of such interest is
lawful, interest on overdue installments of interest at the rate set forth in Section 4.01 and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the compensation, expenses, disbursements and advances of the Trustee, the Collateral Agent and their respective agents and counsel and any other amounts due the
Trustee under the Collateral Agreements and Section 7.07 hereof. 


        SECTION
6.09. Trustee May File Proofs of Claim. 


        Subject
to the Intercreditor Agreement, the Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the compensation, expenses, taxes, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings
relating to the Company or any other obligor upon the Notes, any of their respective creditors or any of their respective property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute the same, 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, taxes, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee serving as Collateral Agent or otherwise under the Intercreditor Agreement,
the Collateral Agreements and Section 7.07. The Company's payment obligations under this Section 6.09 shall be secured in
accordance with the provisions of Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding, provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official and may be a member of the creditors' committee. 



        SECTION
6.10. Priorities. 


        If
the Trustee or the Collateral Agent collects any money or property pursuant to this Article Six, it shall, subject to the terms of the Intercreditor
Agreement, pay out the money in the following order: 


        First:
to the Trustee, the Collateral Agent, the Paying Agent and the Registrar for amounts due under Section 7.07 (including payment of all
compensation expense, all liabilities incurred and all advances made by the Trustee and the costs and expenses of collection); 



        Second:
if the Holders are forced to proceed against the Company directly without the Trustee, to Holders for their collection costs; 


50





 



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


        Fourth:
to the Company or any other obligor on the Notes, as their interests may appear, or as a court of competent jurisdiction may direct. 


        The
Trustee, upon prior notice to the Company, may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. 


        SECTION
6.11. Undertaking for Costs. 


        All
parties to this Indenture agree, and each Holder by its acceptance of its Note shall be deemed to have agreed, that in any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.06, or a suit by a Holder or Holders of more than 10% in principal amount at maturity of the outstanding Notes. 


        SECTION
6.12. Restoration of Rights and Remedies. 


        If
the Trustee or any Holder has instituted any proceedings to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or
has been
determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted. 


        SECTION
6.13. Rights and Remedies Cumulative. 


        Except
as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy. 


        SECTION
6.14. Delay or Omission not Waiver 


        No
delay or omission of the Trustee or the Collateral Agent or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or in acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. 


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ARTICLE SEVEN
  
    TRUSTEE    
    


        SECTION 7.01. Duties of Trustee. 


        The
duties and responsibilities of the Trustee shall be as provided by the TIA and as set forth herein. All provisions of this Article Seven applicable to
the Trustee shall also apply to the Collateral Agent. 


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


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



        (1)
the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the TIA, and the Trustee need perform only those duties as are specifically set
forth in this Indenture and no covenants or obligations shall be implied in or read into this Indenture against the Trustee; and 


        (2)
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; provided,  however, in case of any such certificates or opinions
furnished to the Trustee which by the provisions hereof are 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 calculation
or other facts stated herein. 


        This
Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such Section 315(a) is hereby expressly excluded from this Indenture as permitted by the TIA. 




        (c)
Notwithstanding anything to the contrary herein contained, the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that: 



        (1)
this paragraph does not limit the effect of paragraph (b) of this Section 7.01; 


        (2)
the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent
facts; and 


        (3)
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. 


        Sections
7.01(c)(1), (2) and (3) shall be in lieu of Section 315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are
herein expressly excluded form this Indenture, as permitted by the TIA. 




        (d)
No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability or expense. The Trustee shall be under no obligation to
exercise of any of its rights or powers under this Indenture, the Intercreditor Agreement or the Collateral Agreements at the request of any Holders unless such Holder has offered to the Trustee
security and indemnity satisfactory to the Trustee against such risk, liability or expense is not reasonably assured to it. 


        (e)
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), (c) and (d) of this Section 7.01. 


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


        (g)
Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee, the Paying Agent or the Registrar be liable under or in connection with this Indenture for
indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Trustee, the
Paying Agent or the Registrar has been advised of the possibility thereof and regardless of the form of action in which such damages are sought. 



        (h)
The Trustee shall not be liable for the failure to perform its duties and obligations hereunder to the extent such failure is directly caused by the failure of the Company to perform
its obligations hereunder. 


        SECTION
7.02. Rights of Trustee. 


        Subject
to Section 7.01: 


        (a)
The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement instrument, opinion, report, request
direction, consent, order, bond, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document. 


        (b)
Before the Trustee acts or refrains from acting, it may consult with counsel and may require an Officers' Certificate or an Opinion of Counsel, or both, which shall conform to
Sections 11.04 and 11.05. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. The written advice of the Trustee's counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action
taken, suffered or omitted by the Trustee hereunder in good faith and in reliance thereon. 



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


        (d)
The Trustee shall not be liable for any action taken, suffered, or omitted to be taken in good faith which it reasonably believes to be authorized or within its rights or powers
under this Indenture. 


        (e)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, notice, request, direction,
consent, order, bond, debenture, 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 and, if the
Trustee shall determine to make such further inquiry or investigation, it shall be entitled, upon reasonable notice to the Company, to examine the books, records and premises of the Company,
personally or by agent or attorney and to consult with the officers and representatives of the Company, including the Company's accountants and attorneys at the sole cost of the Company and shall
incur no liability or additional liability of any kind by reason of such inquiry or investigation. Except as expressly stated herein to the contrary, in no event shall the Trustee have any
responsibility to ascertain whether there has been compliance with any of the covenants or provisions of Articles Four or Five hereof. 


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


53





 



        (g)
The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder. 



        (h)
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 and any
resolution of the Board of Directors shall be sufficient if evidenced by a copy of such resolution certified by an Officer of the Company to have been duly adopted and in full force and effect on the
date hereof. 


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



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


        (k)
The Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless the Trust Officer or the Trustee shall have received from the
Company, any Guarantor or any other obligor upon the Notes or from any Holder written notice thereof at its address set forth in Section 11.02 hereof, and such
notice references the Notes and this Indenture. 


        (l)
The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder. 


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


        (n)
The permissive right of the Trustee to take any action under this Indenture or any Collateral Agreements shall not be construed as a duty to so act. 


        SECTION
7.03. Individual Rights of Trustee. 


        The
Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company, any Subsidiary of the Company or their respective
Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee must comply with Sections 7.10 and
7.11 of this Indenture, and the Trustee is subject to TIA Sections 310(b) and 311, excluding any creditor relationship listed in TIA Section 311(b). 


        SECTION
7.04. Trustee's Disclaimer. 


        The
Trustee makes no representation as to the validity, adequacy or sufficiency of this Indenture, the Notes, the Intercreditor Agreement or the Collateral Agreements, and it shall not
be accountable for the Company's use of the proceeds from the Notes, and it shall not be responsible for any statement of the Company in this Indenture, the Notes, the Intercreditor Agreement, the
Collateral Agreements or any other documents connected with the issuance of the Notes other than the Trustee's certificate of authentication, which shall be taken as the statement of Company, and the
Trustee assumes no responsibility for their correctness. 


        Beyond
the exercise of reasonable care in the custody thereof and the fulfillment of its obligations under this Indenture and the Collateral Documents, the Trustee shall have no duty as
to any Collateral 


54





 



in
its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto.
The Trustee shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords
its own property. 


        The
Trustee makes no representations as to and shall not be responsible for the existence, genuineness, value, sufficiency or condition of any of the Collateral or as to the security
afforded or intended to be afforded thereby, hereby or by any Collateral Document, or for the validity, perfection, priority or enforceability of the Liens or security interests in any of the
Collateral created or intended to be created by any of the Collateral Agreements, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to
the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral, any Collateral Agreements or any
agreement or assignment contained in any thereof, for the validity of the title of the Company or any Guarantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges,
assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee shall have no duty to ascertain or inquire as to the performance or observance of any of the
terms of this Indenture or any other Collateral Agreement by the Company or any other Person that is a party thereto or bound thereby. 


        SECTION
7.05. Notice of Default. 


        If
a Default or an Event of Default occurs and is continuing and if a Trust Officer has actual knowledge or has received written notice from the Company or any Holder, the Trustee shall
mail to each Holder, with a copy to the Company, notice of the Default or Event of Default within thirty (30) days thereof unless such Default or Event of Default shall have been cured or
waived before the giving of such notice. Except in the case of a Default or an Event of Default in payment of principal of, premium, if any, or interest on, any Note, including an accelerated payment
and the failure to make payment on the Change of Control Payment Date pursuant to a Change of Control Offer and, except in the case of a failure to comply with Article
Five, the Trustee may, in lieu of TIA Section 315(b), withhold the notice if and so long as its Board of Directors, the executive committee of its Board of Directors or a
committee of its directors and/or Trust Officers in good faith determines that withholding the notice is in the interest of the Holders. 


        SECTION
7.06. Reports by Trustee to Holders. 


        Within
sixty (60) days after each May 15, beginning with May 15, 2005, the Trustee shall, to the extent that any of the events described in TIA Section 313(a)
occurred within the previous twelve months, but not otherwise, mail to each Holder a brief report dated as of such date that complies with TIA Section 313(a). The Trustee also shall comply with
TIA Sections 313(b) and (c). 


        A
copy of each report at the time of its mailing to Holders shall be mailed to the Company and filed by the Company with the Commission and each stock exchange or market, if any, on
which the Notes are listed or quoted. 


        The
Company shall promptly notify the Trustee if the Notes become listed, quoted on or delisted from any stock exchange or market and the Trustee shall comply with TIA
Section 313(d). 


        SECTION
7.07. Compensation and Indemnity. 


        The
Company shall pay to the Trustee, the Collateral Agent, the Paying Agent and the Registrar (each an "Indemnified Party") from time to time compensation
for their respective services as Trustee, Collateral Agent, Paying Agent or Registrar, as the case may be, as the Trustee, Collateral Agent and the Company shall have agreed. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse each Indemnified Party upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made 


55





 



by
it in connection with the performance of its duties under, as the case may be, this Indenture, the Collateral Agreements or the Intercreditor Agreement. Such expenses, disbursements and advances
shall include the reasonable fees, expenses, disbursements and advances of each of such Indemnified Party's agents and counsel. 


        The
Company and the Guarantors hereby indemnify each Indemnified Party and its agents, employees, stockholders and directors and officers for, and holds each of them harmless against,
any loss, damage, cost, claim, liability or expense (including taxes) incurred by any of them except for such actions to the extent caused by any gross negligence or willful misconduct on the part of
such Indemnified Party, arising out of or in connection with this Indenture, the Intercreditor Agreement or the Collateral Agreements or the administration of this trust, including the reasonable
costs and expenses of enforcing this Indenture against the Company (including this Section 7.07) and defending themselves against any claim or liability in
connection with the exercise or performance of any of their rights, powers or duties hereunder or thereunder (including the reasonable fees and expenses of counsel). The Trustee shall notify the
Company promptly of any claim asserted against an Indemnified Party for which such Indemnified Party has advised the Trustee that it may seek indemnity hereunder or under the Collateral Agreements or
Intercreditor Agreement. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. At the Indemnified Party's sole discretion, the Company shall
defend the claim and the Indemnified Party shall cooperate and may participate in the defense; provided that any settlement of a claim shall be approved
in writing by the Indemnified Party. Alternatively, the Indemnified Party may at its option have separate counsel of its own choosing and the Company shall pay the reasonable fees and expenses of such
counsel; provided that the Company shall not be required to pay such fees and expenses if it assumes the Indemnified Party's defense and there is no
conflict of interest between the Company and the Indemnified Party in connection with such defense as reasonably determined by the Indemnified Party. The Company need not pay for any settlement made
without its written consent, which consent shall not be unreasonably withheld. 


        To
secure the Company's payment obligations in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, in its capacity as Trustee, for any amount owing it or any predecessor Trustee, except money or property held in trust to pay principal of or interest on any particular
Notes. 


        When
an Indemnified Party incurs expenses or renders services after an Event of Default specified in Section 6.01(6) occurs, such expenses (including
the reasonable fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any Bankruptcy Code. 



        The
obligations of the Company under this Section 7.07 shall survive the satisfaction and discharge of this Indenture, termination of the Collateral
Agreements or the Intercreditor Agreement or the resignation or removal of the Trustee. 


