exv4w1



 





Exhibit 4.1




 









 








EXECUTION COPY






 

 








INDENTURE,




Dated as of August 23, 2006




AMONG




BROADVIEW NETWORKS HOLDINGS, INC.,




as Issuer,




THE GUARANTORS NAMED HEREIN,




as Guarantors,




AND




THE BANK OF NEW YORK,




as Trustee and Collateral Agent




113/8%
Senior Secured Notes due 2012




 

 






 









 












CROSS-REFERENCE TABLE




	 	 	 
	TIA	 	Indenture
	Section	 	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)
	 	2.05; 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)
	 	7.0 1(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)
	 	2.05; 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	 	 	26	 
	Section 1.03.
	 	Rules of Construction	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE TWO
	 	THE NOTES	 	 	27	 
	Section 2.01.
	 	Form and Dating	 	 	27	 
	Section 2.02.
	 	Execution and Authentication; Aggregate Principal Amount	 	 	28	 
	Section 2.03.
	 	Registrar and Paying Agent	 	 	28	 
	Section 2.04.
	 	Obligations of Paying Agent	 	 	29	 
	Section 2.05.
	 	Holder Lists	 	 	29	 
	Section 2.06.
	 	Transfer and Exchange	 	 	29	 
	Section 2.07.
	 	Replacement Notes	 	 	30	 
	Section 2.08.
	 	Outstanding Notes	 	 	30	 
	Section 2.09.
	 	Treasury Notes; When Notes Are Disregarded	 	 	30	 
	Section 2.10.
	 	Temporary Notes	 	 	31	 
	Section 2.11.
	 	Cancellation	 	 	31	 
	Section 2.12.
	 	CUSIP Numbers	 	 	31	 
	Section 2.13.
	 	Deposit of Moneys	 	 	31	 
	Section 2.14.
	 	Global Securities	 	 	31	 
	Section 2.15.
	 	Book-Entry Provisions for Global Notes	 	 	32	 
	Section 2.16.
	 	Special Transfer Provisions	 	 	33	 
	 
	 	 	 	 	 	 
	ARTICLE THREE
	 	REDEMPTION	 	 	35	 
	Section 3.01.
	 	Optional Redemption	 	 	35	 
	Section 3.02.
	 	Mandatory Redemption	 	 	36	 
	Section 3.03.
	 	Selection of Notes to Be Redeemed	 	 	36	 
	Section 3.04.
	 	Notice of Redemption	 	 	36	 
	Section 3.05.
	 	Effect of Notice of Redemption	 	 	37	 
	Section 3.06.
	 	Deposit of Redemption Price	 	 	37	 
	Section 3.07.
	 	Notes Redeemed in Part	 	 	38	 
	Section 3.08.
	 	Escrow Redemption	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE FOUR
	 	COVENANTS	 	 	38	 
	Section 4.01.
	 	Payment of Notes	 	 	38	 






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TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 4.02.
	 	Maintenance of Office or Agency	 	 	38	 
	Section 4.03.
	 	Corporate Existence	 	 	39	 
	Section 4.04.
	 	Payment of Taxes and Other Claims	 	 	39	 
	Section 4.05.
	 	Maintenance of Properties and Insurance	 	 	39	 
	Section 4.06.
	 	Compliance Certificate; Notice of Default	 	 	39	 
	Section 4.07.
	 	Compliance with Laws	 	 	40	 
	Section 4.08.
	 	Reports to Holders	 	 	40	 
	Section 4.09.
	 	Waiver of Stay, Extension or Usury Laws	 	 	41	 
	Section 4.10.
	 	Limitation on Restricted Payments	 	 	41	 
	Section 4.11.
	 	Limitations on Transactions with Affiliates	 	 	45	 
	Section 4.12.
	 	Limitation on Incurrence of Additional Indebtedness	 	 	46	 
	Section 4.13.
	 	Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	 	 	46	 
	Section 4.14.
	 	Additional Subsidiary Guarantees	 	 	47	 
	Section 4.15.
	 	Repurchase Upon Change of Control	 	 	48	 
	Section 4.16.
	 	Limitation on Asset Sales	 	 	50	 
	Section 4.17.
	 	Limitation on Liens	 	 	51	 
	Section 4.18.
	 	Conduct of Business	 	 	52	 
	Section 4.19.
	 	Limitation on Issuances and Sales of Capital Stock of Subsidiaries	 	 	52	 
	Section 4.20.
	 	Payments for Consent	 	 	52	 
	Section 4.21.
	 	Impairment of Lien	 	 	52	 
	Section 4.22.
	 	Real Estate Mortgages and Filings	 	 	52	 
	Section 4.23.
	 	Additional Interest	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE FIVE
	 	SUCCESSOR CORPORATION	 	 	53	 
	Section 5.01.
	 	Merger, Consolidation and Sale of Assets	 	 	53	 
	Section 5.02.
	 	Successor Corporation Substituted	 	 	54	 
	 