        The
Trustee shall comply with the provisions of TIA Section 312(b)(2) to the extent applicable. 


        SECTION
7.08. Replacement of Trustee. 


        The
Trustee may resign upon 45 days' prior written notice to the Company. The Holders of a majority in aggregate principal amount at maturity of the outstanding Notes may remove
the Trustee by so notifying the Company and the Trustee in writing and may appoint a successor Trustee. The Company, by a Board Resolution, may remove the Trustee if: 



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


        (2)
the Trustee is adjudged bankrupt or insolvent; 


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



56





 




        (4)
the Trustee becomes incapable of acting with respect to the Notes. 




        If
the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall notify each Holder in writing of such event and shall promptly
appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount at maturity of the outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company. 



        A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company and thereupon the resignation or removal of the retiring Trustee
shall become effective
and such successor Trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, trusts, duties and obligations of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by such Trustee so ceasing to act hereunder subject nevertheless to its Lien, if any, provided for in
Section 7.07. Upon request of the Company or the successor Trustee, such retiring Trustee shall at the expense of the Company and upon payment of the charges of the
Trustee then unpaid, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder. Upon request of any such successor Trustee or the Holders of a majority in aggregate principal amount at maturity
of the outstanding Notes, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts.
Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided in
Section 7.07, 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. 


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


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



        The
Company shall give notice of any resignation and any removal of the Trustee and each appointment of a successor Trustee to all Holders in writing. Each notice shall include the name
of the successor Trustee and the address of its Corporate Trust Office. 


        Notwithstanding
any resignation or replacement of the Trustee pursuant to this Section 7.08, the Company's obligations under
Section 7.07 shall continue for the benefit of the retiring Trustee. 


        SECTION
7.09. Successor Trustee by Merger, Etc. 


        If
the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another Person, the resulting, surviving or
transferee Person without any further act shall, if such resulting, surviving or transferee Person is otherwise eligible hereunder, be the successor Trustee;  provided, however, that such Person shall be otherwise qualified and eligible under this
Article Seven. 


        In
case any Notes have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes. 


57







  





        SECTION 7.10. Eligibility; Disqualification. 


        (a)
This Indenture shall always have a Trustee who satisfies the requirements of TIA Sections 310(a)(1), (2), (3) and (5). The Trustee (or, in the case of a Trustee that is an
Affiliate of a bank holding company system, the related bank holding company) shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report
of condition. In addition, if the Trustee is a corporation included in a bank holding company system, the Trustee, independently of such bank holding company, shall meet the capital requirements of
TIA Section 310(a)(2). The Trustee shall comply with TIA Section 310(b); provided,  however, that there shall be excluded from the operation of
TIA Section 310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(1) are met. The provisions
of TIA Section 310 shall apply to the Company, as obligor of the Notes. 


        (b)
If the Trustee has or acquires a conflicting interest within the meaning of the TIA, the Trustee shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the TIA and this Indenture. 


        SECTION
7.11. Preferential Collection of Claims Against Company. 


        The
Trustee shall comply with 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. 


        SECTION
7.12. Trustee as Collateral Agent and Paying Agent. 


        References
to the Trustee in Sections 7.01(f), 7.02, 7.03, 7.04, and
7.07 shall include the Trustee in its role as Collateral Agent and Paying Agent. 


        SECTION
7.13. Co-Trustees, Co-Collateral Agent and Separate Trustees, Collateral Agent. 


        (a)
At any time or times, for the purpose of meeting the legal requirements of any jurisdiction in which any of the Collateral may at the time be located, the Company and the Trustee
shall have the power to appoint, and, upon the written request of the Trustee or of the Holders of at least 25% in principal amount at maturity of the Notes outstanding, the Company shall for such
purpose join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to appoint, one or more Persons approved by the Trustee either to act as
co-trustee, jointly with the Trustee, of all or any part of the Collateral, to act as co-collateral agent, jointly with the Collateral Agent, or to act as separate trustees or
Collateral Agent of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable, subject to the other provisions of this Section 7.13. As of the Issue Date, the Company hereby
appoints The Bank of New York Trust Company, N.A. as the initial Collateral Agent and The Bank of New York Trust Company, N.A. hereby accepts such appointment and agrees to act and serve in such
capacity. If the Company does not join in such appointment within fifteen (15) days after the receipt by it of a request so to do, or in case an Event of Default has occurred and is continuing,
the Trustee alone shall have the power to make such appointment. 


        (b)
Should any written instrument from the Company be required by any co-trustee, co-Collateral Agent or separate trustee or separate Collateral Agent so
appointed for more fully confirming to such co-trustee or separate trustee such property, title, right or power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Company. 


58





 



        (c)
Every co-trustee, co-collateral agent or separate trustee or separate collateral agent shall, to the extent permitted by law, but to such extent only, be
appointed subject to the following terms, namely: 



        (i)
The Notes shall be authenticated and delivered, and all rights, powers, duties and obligations hereunder in respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised solely, by the Trustee. 



        (ii)
The rights, powers, duties and obligations hereby conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee or by the
Trustee and such co-trustee or separate trustee, or by the Collateral Agent and such co-Collateral Agent or separate Collateral Agent, jointly as shall be provided in the
instrument appointing such co-trustee or separate trustee or co-Collateral Agent or separate Collateral Agent, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Trustee shall be incompetent or unqualified to perform such act, in which event such rights, powers, duties and obligations shall be exercised and
performed by such
co-trustee or separate trustee, Collateral Agent or co-Collateral Agent or separate Collateral Agent. 



        (iii)
The Trustee at any time, by an instrument in writing executed by it, with the concurrence of the Company evidenced by a Board Resolution, may accept the resignation of or remove
any co-trustee or separate trustee appointed under this Section 7.13, and, in case an Event of Default has occurred and is continuing, the Trustee shall
have power to accept the resignation of, or remove, any such co-trustee, co-collateral agent, separate trustee or separate collateral agent without the concurrence of the
Company. Upon the written request of the Trustee, the Company shall join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee, co-collateral agent, separate trustee or separate collateral agent so resigned or removed may be appointed in the
manner provided in this Section 7.13. 


        (iv)
No co-trustee, co-collateral agent, separate trustee or separate collateral agent hereunder shall be personally liable by reason of any act or omission of
the Trustee or the Collateral Agent, or any, other such trustee or collateral agent hereunder. 


        (v)
Any act of Holders delivered to the Trustee shall be deemed to have been delivered to each such co-trustee or separate trustee and any act of Holders delivered to the
Collateral Agent shall be deemed to have been delivered to each such co-collateral agent or separate collateral agent. 



 
 

ARTICLE EIGHT
  
    SATISFACTION AND DISCHARGE OF INDENTURE    
    


        SECTION 8.01. Legal Defeasance and Covenant Defeasance. 


        (a)
The Company may, at its option and at any time, elect to have either paragraph (b) or paragraph (c) below be
applied to the outstanding Notes upon compliance with the applicable conditions set forth in paragraph (d). 



        (b)
Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (b), the Company
and the Guarantors shall be deemed to have been released and discharged from their obligations with respect to the outstanding Notes on the date the applicable conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in
(i) and (ii) below, and to 


59





 



have
satisfied all their other obligations under such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully
set forth in such paragraph payments in respect of the principal of, and premium, if any, interest and Additional Interest, if any, on such Notes when such payments are due, (ii) obligations
listed in Section 8.03, subject to compliance with this Section 8.01 and (iii) the rights, powers, trusts, duties and
immunities of the Trustee and the Company's obligations in connection therewith. The Company may exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) below with respect to the Notes. 


        (c)
Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (c), the Company
and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Article Five, Sections
4.05 and 4.08, and Sections 4.10 through 4.23 with respect to the outstanding Notes on and after
the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the
purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for
all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01(3) or 6.01(4), but, except as specified above, the remainder
of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company's exercise under paragraph (a) hereof of the option applicable to this
paragraph (c), subject to the satisfaction of the conditions set forth in Section 8.03, Sections
6.01(3), 6.01(4), 6.01(5), 6.01(8), 6.01(9) and
6.01(10) shall not constitute Events of Default. 


        (d)
The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the
outstanding Notes: 



        (1)
The Company shall have irrevocably deposited in trust with the Trustee, in trust, for the benefit of the Holders, U.S. Legal Tender or non-callable U.S. Government
Obligations or a combination thereof, in such amounts and at such times as are sufficient, in the opinion of a nationally-recognized firm of independent public accountants, to pay the principal of,
and premium, if any,
interest and Additional Interest, if any, on the outstanding Notes on the stated dates for payment or redemption, as the case may be. 



        (2)
In the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that: 



        (a)
the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or 


        (b)
since the date of this Indenture, there has been a change in the applicable federal income tax law, 




in
either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders 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; 



60





 

        (3)
In the case of Covenant Defeasance, 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 will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; 


        (4)
No Default or Event of Default shall have occurred and be continuing on the date of such deposit pursuant to clause (1) of this paragraph (except such Default or Event of
Default resulting from the failure to comply with Section 4.12 as a result of the borrowing of funds required to effect such deposit) or insofar as Defaults or
Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of such deposit; 



        (5)
Such Legal Defeasance or Covenant Defeasance shall not result in a breach of, or constitute a default under this Indenture or any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; 


        (6)
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 or others; 



        (7)
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; and 


        (8)
The Company shall have delivered to the Trustee an Opinion of Counsel (subject to customary qualifications and exclusions) to the effect that the trust resulting from the deposit
does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940. 




Notwithstanding
the foregoing, the Opinion of Counsel required by Section 8.01(d)(4)(i) above with respect to a Legal Defeasance need not be delivered if all Notes
not theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) shall become due and payable on the maturity date within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. 


        In
the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably satisfactory to the Trustee, at the time of
such deposit, for the giving of the notice of such redemption or redemptions by the Trustee in the name and at the expense of the Company. 


        SECTION
8.02. Satisfaction and Discharge. 


        In
addition to the Company's rights under Section 8.01, the Company may terminate all of its obligations under this Indenture (subject to
Section 8.03) and the Collateral Agreements, when: 



        (1)
either: 


        First:
all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid as provided in
Section 2.07 and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust) have been delivered to the Trustee for cancellation; or 



61





 




        Second:
all Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) shall become due and payable at their stated maturity
within one year or (iii) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee, and the Company has irrevocably deposited or caused to be
deposited with the Trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, and
premium, if any, interest and Additional Interest, if any, on the Notes to the date of deposit together with irrevocable instructions from the Company directing the Trustee to apply such funds to the
payment thereof at maturity or redemption, as the case may be; 


        (2)
all other sums payable under this Indenture and the Collateral Agreements by the Company have been paid; and 


        (3)
the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction
and discharge of this Indenture have been complied with. 




        SECTION
8.03. Survival of Certain Obligations. 


        Notwithstanding
the satisfaction and discharge of this Indenture and of the Notes referred to in Section 8.01 or 8.02,
the respective obligations of the Company and the Trustee under Sections 2.02, 2.03, 2.04,
2.05, 2.06, 2.07, 2.10, 2.13,
4.01, 4.02 and 6.07, Article Seven and Sections 8.05,
8.06 and 8.07 shall survive until the Notes are no longer outstanding, and thereafter the obligations of the Company and the Trustee under
Sections 7.07, 8.05, 8.06 and 8.07 shall survive. 


        SECTION
8.04. Acknowledgment of Discharge by Trustee. 


        Subject
to Section 8.07, after (i) the conditions of Section 8.01 or 8.02 have
been satisfied, (ii) the Company has paid or caused to be paid all other sums payable hereunder by the Company and (iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating
that all conditions precedent referred to in clause (i) above relating to the satisfaction and discharge of this Indenture have been complied with, the Trustee upon written request shall
acknowledge in writing the discharge of the Company's obligations under this Indenture except for those surviving obligations specified in Section 8.03. 


        SECTION
8.05. Application of Trust Moneys. 


        The
Trustee shall hold any U.S. Legal Tender or U.S. Government Obligations deposited with it in the irrevocable trust established pursuant to
Section 8.01. The Trustee shall apply the deposited U.S. Legal Tender or the U.S. Government obligations, together with earnings thereon, through the Paying Agent,
in accordance with this Indenture and the terms of the irrevocable trust agreement established pursuant to Section 8.01, to the payment of principal of, premium, if
any, and interest (including Additional Interest, if any) on the Notes. Anything in this Article Eight to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon the Company's request any U.S. Legal Tender or U.S. Government Obligations held by it as provided in Section 8.01(d) which, in
the opinion of a nationally-recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. 



        SECTION
8.06. Repayment to the Company; Unclaimed Money. 


        Subject
to Sections 7.07, 8.01 and 8.02, the Trustee and the Paying Agent shall promptly pay to the
Company upon written request from the Company any excess U.S. Legal Tender or U.S. Government Obligations held by them at any time. The Trustee and the Paying Agent shall pay to the Company, upon
receipt by the Trustee or the Paying Agent, as the case may be, of a written request from the Company any money held by it for the payment of principal, premium, if any, or interest that remains 


62





 



unclaimed
for two years after payment to the Holders is required, without interest thereon; provided,  however, that the Trustee and the Paying Agent before being
required to make any payment may, but need not, at the expense of the Company cause to be
published once in a newspaper of general circulation in The City of New York or mail to each Holder entitled to such money notice that such money remains unclaimed and that after a date specified
therein, which shall be at least thirty (30) days from the date of such publication or mailing, any unclaimed balance of such money then remaining shall be repaid to the Company, without
interest thereon. After payment to the Company, Holders entitled to money must look solely to the Company for payment as general creditors unless an applicable abandoned property law designated
another Person, and all liability of the Trustee or Paying Agent with respect to such money shall thereupon cease. 


        SECTION
8.07. Reinstatement. 


        If
the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or U.S. Government Obligations in accordance with Section 8.01 or
8.02 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.01
or 8.02 until such time as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance with
Section 8.01 or 8.02; provided,  however, that if the Company has made any payment of premium, if any, or interest on or principal of any
Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent. 



        SECTION
8.08. Indemnity for Government Obligations. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section 8.01 or Section 8.02 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. 


 
 

ARTICLE NINE
  
    AMENDMENTS, SUPPLEMENTS AND WAIVERS    
    


        SECTION 9.01. Without Consent of Holders. 



        From
time to time, the Company, the Guarantors, the Trustee and, if such amendment, modification, waiver or supplement relates to any Collateral Agreement, the Collateral Agent, without
the consent of the Holders, may amend, modify, waive or supplement provisions of this Indenture, the Notes, the Guarantees, the Registration Rights Agreement the Intercreditor Agreement or the
Collateral Agreements: 



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


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



        (3)
to provide for the assumption of the Company's or a Guarantor's obligations to Holders in the case of a merger or consolidation involving the Company or such Guarantor or sale of all
or substantially all
of the assets of the Company or such Guarantor or the release of a Guarantor to the extent permitted under this Indenture; 


        (4)
to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights of any such Holder under this Indenture, the
Notes, the Guarantees, the Registration Rights Agreement or the Collateral Agreements; 



63







  




        (5)
to comply with requirements of the Commission in order to effect or maintain the qualification of this Indenture under the TIA; 


        (6)
to allow any Subsidiary or any other Person to guarantee the Notes; 



        (7)
if necessary, in connection with any addition or release of Collateral permitted under the terms of the Indenture, the Intercreditor Agreement or the Collateral Agreements; 


        (8)
to release a Guarantor as permitted under this Indenture and the related Guarantee; 


        (9)
to provide for the issuance of Additional Notes in accordance with the terms hereof, to the extent Indebtedness in an aggregate principal amount equal to the aggregate principal
amount of such Additional Notes to be issued could otherwise be incurred pursuant to this Indenture, without giving effect to such amendment, modification, waiver or supplement; 



        (10)
to conform the text of the Indenture, the Notes, the Guarantees or the Collateral Agreements to any provision of the "Description of Notes" in the Offering Circular relating to the
Notes dated March 10, 2004, to the extent that such provision was intended to be a verbatim recitation of a provision of the Indenture, the Notes, the Guarantees or the Collateral Agreements;
or 


        (11)
to make any amendment to the provisions of this Indenture relating to the form, authentication, transfer and legending of the Notes; provided, however, that (a) compliance
with this Indenture as so amended would not result in the Notes being transferred in violation of the Securities Act or any other applicable securities law and (b) such amendment does not
materially affect the rights of Holders to transfer the Notes, 




and
unless such amendment, modification, waiver or supplement is specifically required hereunder, so long as such amendment, modification, waiver or supplement does not, in the opinion of the Trustee
and, if such amendment, modification, waiver or supplement relates to any Collateral Agreement or the Intercreditor Agreement, the Collateral Agent, adversely affect the rights of any of the Holders
in any material respect. 


        Notwithstanding
the foregoing, in formulating its opinion in regards to Section 9.01 the Trustee or the Collateral Agent, as applicable, is entitled
to rely on such evidence as it deems appropriate, including, without limitation, solely on an Opinion of Counsel. 


        SECTION
9.02. With Consent of Holders. 


        Subject
to Section 6.07, the Company, the Guarantors and the Trustee or the Collateral Agent, as applicable, together, with the written consent of the
Holder or Holders of at least a majority in aggregate principal amount at maturity of the outstanding Notes (subject to Section 2.09), may amend or supplement this
Indenture, the Notes, any Collateral Agreement, the Intercreditor Agreement or the Guarantees without notice to any other Holders. Subject to Section 6.07 and
Section 2.09, the Holder or Holders of a majority in aggregate principal amount at maturity of the outstanding Notes may waive compliance by the Company with any
provision of this Indenture, any Collateral Agreement or the Notes without notice to any other Holder. However, no amendment, supplement or waiver, including a waiver pursuant to
Section 6.04, shall without the consent of each Holder of each Note affected thereby: 



        (1)
reduce the principal amount at maturity of Notes whose Holders must consent to an amendment, supplement or waiver of any provision of this Indenture or the Notes; 



        (2)
reduce the rate of or change or have the effect of changing the time for payment of interest, including defaulted interest, or Additional Interest on any Notes; 



64





 




        (3)
reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption or reduce the
redemption price therefor; 


        (4)
make any Notes payable in money other than that stated in the Notes; 



        (5)
make any change in provisions of this Indenture protecting the right of each Holder to receive payment of principal of, premium, if any, interest and Additional Interest, if any, on
such Note on or after the due date thereof or to bring suit to enforce such payment, or permitting holders of a majority in principal amount at maturity of Notes to waive Defaults or Events of
Default; 


        (6)
amend, change or modify in any material respect the obligation of the Company to make and consummate a Change of Control Offer after the occurrence of a Change of Control or make and
consummate a Net Proceeds Offer with respect to any Asset Sale that has been consummated or, after such Change of Control has occurred or such Asset Sale has been consummated, modify any of the
provisions or definitions with respect thereto; 


        (7)
subordinate the Notes in right of payment to any other Indebtedness of the Company or any Guarantor; 


        (8)
release any Guarantor from any of its obligations under its Guarantee or this Indenture otherwise than in accordance with the terms of this Indenture; or 


        (9)
make any change to Section 9.01 or this Section 9.02. 




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


        After
an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such
supplemental indenture. 


        SECTION
9.03. Compliance with TIA. 


        Every
amendment, waiver or supplement of this Indenture, the Notes, the Collateral Agreements, the Intercreditor Agreement or the Guarantees shall comply with the TIA as then in effect. 


        SECTION
9.04. Revocation and Effect of Consents. 


        Until
an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note
that evidences the same debt as the consenting Holder's Note, even if notation of the consent is not made on any Note. Subject to the following paragraph, any such Holder or subsequent Holder may
revoke the consent as to such Holder's Note or portion of such Note by written notice to the Trustee and the
Company received before the date on which the Trustee, and if such amendment, waiver or supplement relates to any Collateral Agreement or the Intercreditor Agreement, the Collateral Agent, receives an
Officers' Certificate certifying that the Holders of the requisite principal amount at maturity of Notes have consented (and not theretofore revoked such consent) to the amendment, supplement or
waiver. 


        The
Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver, which record date
shall be either (i) at least thirty (30) days prior to the first solicitation of such consent or (ii) the date of the most recent list furnished to the Trustee under
Section 2.05. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were 


65





 



Holders
at such record date (or their duly designated proxies), and only those Persons, shall be entitled to revoke any consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more than ninety (90) days after such record date. 



        After
an amendment, supplement or waiver becomes effective, it shall bind every Holder unless it makes a change described in any of clauses (1) through (9) of
Section 9.02, in which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and every subsequent Holder of a Note
or portion of a Note that evidences the same debt as the consenting Holder's Note; provided that any such waiver shall not impair or affect the right of
any Holder to receive payment of principal of, premium, if any, and interest on a Note, on or after the respective due dates expressed in such Note, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder. 


        SECTION
9.05. Notation on or Exchange of Notes. 


        If
an amendment, supplement or waiver changes the terms of a Note, the Trustee may require the Holder of the Note to deliver the Note to the Trustee. The Trustee at the written direction
of the Company may place an appropriate notation on the Note about the changed terms and return it to the Holder and the Trustee may place an appropriate notation on any Note thereafter authenticated.
Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to
make an appropriate notation, or issue a new Note, shall not affect the validity and effect of such amendment, supplement or waiver. Any such notation or exchange shall be made at the sole cost and
expense of the Company. Failure to make the appropriate notation or issue a new Note shall not effect the validity and effect of such amendment, supplement or waiver. 


        SECTION
9.06. Trustee to Sign Amendments, Etc. 


        The
Trustee or the Collateral Agent, as applicable, shall execute any amendment, supplement or waiver authorized pursuant to this Article Nine;  provided that the Trustee or the Collateral Agent, as
applicable, may, but shall not be obligated to, execute any such amendment, supplement or waiver
which affects the rights, duties or immunities of the Trustee or the Collateral Agent, as applicable, under this Indenture, any Collateral Agreement or the Intercreditor Agreement. The Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers' Certificate each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this Indenture. Such Opinion of Counsel shall not be an expense of the Trustee and shall be paid for
by the Company. 


        SECTION
9.07. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article Nine shall conform to the requirements of
the TIA as then in effect. 


 
 

ARTICLE TEN
  
    GUARANTEE    
    


        SECTION 10.01. Guarantee. 


        Each
Guarantor hereby fully, irrevocably and unconditionally, jointly and severally, unconditionally and irrevocably guarantees (such guarantee to be referred to herein as the
"Guarantee"), to each of the Holders and to the Trustee and the Collateral Agent and their respective successors and assigns that (i) the principal of, premium, if
any and interest on the Notes shall be promptly paid in full when due, subject to any applicable grace period, whether upon redemption pursuant to the terms of the Notes, by acceleration or otherwise,
and interest on the overdue principal, if any, and interest on any interest, if any, to the extent lawful, of the Notes and all other obligations of the Company to the 


66





 



Holders,
the Trustee and the Collateral Agent hereunder, thereunder or under any Collateral Agreement or the Intercreditor Agreement shall be promptly paid in full or performed, all in accordance with
the terms hereof, thereof and of the Collateral Agreements and Intercreditor Agreement; and (ii) in case of any extension of time of payment or renewal of any of the Notes or of any such other
obligations, the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity,
by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in
Section 10.03. The Guarantee of each Guarantor shall rank senior in right of payment to all existing and future subordinated Indebtedness of such Guarantor and
equal in right of payment with all other existing and future senior obligations of such Guarantor, including borrowings or guarantees of borrowings under the Credit Agreement. Each Guarantor hereby
agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes, this Indenture, any Collateral Agreement or the Intercreditor
Agreement, the absence of any action to enforce the same, any waiver or consent by any of the Holders with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery
of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes, this Indenture
and in this Guarantee. Each Guarantor may consolidate with or merge into or sell its assets to the Company or another Guarantor without limitation in accordance with Sections
5.01 and 4.16. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by the Company or any Guarantor to the Trustee, the Collateral Agent or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between each Guarantor, on the one hand, and the Holders, the
Collateral Agent and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the
purposes of this Guarantee notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any
acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this
Guarantee. 


        SECTION
10.02. Release of a Guarantor. 