	 	 	 	 	 	 
	ARTICLE SIX
	 	DEFAULT AND REMEDIES	 	 	55	 
	Section 6.01.
	 	Events of Default	 	 	55	 
	Section 6.02.
	 	Acceleration	 	 	56	 
	Section 6.03.
	 	Other Remedies	 	 	57	 
	Section 6.04.
	 	Waiver of Past Defaults	 	 	57	 
	Section 6.05.
	 	Control by Majority	 	 	57	 
	Section 6.06.
	 	Limitation on Suits	 	 	57	 






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TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 6.07.
	 	Rights of Holders to Receive Payment	 	 	58	 
	Section 6.08.
	 	Collection Suit by Trustee or Collateral Agent	 	 	58	 
	Section 6.09.
	 	Trustee May File Proofs of Claim	 	 	58	 
	Section 6.10.
	 	Priorities	 	 	59	 
	Section 6.11.
	 	Undertaking for Costs	 	 	59	 
	Section 6.12.
	 	Restoration of Rights and Remedies	 	 	60	 
	Section 6.13.
	 	Rights and Remedies Cumulative	 	 	60	 
	Section 6.14.
	 	Delay or Omission not Waiver	 	 	60	 
	 
	 	 	 	 	 	 
	ARTICLE SEVEN
	 	TRUSTEE	 	 	60	 
	Section 7.01.
	 	Duties of Trustee	 	 	60	 
	Section 7.02.
	 	Rights of Trustee	 	 	62	 
	Section 7.03.
	 	Individual Rights of Trustee	 	 	63	 
	Section 7.04.
	 	Trustee's Disclaimer	 	 	63	 
	Section 7.05.
	 	Notice of Default	 	 	64	 
	Section 7.06.
	 	Reports by Trustee to Holders	 	 	64	 
	Section 7.07.
	 	Compensation and Indemnity	 	 	65	 
	Section 7.08.
	 	Replacement of Trustee	 	 	66	 
	Section 7.09.
	 	Successor Trustee by Merger, Etc	 	 	67	 
	Section 7.10.
	 	Eligibility; Disqualification	 	 	67	 
	Section 7.11.
	 	Preferential Collection of Claims Against Company	 	 	67	 
	Section 7.12.
	 	Trustee as Collateral Agent and Paying Agent	 	 	68	 
	Section 7.13.
	 	Co-Trustees, Co-Collateral Agent and Separate Trustees, Collateral Agent	 	 	68	 
	Section 7.14.
	 	Force Majeure	 	 	69	 
	 
	 	 	 	 	 	 
	ARTICLE EIGHT
	 	SATISFACTION AND DISCHARGE OF INDENTURE	 	 	69	 
	Section 8.01.
	 	Legal Defeasance and Covenant Defeasance	 	 	69	 
	Section 8.02.
	 	Satisfaction and Discharge	 	 	71	 
	Section 8.03.
	 	Survival of Certain Obligations	 	 	72	 
	Section 8.04.
	 	Acknowledgment of Discharge by Trustee	 	 	72	 
	Section 8.05.
	 	Application of Trust Moneys	 	 	72	 
	Section 8.06.
	 	Repayment to the Company; Unclaimed Money	 	 	73	 
	Section 8.07.
	 	Reinstatement	 	 	73	 
	Section 8.08.
	 	Indemnity for Government Obligations	 	 	73	 






-iii-









 






TABLE OF CONTENTS

(continued)






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE NINE
	 	AMENDMENTS, SUPPLEMENTS AND WAIVERS	 	 	73	 
	Section 9.01.
	 	Without Consent of Holders	 	 	73	 
	Section 9.02.
	 	With Consent of Holders	 	 	74	 
	Section 9.03.
	 	Compliance with TIA	 	 	75	 
	Section 9.04.
	 	Revocation and Effect of Consents	 	 	76	 
	Section 9.05.
	 	Notation on or Exchange of Notes	 	 	76	 
	Section 9.06.
	 	Trustee to Sign Amendments, Etc	 	 	76	 
	Section 9.07.
	 	Conformity with Trust Indenture Act	 	 	77	 
	 