        A
Guarantor will be released from its Guarantee and the Collateral Agreements (and may subsequently dissolve) without any action required on the part of the Trustee or any Holder: 



        (1)
if (a) all of the Capital Stock issued by such Guarantor or all or substantially all of the assets of such Guarantor are sold or otherwise disposed of (including by way of
merger or consolidation) to a Person other than the Parent or any of its Domestic Restricted Subsidiaries or (b) such Guarantor ceases to be a Restricted Subsidiary, and the Parent otherwise
complies, to the extent applicable, with the covenant described below under Section 4.16, or 


        (2)
if the Parent designates such Guarantor as an Unrestricted Subsidiary in accordance with the definition thereof, or 


        (3)
if the Company exercises its Legal Defeasance option or its Covenant Defeasance option as described in Section 8.01, or 



67







  




        (4)
upon satisfaction and discharge of this Indenture or payment in full of the principal of, premium, if any, accrued and unpaid interest and Additional Interest, if any, on the Notes
and all other Obligations that are then due and payable. 




        The
Trustee shall promptly deliver an appropriate instrument evidencing such release upon receipt of a request by the Company accompanied by an Officers' Certificate certifying as to the
compliance with this Section 10.02. Any Guarantor not so released remains liable for the full amount of its Guarantee as provided in this Article
Ten. 


        SECTION
10.03. Limitation of Guarantor's Liability. 


        Each
Guarantor and, by its acceptance hereof, each of the Holders hereby confirms that it is the intention of all such parties that the guarantee by such Guarantor pursuant to its
Guarantee not constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
state law. To effectuate the foregoing intention, the Holders and such Guarantor hereby irrevocably agree that the obligations of such Guarantor under the Guarantee shall be limited to the maximum
amount as shall, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to Section 10.05, result in the obligations of such Guarantor under
the Guarantee not constituting such fraudulent transfer or conveyance. The net worth of any Guarantor for such purpose shall include any claim of such Guarantor against the Company for reimbursement
and any claim against any other Guarantor for contribution. 


        SECTION
10.04. Guarantors May Consolidate, etc., on Certain Terms. 


        Each
Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying
with Section 4.16) will not, and the Company will not cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or
any other Guarantor unless: 



        (1)
the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is
a corporation
organized and existing under the laws of the United States or any State thereof or the District of Columbia; 


        (2)
such entity assumes by (i) supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, all of the obligations
of the Guarantor under the Guarantee and the performance of every covenant of the Guarantee, this Indenture and the Registration Rights Agreement (ii) by amendment, supplement or other
instrument (in form and substance satisfactory to the Trustee and the Collateral Agent) executed and delivered to the Trustee and the Collateral Agent, all obligations of the Guarantor under the
Collateral Agreements and in connection therewith shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as may be required by applicable law to
perfect or continue the perfection of the Lien created under the Collateral Agreements on the Collateral owned by or transferred to the surviving entity; and 



        (3)
immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. 




        Notwithstanding
the foregoing, any merger or consolidation of (i) a Guarantor with and into the Company (with the Company being the surviving entity) or another Guarantor or
(ii) a Guarantor or the Company with an Affiliate organized solely for the purpose of reincorporating such Guarantor or the Company in another jurisdiction in the United States or any state
thereof or the District of 


68





 

Columbia
or changing the legal form of such Guarantor or the Company need only comply with (A) clause (4) of Section 5.01 and (B) in the case
of a merger or consolidation involving (x) the Company as described in clause (ii) above, clause 1(b)(y) of the first paragraph of Section 5.01
and (y) in the case of a Guarantor as described in clause (ii) above, clause (2) of this Section 10.04. 


        SECTION
10.05. Contribution. 


        In
order to provide for just and equitable contribution among the Guarantors, the Guarantors agree, inter se, that each Guarantor that makes a payment or distribution under a Guarantee
shall be entitled to a pro rata contribution from each other Guarantor hereunder based on the net assets of each other Guarantor. The preceding sentence shall in no way
affect the rights of the Holders of Notes to the benefits of this Indenture, the Notes or the Guarantees. 


        SECTION
10.06. Waiver of Subrogation. 


        Each
Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. 


        SECTION
10.07. Evidence of Guarantee. 


        To
evidence their guarantees to the Holders set forth in this Article Ten, each of the Guarantors hereby agrees to execute the notation of Guarantee in
substantially the form included in the Notes attached as Exhibits A and B. Each such notation of Guarantee shall be signed on behalf of each
Guarantor by an Officer or an assistant Secretary. An Officer (who shall, in each case, have been duly authorized by all requisite corporate actions) of the Guarantors shall execute the Guarantees by
manual or facsimile signature. 


        If
an Officer whose signature is on a Note was an Officer at the time of such execution but no longer holds that office or position at the time the Trustee authenticates such Note, such
Note shall nevertheless be valid. 


        Each
Guarantor hereby agrees that its Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee. 


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


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


        SECTION
10.08. Waiver of Stay, Extension or Usury Laws. 


        Each
Guarantor covenants to the extent permitted by law that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law or any usury law or other law that would prohibit or forgive such Guarantor from performing its Guarantee as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Guarantee; and each Guarantor hereby expressly waives to the extent permitted by law all benefit or advantage of any such law, and
covenants that it shall not 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 had
been enacted. 


69





 
 
 

ARTICLE ELEVEN
  
    MISCELLANEOUS    
    


        SECTION 11.01. Trust Indenture Act Controls. 



        If
any provision of this Indenture limits, qualifies, or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall
control. Any provision of the TIA which is required to be included in a qualified Indenture, but not expressly included herein, shall be deemed to be included by this reference. 


        SECTION
11.02. Notices. 


        Any
notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telex, by telecopier, by overnight
courier or registered or certified mail, postage prepaid, return receipt requested, addressed as follows: 



if
to the Company: 


Eschelon
Operating Company

730 Second Avenue

Minneapolis, Minnesota 55402

Attention: J. Jeffrey Oxley

Facsimile Number: 612-436-6792 


if
to the Trustee: 


The
Bank of New York Trust Company, N.A.

Plaza of the Americas

Corporate Trust Division

600 North Pearl Street, suite 420

Dallas, Texas 75201

Attn: Paul Giordano

Facsimile Number: 214-880-8241 



if
to the Collateral Agent: 


The
Bank of New York Trust Company, N.A.

Plaza of the Americas

Corporate Trust Division

600 North Pearl Street, suite 420

Dallas, Texas 75201

Attn: Paul Giordano

Facsimile Number: 214-880-8241 




        Each
of the Company and the Trustee by written notice to each other may designate additional or different addresses for notices to such Person. Any notice or communication to the Company
or the Trustee shall be deemed to have been given or made as of the date so delivered if personally delivered; when answered back, if telexed; when receipt is acknowledged, if faxed; one
(1) Business Day after mailing if sent by overnight courier; and five (5) calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of
change of address or a notice sent by mail to the Trustee shall not be deemed to have been given until actually received by the addressee). 


70





 

        Any
notice or communication mailed to a Holder shall be mailed to such Holder by first class mail or other equivalent means at such Holder's address as it appears on the registration
books of the Registrar and shall be sufficiently given to such Holder if so mailed within the time prescribed. 



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


        SECTION
11.03. Communications 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, any Collateral Agreement, any Guarantee or the Notes.
The Company, the Trustee, the Collateral Agent, the Registrar and any other Person shall have the protection of TIA Section 312(c). 


        SECTION
11.04. Certificate and Opinion as to Conditions Precedent. 


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



        (1)
an Officers' Certificate, in form and substance reasonably satisfactory to the Trustee, stating that, in the opinion of the signers, all conditions precedent to be performed by the
Company or the applicable Guarantor (as the case may be), if any, provided for in this Indenture or any Collateral Agreement relating to the proposed action have been complied with; and 


        (2)
an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent to be performed by the Company or the applicable Guarantor (as the case may be), if
any, provided for in this Indenture or any Collateral Agreement relating to the proposed action have been complied with. 




        In
any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one
or more other Persons as to other matters and any such Person may certify or give an opinion as to such matters in one or several documents. 


        Any
certificate or opinion of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion, or representation by, counsel, unless such
Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel or representation by counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous. 


        Where
any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they
may, but need not, be consolidated and form one instrument. 


71





 



        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 or any Collateral Agreement, other than the Officers' Certificate
required by Section 4.06, 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 has made such examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and 


        (4)
a statement as to whether or not, in the opinion of each such Person, such condition or covenant has been complied with. 




        SECTION
11.06. Rules by Trustee, Paying Agent, Registrar. 


        The
Trustee may make reasonable rules in accordance with the Trustee's customary practices for action by or at a meeting of Holders. The Paying Agent or Registrar may make reasonable
rules for its functions. 


        SECTION
11.07. Legal Holidays. 


        A
"Legal Holiday" used with respect to a particular place of payment is a Saturday, a Sunday or a day on which banking institutions in New York, New York and
Dallas, Texas at such place of payment are not required to be open. If a payment date is a Legal Holiday at such place, payment may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. 


        SECTION
11.08. Governing Law. 


        THIS
INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE. 


        SECTION
11.09. No Adverse Interpretation of Other Agreements. 


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


        SECTION
11.10. No Recourse Against Others. 


        A
past, present or future director, officer, employee, stockholder or incorporator, as such, of the Company, a Guarantor or the Trustee shall not have any liability for any obligations
of the Company or the Guarantors under the Notes, the Guarantees, the Collateral Agreements or this Indenture or for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder, by accepting a Note, waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes. 


72





 



        SECTION
11.11. Successors. 


        All
agreements of the Company and the Guarantors in this Indenture, the Notes, and the Guarantees shall bind their successors. All agreements of the Trustee and the Collateral Agent in
this Indenture shall bind their respective successors. 


        SECTION
11.12. Duplicate Originals. 


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


        SECTION
11.13. Severability. 


        In
case any one or more of the provisions in this Indenture, the Notes or in the Guarantees shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law. 


        SECTION
11.14. Waiver of Jury Trial. 


        EACH
OF THE COMPANY, THE GUARANTORS, THE TRUSTEE, THE COLLATERAL AGENT, AND BY ITS ACCEPTANCE THEREOF, EACH HOLDER OF A NOTE, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR IN
CONNECTION WITH THIS INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE. 


 
 

ARTICLE TWELVE
  
    AGREEMENT TO SUBORDINATE
  SECURITY INTERESTS; SECURITY    
    


        SECTION 12.01. Grant of Security Interest. 



        (a)
To secure the due and punctual payment of the principal of, premium, if any, and interest on the Notes and amounts due hereunder and under the Guarantees when and as the same shall
be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, purchase, repurchase, redemption or otherwise, and interest on the overdue principal of, premium, if any, and
interest (to the extent permitted by law), if any, on the Notes and the performance of all other Obligations of the Company and the Guarantors to the Holders, the Collateral Agent or the Trustee under
this Indenture, the Collateral Agreements, the Guarantees and the Notes, the Company and the Guarantors hereby covenant to cause the Collateral Agreements (other than the Intercreditor Agreement) to
be executed and delivered concurrently with this Indenture. Subject to the Intercreditor Agreement, the Collateral Agreements shall provide for the grant by the Company and Guarantors party thereto to
the Collateral Agent security interests in the Collateral. 


        (b)
The Trustee and each Holder, by its acceptance of a Note, consents and agrees to the terms of each Collateral Agreement and the Intercreditor Agreement, as the same may be in effect
or may be amended from time to time in accordance with their respective terms, and authorizes and directs the Collateral Agent to enter into the Collateral Agreements and the Intercreditor Agreement
and to perform its obligations and exercise its rights thereunder in accordance therewith. The Company shall, and shall cause each Guarantor to, do or cause to be done, at its sole cost and expense,
all such actions and things as may be necessary or as may be required by the provisions of the Collateral Agreements to (i) create Liens pursuant to one or more Collateral Agreements on their
respective properties in favor of the Collateral Agent for the benefit of itself, the Trustee and the Holders or (ii) more fully or 


73





 



accurately
describe the property intended to be Collateral or the obligations intended to be secured by the Collateral Agreements. 


        SECTION
12.02. Intercreditor Agreement. 


        This
Indenture and the Collateral Agreements are subject to the terms, limitations and conditions set forth in the Intercreditor Agreement. The Trustee and each Holder of a Note, by its
acceptance thereof, is deemed to have authorized and instructed the Collateral Agent to enter into the Intercreditor Agreement on its behalf. 


        SECTION
12.03. Recording and Opinions. 


        (a)
The Company shall, and shall cause each Guarantor to, at its sole cost and expense, take all such actions as may be required under applicable law to perfect the Liens created by the
Collateral Agreements, including (i) the filing of financing statements and continuation statements relating to the Company or any Domestic Restricted Subsidiary, (ii) the recordation
and filing of Mortgages and fixture filings related thereto and (iii) the delivery of the certificates evidencing Collateral pledged under any Collateral Agreement. 


        (b)
The Company shall furnish to the Trustee and the Collateral Agent (if other than the Trustee), on or within one month of March 15 of each year, commencing March 15,
2005, an Opinion of Counsel either (i) stating that, in the opinion of such counsel, all action necessary to perfect the security interests created by the Collateral Agreements and reciting the
details of such action or referring to prior Opinions of Counsel in which such details are given have been taken or (ii) stating that, in the Opinion of such Counsel, no such action is
necessary to perfect any security interest created under any of the Collateral Agreements. 


        SECTION
12.04. Release of Collateral. 


        (a)
Subject to the Intercreditor Agreement, the Collateral Agent shall not at any time release Collateral from the security interests created by the Collateral Agreements unless such
release is in accordance with the provisions of this Indenture, the Intercreditor Agreement and the applicable Collateral Agreements. 



        (b)
Subject to the Intercreditor Agreement, at any time when an Event of Default shall have occurred and be continuing, no release of Collateral pursuant to the provisions of this
Indenture and the Collateral Agreements shall be effective as against the Holders. 


        (c)
The release of any Collateral from the terms of the Collateral Agreements shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if
and to the extent the Collateral is released pursuant to this Indenture and the Collateral Agreements or pursuant to the Intercreditor Agreement. To the extent applicable, the Company shall cause TIA
Section 314(d) relating to the release of property from the security interests created by this Indenture and the Collateral Agreements to be complied with. Any certificate or opinion required
by TIA Section 314(d) may be
made by an Officer of the Company, except in cases where TIA Section 314(d) requires that such certificate or opinion be made by an independent Person, which Person shall be an independent
engineer, appraiser or other expert selected or approved by the Trustee in the exercise of reasonable care. A Person is "independent" if such Person (a) is in fact independent, (b) does
not have any direct financial interest or any material indirect financial interest in the Company or in any Affiliate of the Company and (c) is not an officer, employee, promoter, underwriter,
trustee, partner or director or person performing similar functions to any of the foregoing for the Company. The Trustee and the Collateral Agent shall be entitled to receive and rely upon a
certificate provided by any such Person confirming that such Person is independent within the foregoing definition. 


        (d)
Notwithstanding any provision to the contrary herein, Collateral comprised of accounts receivable, inventory or (prior to the occurrence and during the continuance of an Event of
Default) 


74





 



the
proceeds of the foregoing shall be subject to release upon sales of such inventory and collection of the proceeds of such accounts receivable in the ordinary course of business. If requested in
writing by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements and to take such other action as the Company may request to
evidence or confirm that the Collateral falling under this Section 12.04 has been released from the Liens of each of the Collateral Agreements. The Collateral Agent
shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Trustee. 


        SECTION
12.05. Specified Releases of Collateral. 


        Subject
to Section 12.04, Collateral may be released from the Lien and security interest created by the Security Documents at any time or from time to
time in accordance with the provisions of the Collateral Agreements, including the Intercreditor Agreement, or as provided hereby. Upon the request of the Company pursuant to an Officers' Certificate
certifying that all conditions precedent hereunder have been met and without the consent of any Holder, the Company and the Guarantors will be entitled to releases of assets included in the Collateral
from the Liens securing the obligations under the Notes and the Guarantees under any one or more of the following circumstances: 



        (1)
to enable the Company (or a Guarantor) to consummate asset dispositions permitted or not prohibited under Section 4.16; 


        (2)
if any Subsidiary that is a Guarantor is released from its Guarantee; or 


        (3)
as required pursuant to the terms of the Intercreditor Agreement. 




        Upon
receipt of such Officers' Certificate and any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Collateral Agent shall execute,
deliver or acknowledge such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Collateral Agreements, including the
Intercreditor Agreement. 


        SECTION
12.06. Release upon Satisfaction or Defeasance of all Outstanding Obligations. 


        The
Liens on, and pledges of, all Collateral will also be terminated and released upon any of (i) payment in full of the principal of, premium, if any, on, accrued and unpaid
interest and Additional Interest, if any, on the Notes and all other Obligations hereunder, the Guarantees and the Collateral Agreements that are due and payable at or prior to the time such
principal, premium, if any, accrued and unpaid interest and Additional Interest, if any, are paid, (ii) a satisfaction and discharge of this Indenture as described above under
Section 8.02 and (iii) the occurrence of a Legal Defeasance or Covenant Defeasance as described above under Section 8.01. 


        SECTION
12.07. Form and Sufficiency of Release. 


        In
the event that the Company or any Guarantor has sold, exchanged, or otherwise disposed of or proposes to sell, exchange or otherwise dispose of any portion of the Collateral that may
be sold, exchanged or otherwise disposed of by the Company or such Guarantor, and the Company or such Guarantor requests the Trustee or the Collateral Agent to furnish a written disclaimer, release or
quit-claim of any interest in such property under this Indenture and the Collateral Agreements, the Collateral Agent and the Trustee, as applicable, shall execute, acknowledge and deliver
to the Company or such Guarantor (in proper form) such an instrument promptly after satisfaction of the conditions set forth herein for delivery of any such release. Notwithstanding the preceding
sentence, all purchasers and grantees of any property or rights purporting to be released herefrom shall be entitled to rely upon any release executed by the Collateral Agent hereunder as sufficient
for the purpose of this Indenture and as constituting a good and valid release of the property therein described from the Lien of this Indenture or of the Collateral Agreements. 


75





 



        SECTION
12.08. Purchaser Protected. 


        No
purchaser or grantee of any property or rights purporting to be released herefrom shall be bound to ascertain the authority of the Trustee or the Collateral Agent to execute the
release or to inquire as
to the existence of any conditions herein prescribed for the exercise of such authority; nor shall any purchaser or grantee of any property or rights permitted by this Indenture to be sold or
otherwise disposed of by the Company be under any obligation to ascertain or inquire into the authority of the Company to make such sale or other disposition. 


        SECTION
12.09. Authorization of Actions to Be Taken by the Collateral Agent Under the Collateral Agreements. 


        Subject
to the provisions of the applicable Collateral Agreements and the Intercreditor Agreement, (a) the Collateral Agent shall execute and deliver the Collateral Agreements and
the Intercreditor Agreement and act in accordance with the terms thereof, (b) the Collateral Agent may, in its sole discretion and without the consent of the Trustee or the Holders, take all
actions it deems necessary or appropriate in order to (i) enforce any of the terms of the Collateral Agreements and (ii) collect and receive any and all amounts payable in respect of the
Obligations of the Company and the Guarantors hereunder and under the Notes, the Guarantees, the Collateral Agreements and the Intercreditor Agreement and (c) the Collateral Agent shall have
power to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any act that may be unlawful or in violation of the Collateral
Agreements or this Indenture, and suits and proceedings as the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Trustee and the Holders in the
Collateral (including the power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may
be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest thereunder or be prejudicial to the interests of
the Holders, the Trustee or the Collateral Agent). Notwithstanding the foregoing, the Collateral Agent may, at the expense of the Company, request the direction of the Holders with respect to any such
actions and upon receipt of the written consent of the Holders of at least a majority in aggregate principal amount of the outstanding Notes, shall take such actions; provided
that all actions so taken shall, at all times, be in conformity with the requirements of the Intercreditor Agreement. 


        SECTION
12.10. Authorization of Receipt of Funds by the Collateral Agent Under the Collateral Agreements. 



        The
Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Collateral Agreements and the Intercreditor Agreement
to the extent permitted under the Intercreditor Agreement, for turnover to the Trustee to make further distributions of such funds to itself, the Collateral Agent and the Holders in accordance with
the provisions of Section 6.11 and the other provisions of this Indenture. 


76







 
 

SIGNATURES    



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



	 	 	ESCHELON OPERATING COMPANY
	

 	
 	

By:	

/s/  RICHARD A. SMITH      
 Name: Richard A. Smith

Title: President
	

 	
 	
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
 as Trustee and Collateral Agent
	

 	
 	

By:	

/s/  PATRICK T. GIORDANO      
 Name: Patrick T. Giordano

Title: Vice President
	

 	
 	
GUARANTORS:
 
	

 	
 	

ESCHELON TELECOM, INC.
	

 	
 	

By:	

/s/  RICHARD A. SMITH      
 Name: Richard A. Smith

Title: President
	

 	
 	
ESCHELON TELECOM OF MINNESOTA, INC.
	

 	
 	

By:	

/s/  RICHARD A. SMITH      
 Name: Richard A. Smith

Title: President
	

 	
 	
ESCHELON TELECOM OF WASHINGTON, INC.
	

 	
 	

By:	

/s/  RICHARD A. SMITH      
 Name: Richard A. Smith

Title: President
	

 	
 	
ESCHELON TELECOM OF COLORADO, INC.
	

 	
 	

By:	

/s/  RICHARD A. SMITH      
 Name: Richard A. Smith

Title: President
	

 	
 	
ESCHELON TELECOM OF NEVADA, INC.
	

 	
 	

By:	

/s/  RICHARD A. SMITH      
 Name: Richard A. Smith

Title: President
	 	 	 	 








	

 	
 	
ESCHELON TELECOM OF UTAH, INC.
	

 	
 	

By:	

/s/  RICHARD A. SMITH      
 Name: Richard A. Smith

Title: President
	

 	
 	
ESCHELON TELECOM OF OREGON, INC.
	

 	
 	

By:	

/s/  RICHARD A. SMITH      
 Name: Richard A. Smith

Title: President
	

 	
 	
ESCHELON TELECOM OF ARIZONA, INC.
	

 	
 	

By:	

/s/  RICHARD A. SMITH      
 Name: Richard A. Smith

Title: President








  



 
 

EXHIBIT A    
    


[FORM
OF INITIAL NOTE AND ADDITIONAL NOTE] 


THIS
SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. 


THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT
IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER
SUCH SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST
DATE ON WHICH ESCHELON OPERATING COMPANY OR ANY AFFILIATE OF ESCHELON OPERATING COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO ESCHELON OPERATING
COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO ESCHELON OPERATING COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (C), (D) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY APPLICABLE JURISDICTION. IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY SHALL BE COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. 


A-1





 


ESCHELON OPERATING COMPANY

83/8% SENIOR SECOND SECURED NOTES DUE 2010  



	CUSIP No. [    ]	 	 
	No. [    ]	 	$[        ]





        Eschelon
Operating Company, a Minnesota corporation (the "Company," which term includes any successor entity), for value received promises to pay to
                        or registered assigns the principal sum
of                        Dollars (or such principal amount as may be set forth in the records of the Trustee hereinafter referred
to in accordance
with the Indenture) on March 15, 2010, and to pay interest thereon as hereinafter set forth. 


        Interest
Rate: 83/8% 


        Interest
Payment Dates: Interest will be payable semi-annually in cash in arrears on March 15 and September 15 of each year, beginning on September 15,
2004. 


        Record
Dates: March 1 and September 1. 


        Reference
is made to the further provisions of this Note contained on the reverse side of this Note, which will for all purposes have the same effect as if set forth at this place. 



        IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officer. 



	 	 	ESCHELON OPERATING COMPANY
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:





Dated:
March 17, 2004 


A-2





 
TRUSTEE CERTIFICATE OF AUTHENTICATION 


        This
is one of the 83/8% Senior Second Secured Notes due 2010 referred to in the within-mentioned Indenture. 



	 	 	THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
	

Dated: March 17, 2004	
 	

By:	

 
	 	 	 	
 Authorized Signatory




A-3






   (REVERSE OF SECURITY) 


83/8% Senior Second Secured Note due 2010  


        1.    Interest.    Eschelon Operating Company, a Minnesota corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the rate per annum shown above. Interest on the Note will accrue from the most recent date on
which interest has been paid or, if no interest has been paid, from and including the date of issuance. The Company will pay interest semi-annually in arrears on each Interest Payment
Date, commencing September 15, 2004. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. 


        [FOR
REGULATION S TEMPORARY GLOBAL NOTES INSERT: Until this Regulation S Temporary Global Note is exchanged for one or more Regulation S Permanent Global Notes,
the Holder hereof shall not be entitled to receive payments of interest hereon; until so exchanged in full, this Regulation S Temporary Global Note shall in all other respects be entitled to
the same benefits as other Notes under the Indenture.] 


        2.    Method of Payment.    The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are the registered Holders at the close of business on the Record Date immediately preceding the Interest Payment Date even if the Notes are cancelled on registration of
transfer or registration of exchange after such Record Date, and on or before such Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts ("U.S. Legal Tender").
However, the Company may pay principal and interest by check payable in such U.S. Legal Tender. The Company may deliver any such interest payment to the Paying Agent or to a Holder at the Holder's
registered address. 


        3.    Paying Agent and Registrar.    Initially, The Bank of New York Trust Company, N.A.
(the "Trustee") will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar without notice to the Holders. 



        4.    Indenture.    The Notes and the Guarantees were issued under an Indenture, dated as
of March 17, 2004 (the "Indenture"), among the Company, the Guarantors named therein and the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
§§ 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture until such time as the Indenture is qualified under the TIA,
and thereafter as in effect on the date on which the Indenture is qualified under the TIA. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and the TIA for a statement of such terms. The Notes are senior second secured obligations of the Company. Each Holder, by accepting a Note, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended from time to time. 


        5.    Redemption.    


        (b)    Optional Redemption Upon a Change of Control.    The Notes will be redeemable at
the option of the Company, in whole or in part, at any time on or prior to March 15, 2007, if a Change of Control occurs, at a Redemption Price equal to the sum of 112.000% of the Accreted
Value of the Notes as of the Redemption Date, and accrued and unpaid interest, if any, to the Redemption Date (the "Change of Control Redemption Right"). If the Company
elects to exercise the Change of Control Redemption Right, it must mail a notice to each Holder with a copy to the Trustee within 30 days following the Change of Control (or, at its option,
prior to such Change of Control but after the transaction giving rise to such Change of Control is publicly announced). Any such redemption may be conditioned upon the Change of Control occurring if
the notice is mailed prior to the Change of Control. If the Company exercises the Change of Control Redemption Right, it may not make a 


A-4





 



Change
of Control Offer. If the Company makes a Change of Control Offer, it may not exercise the Change of Control Redemption Right. 


        (c)    Optional Redemption After March 15, 2007.    The Notes will be redeemable
at the option of the Company, in whole or in part, at any time on or after March 15, 2007, upon not less than 30 nor more than 60 days' notice, at the following Redemption Prices
(expressed as percentages of the Accreted Value thereof) if redeemed during the twelve-month period commencing on March 15, of the year set forth below, plus, in each case, accrued and unpaid
interest and Additional Interest, if any, thereon to the Redemption Date: 



	Year
 
	 	Percentage

	2007	 	106.000%
	2008	 	103.000%
	2009 and thereafter	 	100.000%






        (d)    Optional Redemption Upon Equity Offerings.    At any time, or from time to time,
on or prior to March 15, 2007, the Company may, at its option, use an amount not to exceed the net cash proceeds of one or more Equity Offerings to redeem up to 35% of the aggregate principal
amount at maturity of the Notes (including Additional Notes, if any) originally issued under the Indenture at a redemption price of 112.000% of the Accreted Value amount thereof, plus accrued and
unpaid interest and Additional Interest thereon, if any, to the Redemption Date. In order to effect the foregoing redemption with the proceeds of an Equity Offering, at least 65% of the original
principal amount at maturity of Notes (including Additional Notes, if any) issued under the Indenture shall remain outstanding immediately after any such redemption and the Company shall make such
redemption not more than 120 days after the consummation of any such Equity Offering. 


        (e)    Mandatory Redemption.    On September 15, 2009, if any Notes are
outstanding, the Company shall redeem 3.5% of each Note (provided that if such redemption results in any unredeemed portion of a Note having a principal
amount that is not a round multiple of $1,000, the Company shall redeem an additional portion of such Note as to reduce the principal amount to a round multiple of $1,000) then outstanding (the
"Mandatory Principal Redemption Amount") at a Redemption Price of 100% of the Accreted Value of the portion of the Notes so redeemed;  provided, that the Company shall simultaneously be required
to redeem an additional portion of each Note to the extent required to prevent such Note
from being treated as an "Applicable High Yield Discount Obligation" within the meaning of Section 163(i)(1) of the Internal Revenue Code of 1986, as amended. 


        6.    Notice of Redemption.    Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at such Holder's registered address with a copy to the Trustee and Paying Agent.
If fewer than all of the Notes are to be redeemed, at any time, selection of Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed, or, if the Notes are not so listed, on a pro rata basis, by lot or by such method as the Trustee deems to be fair and
appropriate; provided, that if any such partial redemption made with the proceeds of an Equity Offering, the Trustee will select the Notes only on a
pro rata basis or on as
nearly a pro rata basis as is practicable (subject to DTC procedures), unless such method is otherwise prohibited. Notes in denominations of $1,000 may be redeemed only in
whole. The Trustee may select for redemption portions (equal to $1,000 or any integral multiple thereof) of the principal amount at maturity of Notes that have denominations larger than $1,000 at
maturity. 


        Except
as set forth in the Indenture, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such redemption
date sufficient to pay such Redemption Price plus accrued and unpaid interest and Additional Interest, if any, the Notes called for redemption will cease to bear interest from and after such
Redemption Date, 


A-5





 



and
the only remaining right of the Holders of such Notes will be to receive payment of the Redemption Price plus accrued and unpaid interest and Additional Interest, if any, as of the Redemption Date
upon surrender to the Paying Agent of the Notes redeemed. 


        7.    Offers to Purchase.    Sections 4.15 and 4.16 of the Indenture provide that upon
the occurrence of a Change of Control and after certain Asset Sales, respectively, and subject to further limitations contained therein, the Company will make an offer to purchase certain amounts of
the Notes in accordance with the procedures set forth in the Indenture. 


        8.    Registration Rights.    Pursuant to the Registration Rights Agreement among the
Company, the Guarantors and the Holders of the Initial Notes, the Company will be obligated to consummate an exchange offer. Upon such exchange offering, the Holders of Notes shall have the right,
subject to compliance with securities laws, to exchange such Notes for 83/8% Senior Second Secured Notes due 2010, which have been registered under the Securities Act (the
"Exchange Notes"), in like principal amount and having terms identical in all material respects to the Initial Notes. The Holders of the Initial Notes shall be entitled to
receive certain additional interest payments in the event such exchange offer is not consummated and upon certain other conditions, all pursuant to and in accordance with the terms of the Registration
Rights Agreement. 


        9.    Denominations; Transfer; Exchange.    The Notes are in registered form, without
coupons, in denominations of $1,000 and integral multiples thereof. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes, fees or similar governmental charges payable in connection therewith as permitted by the Indenture.
The Registrar need not register the transfer of or exchange of any Notes or portions thereof selected for redemption. 


        10.    Persons Deemed Owners.    The registered Holder of a Note shall be treated as the
owner of it for all purposes. 


        11.    Unclaimed Money.    If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agent may pay the money without interest thereon back to the Company. After that, all liability of the Trustee and such Paying Agent with respect to
such money shall cease. 


        12.    Discharge Prior to Redemption or Maturity.    If the Company at any time deposits
with the Trustee U.S. Legal Tender or U.S. Government Obligations sufficient to pay the principal of and interest on the Notes to redemption or stated maturity and complies with the other provisions
of the Indenture relating thereto, the Company will be discharged from certain provisions of the Indenture and the Notes (including certain covenants, but excluding its obligation to pay the principal
of and interest and Additional Interest, if any, on the Notes). 


        13.    Amendment; Supplement; Waiver.    Subject to certain exceptions, the Indenture,
the Notes, the Guarantees, the Collateral Agreements or the Intercreditor Agreement may be amended or supplemented with the written consent of the Holders of at least a majority in aggregate principal
amount at maturity of the Notes then outstanding, and any existing Default or Event of Default or noncompliance with any provision may be waived with the written consent of the Holders of a majority
in aggregate principal amount at maturity of the Notes then outstanding. Without consent of any Holder, the parties thereto may amend or supplement the Indenture, the Notes, the Guarantees, the
Collateral Agreements or the Intercreditor Agreement to, among other things, cure any ambiguity, defect or inconsistency, provide for uncertificated Notes or Guarantees in addition to or in place of
certificated Notes or Guarantees, comply with the TIA, in connection with any addition or release of Collateral, provide for the assumption of the Company's or any Guarantor's obligations in case of a 


A-6





 



merger
or comply with Article Nine of the Indenture or make any other change that does not adversely affect in any material respect the rights of any Holder of a Note. 



        14.    Restrictive Covenants.    The Indenture imposes certain limitations on the ability
of the Parent and its Restricted Subsidiaries to, among other things, incur additional Indebtedness or Liens, make payments in respect of their Capital Stock or certain Indebtedness, enter into
transactions with Affiliates, create dividend or other payment restrictions affecting Subsidiaries, merge or consolidate with any other Person, sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its assets or adopt a plan of liquidation. Such limitations are subject to a number of important qualifications and exceptions. The Company must annually report
to the Trustee on compliance with such limitations. 


        15.    Successors.    When a successor assumes, in accordance with the Indenture, all the
obligations of its predecessor under the Notes, the Guarantees and the Indenture, the predecessor will be released from those obligations. 


        16.    Defaults and Remedies.    If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount at maturity of Notes then outstanding may declare all the Notes to be due and payable in the manner, at the time and with the
effect provided in the Indenture. Holders of Notes may not enforce the Indenture except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount at maturity of the Notes then
outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in their interest. 


        17.    Trustee Dealings with Company.    Subject to the terms of the TIA and the
Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee. 


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


        19.    Guarantees.    Payment of principal and interest and Additional Interest, if any
(including interest on overdue principal and overdue interest, if lawful), is unconditionally guaranteed, jointly and severally, by each of the Guarantors. 



        20.    Authentication.    This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this Note. 


        21.    Governing Law.    The laws of the State of New York shall govern this Note, the
Guarantees, the Collateral Agreements and the Indenture, without regard to principles of conflict of laws. 


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


        23.    Security.    The Company's and Guarantors' obligations under the Notes are secured
by liens on the Collateral pursuant to the terms of the Collateral Agreements. The actions of the Trustee and the
Holders of the Notes secured by such liens and the application of proceeds from the enforcement of any remedies with respect to such Collateral are limited pursuant to the terms of the Collateral
Agreements. 


        24.    CUSIP Numbers.    Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy
of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed thereon. 


        The
Company will furnish to any Holder of a Note upon written request and without charge a copy of the Indenture. Requests may be made to: Eschelon Operating Company, 730 Second Avenue,
Minneapolis, Minnesota 55402. 


A-7






  



 
 

FORM OF GUARANTEE    



        The
undersigned and its successors under the Indenture has irrevocably and unconditionally guaranteed, on a senior second secured basis to the extent set forth in the Indenture, dated as
of March 17, 2004, by and among Eschelon Operating Company (the "Company"), the Guarantors and Bank of New York Trust Company, N.A., as Trustee and Collateral Agent
(the "Indenture"), (i) the due and punctual payment of the principal of, premium, if any, and interest and Additional Interest, if any, on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and interest and Additional Interest, if any, on the Notes, to the extent lawful, and the
due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms set forth in Article Ten of the Indenture and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise. Capitalized terms used herein have the meanings assigned to them in the Indenture unless otherwise indicated. 


        THE
OBLIGATIONS OF THE UNDERSIGNED TO HOLDERS OF THE NOTES AND TO THE TRUSTEE PURSUANT TO THIS NOTATION OF GUARANTEE (THE "GUARANTEE") AND THE INDENTURE ARE EXPRESSLY SET FORTH IN
ARTICLE TEN OF THE INDENTURE AND REFERENCE IS HEREBY MADE TO THE INDENTURE FOR THE PRECISE TERMS OF THE GUARANTEE AND ALL OTHER PROVISIONS OF THE INDENTURE TO WHICH THE GUARANTEE RELATES. EACH HOLDER
OF A NOTE, BY ACCEPTING THE SAME, (A) AGREES TO AND SHALL BE BOUND BY SUCH PROVISIONS AND (B) APPOINTS THE TRUSTEE ATTORNEY-IN-FACT FOR SUCH HOLDER FOR SUCH
PURPOSES. 


        This
Guarantee shall be governed by and construed in accordance with the laws of the State of New York. 



	 	 	[NAME OF GUARANTOR]
	

 	
 	

By:	

 Name:

Title:




A-8





 
 
 

ASSIGNMENT FORM    




        If
you the Holder want to assign this Note, fill in the form below and have your signature guaranteed: 


I
or we assign and transfer this Note to: 



	

	

 (Print or type name, address and zip code and

social security or tax ID number of assignee)
	

and irrevocably appoint	
 	


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





	

Dated:	
 	

	
 	

Signed:	
 	

 (Sign exactly as your name appears on the other side of this Note)





	

Signature Guarantee:	
 	







        In
connection with any transfer of this Note occurring prior to the date which is the earlier of (i) the date of the declaration by the SEC of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"), covering resales of this Note (which effectiveness shall not have been suspended or
terminated at the date of the transfer) and (ii) March 17, 2006, the
undersigned confirms that it has not utilized any general solicitation or general advertising in connection with the transfer and that this Note is being transferred: 


[Check
One] 



	 
	 	 
	 	 

	(1)	 	            	 	to the Company or a subsidiary thereof; or
	(2)	 	            	 	pursuant to and in compliance with Rule 144A under the Securities Act; or
	(3)	 	            	 	to an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished to the Trustee a signed letter containing certain representations and
agreements (the form of which letter can be obtained from the Trustee); or
	(4)	 	            	 	outside the United States to a person other than a "U.S. person" in compliance with Rule 904 of Regulation S under the Securities Act; or
	(5)	 	            	 	pursuant to the exemption from registration provided by Rule 144 under the Securities Act; or
	(6)	 	            	 	pursuant to an effective registration statement under the Securities Act.





Unless
one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof;
provided that if box (3), (4) or (5) is checked, the Company or the Trustee may require, prior to registering any such transfer of the Notes, in its sole
discretion, such legal opinions, certifications (including an investment letter in the case of box (3) or (4)) and other information as the Trustee or the Company has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. 



        If
none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to register this Note in the name of any person other than the Holder hereof unless and until
the conditions to any such transfer of registration set forth herein and in Section 2.15 of the Indenture shall have been satisfied. 



	

Dated:	
 	

	
 	

Signed:	
 	

 (Sign exactly as your name appears on the other side of this Note)





	

Signature Guarantee:	
 	






A-9





 
TO
BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED 


The
undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account
is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A. 



	

Dated:	
 	

	
 	

 NOTICE: To be executed by an executive officer




A-10





 
 
 

[OPTION OF HOLDER TO ELECT PURCHASE]    




        If
you want to elect to have this Note purchased by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate box: 



        Section 4.15
[            ] 


        Section 4.16
[            ] 




        If
you want to elect to have only part of this Note purchased by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the amount you elect to have
purchased: 



	

$	
 	

	
 	

 	
 	

 
	

Dated:	
 	

	
 	


	 	 	 	 	NOTICE:	 	The signature on this assignment must correspond with the name as it appears upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever and be guaranteed by the
endorser's bank or broker.





	

 	
 	

Signature Guarantee:	
 	






A-11






  



 
 

EXHIBIT B    
    


[FORM OF EXCHANGE NOTE] 


ESCHELON OPERATING COMPANY  


 83/8% SENIOR SECOND SECURED NOTES DUE 2010  



	CUSIP No.	 	 
	No.	 	$                    





        Eschelon
Operating Company, a Minnesota corporation (the "Company," which term includes any successor entity), for value received promises to pay to
                        or registered assigns the principal sum
of                        Dollars (or such principal amount as may be set forth in the records of the Trustee hereinafter referred
to in accordance
with the Indenture) on March 15, 2010, and to pay interest thereon as hereinafter set forth. 


        Interest
Rate: 83/8% 


        Interest
Payment Dates: Interest will be payable semi-annually in cash in arrears on March 15 and September 15 of each year, beginning on September 15,
2004. 


        Record
Dates: March 1 and September 1. 


        Reference
is made to the further provisions of this Note contained on the reverse side of this Note, which will for all purposes have the same effect as if set forth at this place. 



        IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officer. 



	 	 	ESCHELON OPERATING COMPANY
	

 	
 	

By:	

 Name:

Title:





Dated:



B-1





 
 
 

TRUSTEE CERTIFICATE OF AUTHENTICATION    



        This
is one of the 83/8% Senior Second Secured Notes due 2010 referred to in the within-mentioned Indenture. 



	 	 	THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
	

Dated:	
 	

By:	

 Authorized Signatory




B-2






   (REVERSE OF SECURITY)  


 83/8% Senior Second Secured Note due 2010  


        1.    Interest.    Eschelon Operating Company, a Minnesota corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the rate per annum shown above. Interest on the Note will accrue from the most recent date on
which interest has been paid or, if no interest has been paid, from and including the date of issuance. The Company will pay interest semi-annually in arrears on each Interest Payment
Date, commencing September 15, 2004. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. 


        [FOR
REGULATION S TEMPORARY GLOBAL NOTES INSERT: Until this Regulation S Temporary Global Note is exchanged for one or more Regulation S Permanent Global Notes,
the Holder hereof shall not be entitled to receive payments of interest hereon; until so exchanged in full, this Regulation S Temporary Global Note shall in all other respects be entitled to
the same benefits as other Notes under the Indenture.] 


        2.    Method of Payment.    The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are the registered Holders at the close of business on the Record Date immediately preceding the Interest Payment Date even if the Notes are cancelled on registration of
transfer or registration of exchange after such Record Date, and on or before such Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts ("U.S. Legal Tender").
However, the Company may pay principal and interest by check payable in such U.S. Legal Tender. The Company may deliver any such interest payment to the Paying Agent or to a Holder at the Holder's
registered address. 


        3.    Paying Agent and Registrar.    Initially, The Bank of New York Trust Company, N.A.
(the "Trustee") will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar without notice to the Holders. 



        4.    Indenture.    The Notes and the Guarantees were issued under an Indenture, dated as
of March 17, 2004 (the "Indenture"), among the Company, the Guarantors named therein and the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
§§ 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture until such time as the Indenture is qualified under the TIA,
and thereafter as in effect on the date on which the Indenture is qualified under the TIA. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and the TIA for a statement of such terms. The Notes are senior second secured obligations of the Company. Each Holder, by accepting a Note, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended from time to time. 


        5.    Redemption.    


        (f)    Optional Redemption Upon a Change of Control.    The Notes will be redeemable at
the option of the Company, in whole or in part, at any time on or prior to March 15, 2007, if a Change of Control occurs, at a Redemption Price equal to the sum of 112.000% of the Accreted
Value of the Notes as of the Redemption Date, and accrued and unpaid interest, if any, to the Redemption Date (the "Change of Control Redemption Right"). If the Company
elects to exercise the Change of Control Redemption Right, it must mail a notice to each Holder with a copy to the Trustee within 30 days following the Change of Control (or, at its option,
prior to such Change of Control but after the transaction giving rise to such Change of Control is publicly announced). Any such redemption may be conditioned upon the Change of Control occurring if
the notice is mailed prior to the Change of Control. If the Company exercises the Change of Control Redemption Right, it may not make a 


B-3





 



Change
of Control Offer. If the Company makes a Change of Control Offer, it may not exercise the Change of Control Redemption Right. 


        (g)    Optional Redemption After March 15, 2007.    The Notes will be redeemable
at the option of the Company, in whole or in part, at any time on or after March 15, 2007, upon not less than 30 nor more than 60 days' notice, at the following Redemption Prices
(expressed as percentages of the Accreted Value thereof) if redeemed during the twelve-month period commencing on March 15, of the year set forth below, plus, in each case, accrued and unpaid
interest and Additional Interest, if any, thereon to the Redemption Date: 



	Year
 
	 	Percentage

	2007	 	106.000%
	2008	 	103.000%
	2009 and thereafter	 	100.000%






        (h)    Optional Redemption Upon Equity Offerings.    At any time, or from time to time,
on or prior to March 15, 2007, the Company may, at its option, use an amount not to exceed the net cash proceeds of one or more Equity Offerings to redeem up to 35% of the aggregate principal
amount at maturity of the Notes (including Additional Notes, if any) originally issued under the Indenture at a redemption price of 112.000% of the Accreted Value amount thereof, plus accrued and
unpaid interest and Additional Interest thereon, if any, to the Redemption Date. In order to effect the foregoing redemption with the proceeds of an Equity Offering, at least 65% of the original
principal amount at maturity of Notes (including Additional Notes, if any) issued under the Indenture shall remain outstanding immediately after any such redemption and the Company shall make such
redemption not more than 120 days after the consummation of any such Equity Offering. 


        (i)    Mandatory Redemption.    On September 15, 2009, if any Notes are
outstanding, the Company shall redeem 3.5% of each Note (provided that if such redemption results in any unredeemed portion of a Note having a principal amount that is not
a round multiple of $1,000, the Company shall redeem an additional portion of such Note as to reduce the principal amount to a round multiple of $1,000) then outstanding (the "Mandatory
Principal Redemption Amount") at a Redemption Price of 100% of the Accreted Value of the portion of the Notes so redeemed; provided, that
the Company shall simultaneously be required to redeem an additional portion of each Note to the extent required to prevent such Note from being treated as an "Applicable High Yield Discount
Obligation" within the meaning of Section 163(i)(1) of the Internal Revenue Code of 1986, as amended. 


        6.    Notice of Redemption.    Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at such Holder's registered address with a copy to the Trustee and Paying Agent.
If fewer than all of the Notes are to be redeemed, at any time, selection of Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed, or, if the Notes are not so listed, on a pro rata basis, by lot or by such method as the Trustee deems to be fair and
appropriate; provided, that if any such partial redemption made with the proceeds of an Equity Offering, the Trustee will select the Notes only on a
pro rata basis or on as
nearly a pro rata basis as is practicable (subject to DTC procedures), unless such method is otherwise prohibited. Notes in denominations of $1,000 may be redeemed only in
whole. The Trustee may select for redemption portions (equal to $1,000 or any integral multiple thereof) of the principal amount at maturity of Notes that have denominations larger than $1,000 at
maturity. 


        Except
as set forth in the Indenture, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such redemption
date sufficient to pay such Redemption Price plus accrued and unpaid interest and Additional Interest, if any, the Notes called for redemption will cease to bear interest from and after such
Redemption Date, 


B-4





 



and
the only remaining right of the Holders of such Notes will be to receive payment of the Redemption Price plus accrued and unpaid interest and Additional Interest, if any, as of the Redemption Date
upon surrender to the Paying Agent of the Notes redeemed. 


        7.    Offers to Purchase.    Sections 4.15 and 4.16 of the Indenture provide that upon
the occurrence of a Change of Control and after certain Asset Sales, respectively, and subject to further limitations contained therein, the Company will make an offer to purchase certain amounts of
the Notes in accordance with the procedures set forth in the Indenture. 


        8.    Denominations; Transfer; Exchange.    The Notes are in registered form, without
coupons, in denominations of $1,000 and integral multiples thereof. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes, fees or similar governmental charges payable in connection therewith as permitted by the Indenture.
The Registrar need not register the transfer of or exchange of any Notes or portions thereof selected for redemption. 



        9.    Persons Deemed Owners.    The registered Holder of a Note shall be treated as the
owner of it for all purposes. 


        10.    Unclaimed Money.    If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agent may pay the money without interest thereon back to the Company. After that, all liability of the Trustee and such Paying Agent with respect to
such money shall cease. 


        11.    Discharge Prior to Redemption or Maturity.    If the Company at any time deposits
with the Trustee U.S. Legal Tender or U.S. Government Obligations sufficient to pay the principal of and interest on the Notes to redemption or stated maturity and complies with the other provisions
of the Indenture
relating thereto, the Company will be discharged from certain provisions of the Indenture and the Notes (including certain covenants, but excluding its obligation to pay the principal of and interest
and Additional Interest, if any, on the Notes). 


        12.    Amendment; Supplement; Waiver.    Subject to certain exceptions, the Indenture,
the Notes or the Guarantees may be amended or supplemented with the written consent of the Holders of at least a majority in aggregate principal amount at maturity of the Notes then outstanding, and
any existing Default or Event of Default or noncompliance with any provision may be waived with the written consent of the Holders of a majority in aggregate principal amount at maturity of the Notes
then outstanding. Without consent of any Holder, the parties thereto may amend or supplement the Indenture, the Notes or the Guarantees to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Notes or Guarantees in addition to or in place of certificated Notes or Guarantees, comply with the TIA, or comply with Article Nine of the Indenture or make
any other change that does not adversely affect in any material respect the rights of any Holder of a Note. 


        13.    Restrictive Covenants.    The Indenture imposes certain limitations on the ability
of the Parent and its Restricted Subsidiaries to, among other things, incur additional Indebtedness or Liens, make payments in respect of their Capital Stock or certain Indebtedness, enter into
transactions with Affiliates, create dividend or other payment restrictions affecting Subsidiaries, merge or consolidate with any other Person, sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its assets or adopt a plan of liquidation. Such limitations are subject to a number of important qualifications and exceptions. The Company must annually report
to the Trustee on compliance with such limitations. 


        14.    Successors.    When a successor assumes, in accordance with the Indenture, all the
obligations of its predecessor under the Notes, the Guarantees and the Indenture, the predecessor will be released from those obligations. 


B-5





 



        15.    Defaults and Remedies.    If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount at maturity of Notes then outstanding may declare all the Notes to be due and payable in the manner, at the time and with the
effect provided in the Indenture. Holders of Notes may not enforce the Indenture except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount at maturity of the Notes then
outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in their interest. 


        16.    Trustee Dealings with Company.    Subject to the terms of the TIA and the
Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee. 


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


        18.    Guarantees.    Payment of principal and interest and Additional Interest, if any
(including interest on overdue principal and overdue interest, if lawful), is unconditionally guaranteed, jointly and severally, by each of the Guarantors. 



        19.    Authentication.    This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this Note. 


        20.    Governing Law.    The laws of the State of New York shall govern this Note, the
Guarantees, the Collateral Agreements and the Indenture, without regard to principles of conflict of laws. 


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


        22.    Security.    The Company's and Guarantors' obligations under the Notes are secured
by liens on the Collateral pursuant to the terms of the Collateral Agreements. The actions of the Trustee and the Holders of the Notes secured by such liens and the application of proceeds from the
enforcement of any remedies with respect to such Collateral are limited pursuant to the terms of the Collateral Agreements. 



        23.    CUSIP Numbers.    Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy
of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed thereon. 


        The
Company will furnish to any Holder of a Note upon written request and without charge a copy of the Indenture. Requests may be made to: Eschelon Operating Company, 730 Second Avenue,
Minneapolis, Minnesota 55402. 


B-6






  



 
 

FORM OF GUARANTEE    



        The
undersigned and its successors under the Indenture has irrevocably and unconditionally guaranteed, on a senior second secured basis to the extent set forth in the Indenture, dated as
of March 17, 2004, by and among Eschelon Operating Company (the "Company"), the Guarantors and Bank of New York Trust Company, N.A., as Trustee and Collateral Agent
(the "Indenture"), (i) the due and punctual payment of the principal of, premium, if any, and interest and Additional Interest, if any, on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and interest and Additional Interest, if any, on the Notes, to the extent lawful, and the
due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms set forth in Article Ten of the Indenture and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise. Capitalized terms used herein have the meanings assigned to them in the Indenture unless otherwise indicated. 


        THE
OBLIGATIONS OF THE UNDERSIGNED TO HOLDERS OF THE NOTES AND TO THE TRUSTEE PURSUANT TO THIS NOTATION OF GUARANTEE (THE "GUARANTEE") AND THE INDENTURE ARE EXPRESSLY SET FORTH IN
ARTICLE TEN OF THE INDENTURE AND REFERENCE IS HEREBY MADE TO THE INDENTURE FOR THE PRECISE TERMS OF THE GUARANTEE AND ALL OTHER PROVISIONS OF THE INDENTURE TO WHICH THE GUARANTEE RELATES. EACH HOLDER
OF A NOTE, BY ACCEPTING THE SAME, (A) AGREES TO AND SHALL BE BOUND BY SUCH PROVISIONS AND (B) APPOINTS THE TRUSTEE ATTORNEY-IN-FACT FOR SUCH HOLDER FOR SUCH
PURPOSES. 


        This
Guarantee shall be governed by and construed in accordance with the laws of the State of New York. 



	 	 	[NAME OF GUARANTOR]
	

 	
 	

By:	

 Name:

Title:




B-7





 
 
 

ASSIGNMENT FORM    




        If
you the Holder want to assign this Note, fill in the form below and have your signature guaranteed: 


I
or we assign and transfer this Note to: 



	

	

 (Print or type name, address and zip code and

social security or tax ID number of assignee)
	

and irrevocably appoint	
 	


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





	

Dated:	
 	

	
 	

Signed:	
 	

 (Sign exactly as your name appears on the other side of this Note)





	

Signature Guarantee:	
 	






B-8





 
 
 

[OPTION OF HOLDER TO ELECT PURCHASE]    




        If
you want to elect to have this Note purchased by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate box: 



        Section 4.15
[            ] 


        Section 4.16
[            ] 




        If
you want to elect to have only part of this Note purchased by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the amount you elect to have
purchased: 



	

$	
 	

	
 	

 	
 	

 
	

Dated:	
 	

	
 	


	 	 	 	 	NOTICE:	 	The signature on this assignment must correspond with the name as it appears upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever and be guaranteed by the
endorser's bank or broker.





	

 	
 	

Signature Guarantee:	
 	






B-9






  



 
 

EXHIBIT C    
    


 
 

FORM OF LEGEND FOR GLOBAL NOTES    



        Any
Global Note authenticated and delivered hereunder shall bear a legend (which would be in addition to any other legends required in the case of a Restricted Security) in substantially
the following form: 



        [If
a Regulation S Temporary Global Note, insert: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS
EXCHANGE FOR CERTIFICATES NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF INTEREST HEREON.] 


        THIS
NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR
DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. 


        UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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 IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 



C-1






  



 
 

EXHIBIT D    
    


 
 

Form of Certificate To Be
  Delivered in Connection with
  Transfers to Non-QIB Accredited Investors  



            ,
             


The
Bank of New York Trust Company, N.A.

Plaza of the Americas

Corporate Trust Division

600 North Pearl Street, suite 420

Dallas, Texas 75201

Attn: Paul Giordano 



	 	 	Re:	 	83/8% Senior Second Secured Notes due 2010 (the "Notes") of

Eschelon Operating Company (the "Company")





Ladies
and Gentlemen: 


        In
connection with our proposed purchase of $                        aggregate principal amount at maturity of the Notes, we confirm
that: 


        1.     We
have received a copy of the Offering Circular (the "Offering Circular"), dated March 17, 2004, relating to the Notes and such other
information as we deem necessary in order to make our investment decision. We acknowledge that we have read and agreed to the matters stated in the section entitled "Notice to Investors" of the
Offering Circular. 


        2.     We
understand that any subsequent transfer of the Notes is subject to certain restrictions and conditions set forth in the Indenture dated as of March 17, 2004,
relating to the Notes (the "Indenture") and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes except in compliance with,
such restrictions and conditions and the Securities Act of 1933, as amended (the "Securities Act"). 


        3.     We
understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes may not be offered or sold except as permitted in
the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell or otherwise transfer any Notes prior to the
date which is within two years after the original issuance of the Notes or the last date on which the Note is owned by the Company or any affiliate of the Company, we will do so only (i) to the
Company or any of its subsidiaries, (ii) inside the United States in accordance with Rule 144A under the Securities Act to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act), (iii) inside the United States to an institutional "accredited investor" (as defined below) provided that, prior to such transfer, the transferee
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you a signed letter containing certain representations and agreements relating to the restrictions on transfer of the Notes,
substantially in the form of this letter, (iv) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, (v) pursuant to the exemption
from registration provided by Rule 144 under the Securities Act (if available) or (vi) pursuant to an effective registration statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Notes from us a notice advising such purchaser that resales of the Notes are restricted as stated herein. 


D-1





 



        4.     We
are not acquiring the Notes for or on behalf of, and will not transfer the Notes to, any pension or welfare plan (as defined in Section 3 of the Employee
Retirement Income Security Act of 1974), except as permitted in the section entitled "Notice to Investors" of the Offering Circular. 


        5.     We
understand that, on any proposed resale of any Notes, we will be required to furnish to you and the Company such certification, legal opinions and other information as
you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the
foregoing effect. 


        6.     We
are an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting
are each able to bear the economic risk of our or their investment, as the case may be. 


        7.     We
are acquiring the Notes purchased by us for our own account or for one or more accounts (each of which is an institutional "accredited investor") as to each of which
we exercise sole investment discretion. 


        8.     We
are not acquiring Notes with a view to any distribution thereof in a transaction that would violate the Securities Act or the securities laws of any state of the
United States or any other applicable jurisdiction; provided that the disposition of our property and the property of any accounts for which we are acting as fiduciary shall remain at all times within
our and their control. 


        You
and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby, and we agree to notify you promptly if any of our representations or warranties herein cease to be accurate and complete. 


        This
letter shall be governed by, and construed in accordance with, the laws of the State of New York without regard to principles of conflicts of laws. 



	 	 	Very truly yours,

[Name of Transferee]
	

 	
 	

By:	

 Authorized Signature




D-2






  



 
 

EXHIBIT E    
    


 
 

Form of Certificate To Be
  Delivered in Connection with
  Transfers Pursuant to Regulation S  



The
Bank of New York Trust Company, N.A.

Plaza of the Americas

Corporate Trust Division

600 North Pearl Street, suite 420

Dallas, Texas 75201

Attn: Paul Giordano 



	 	 	Re:	 	83/8% Senior Second Secured Notes due 2010 (the "Notes") of

Eschelon Operating Company (the "Company")





Ladies
and Gentlemen: 


        In
connection with our proposed sale of $                        aggregate principal amount at maturity of the Notes, we confirm that
such sale has been effected pursuant to and in accordance
with Regulation S under the U.S. Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we represent that: 


        1.     the
offer of the Notes was not made to a person in the United States; 



        2.     either
(a) at the time the buy offer was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States, or (b) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States; 


        3.     no
directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable; 


        4.     the
transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and 


        5.     we
have advised the transferee of the transfer restrictions applicable to the Notes. 


        You
and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S. 



	 	 	Very truly yours,

[Name of Transferee]
	

 	
 	

By:	

 Authorized Signature




E-1









QuickLinks



EXHIBIT 4.1


CROSS-REFERENCE TABLE


TABLE OF CONTENTS


ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE


ARTICLE TWO THE NOTES


ARTICLE THREE REDEMPTION

ARTICLE FOUR COVENANTS


ARTICLE FIVE SUCCESSOR CORPORATION

ARTICLE SIX DEFAULT AND REMEDIES


ARTICLE SEVEN TRUSTEE


ARTICLE EIGHT SATISFACTION AND DISCHARGE OF INDENTURE

ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS


ARTICLE TEN GUARANTEE


ARTICLE ELEVEN MISCELLANEOUS

ARTICLE TWELVE AGREEMENT TO SUBORDINATE SECURITY INTERESTS; SECURITY


SIGNATURES



EXHIBIT A



FORM OF GUARANTEE

ASSIGNMENT FORM

[OPTION OF HOLDER TO ELECT PURCHASE]



EXHIBIT B


TRUSTEE CERTIFICATE OF AUTHENTICATION



FORM OF GUARANTEE

ASSIGNMENT FORM

[OPTION OF HOLDER TO ELECT PURCHASE]



EXHIBIT C


FORM OF LEGEND FOR GLOBAL NOTES



EXHIBIT D


Form of Certificate To Be Delivered in Connection with Transfers to Non-QIB Accredited Investors




EXHIBIT E


Form of Certificate To Be Delivered in Connection with Transfers Pursuant to Regulation S