	 	 	 	 	 	 
	ARTICLE TEN
	 	GUARANTEE	 	 	77	 
	Section 10.01.
	 	Guarantee	 	 	77	 
	Section 10.02.
	 	Release of a Guarantor	 	 	78	 
	Section 10.03.
	 	Limitation of Guarantor's Liability	 	 	78	 
	Section 10.04.
	 	Guarantors May Consolidate, etc., on Certain Terms	 	 	79	 
	Section 10.05.
	 	Contribution	 	 	79	 
	Section 10.06.
	 	Waiver of Subrogation	 	 	79	 
	Section 10.07.
	 	Evidence of Guarantee	 	 	80	 
	Section 10.08.
	 	Waiver of Stay, Extension or Usury Laws	 	 	80	 
	 
	 	 	 	 	 	 
	ARTICLE ELEVEN
	 	MISCELLANEOUS	 	 	80	 
	Section 11.01.
	 	Trust Indenture Act Controls	 	 	80	 
	Section 11.02.
	 	Notices	 	 	80	 
	Section 11.03.
	 	Communications by Holders with Other Holders	 	 	81	 
	Section 11.04.
	 	Certificate and Opinion as to Conditions Precedent	 	 	82	 
	Section 11.05.
	 	Statements Required in Certificate or Opinion	 	 	82	 
	Section 11.06.
	 	Rules by Trustee, Paying Agent, Registrar	 	 	82	 
	Section 11.07.
	 	Legal Holidays	 	 	82	 
	Section 11.08.
	 	Governing Law	 	 	83	 
	Section 11.09.
	 	No Adverse Interpretation of Other Agreements	 	 	83	 
	Section 11.10.
	 	No Recourse Against Others	 	 	83	 
	Section 11.11.
	 	Successors	 	 	83	 
	Section 11.12.
	 	Duplicate Originals	 	 	83	 
	Section 11.13.
	 	Severability	 	 	83	 
	Section 11.14.
	 	Waiver of Jury Trial	 	 	83	 






-iv-









 






TABLE OF CONTENTS

(continued)






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE TWELVE
	 	AGREEMENT TO SUBORDINATE SECURITY INTERESTS; SECURITY	 	 	84	 
	Section 12.01.
	 	Grant of Security Interest	 	 	84	 
	Section 12.02.
	 	Intercreditor Agreement	 	 	85	 
	Section 12.03.
	 	Recording and Opinions	 	 	85	 
	Section 12.04.
	 	Release of Collateral	 	 	85	 
	Section 12.05.
	 	Specified Releases of Collateral	 	 	86	 
	Section 12.06.
	 	Release upon Satisfaction or Defeasance of all Outstanding Obligations	 	 	86	 
	Section 12.07.
	 	Form and Sufficiency of Release	 	 	87	 
	Section 12.08.
	 	Purchaser Protected	 	 	87	 
	Section 12.09.
	 	Authorization of Actions to Be Taken by the Collateral Agent Under	 	 	 	 
	 
	 	the Collateral Agreements	 	 	87	 
	Section 12.10.
	 	Authorization of Receipt of Funds by the Collateral Agent Under the Collateral Agreements	 	 	88	 






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







-v-









 





          INDENTURE, dated as of August 23, 2006, among Broadview Networks Holdings, Inc., a
Delaware corporation (the “Company”), the Guarantors (as herein defined) and The Bank of
New York, as Trustee (in such capacity, the “Trustee”), and Collateral Agent (in such
capacity, the “Collateral Agent”).




WITNESSETH:




          WHEREAS, the Company and the Guarantors (with respect to the Guarantees) have duly authorized
the creation of an issue of 113⁄8% Senior Secured Notes due 2012 (the “Initial Notes”), and
113⁄8% Senior Secured Exchange Notes due 2012 (the “Exchange Notes,” and together 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).




          “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 at the time it
merges or consolidates with or into the Company or any of its 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 such acquisition, merger or consolidation and
which Indebtedness is without recourse to the Company or any of its 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 the time of
such acquisition, merger or consolidation.




          “Additional Interest” has, with respect to any Notes that are entitled to the
benefits of a Registration Rights Agreement, the meaning set forth in such 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 and 4.12.




          “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 inSection 4.11.




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




          “Agent Members” has the meaning set forth in Section 2.15(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 Premium” means, with respect to any Note on any applicable redemption
date, the greater of:




          (1) 1.0% of the then outstanding principal amount of such Note; and




          (2) the excess of:




          (A) the present value at such redemption date of the sum of (i) the redemption price of
such Note at September 1, 2009 (such redemption price being set forth in the table appearing
in Section 3.01(c)) plus (ii) all required interest payments due on such Note through September
1, 2009 (excluding accrued but unpaid interest), such present value to be computed using a discount rate equal to
the Treasury Rate as of such redemption date plus 50 basis points; over




          (B) the then outstanding principal amount of such Note.




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




          “Asset Acquisition” means:





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




     (2) the acquisition by the Company or any Restricted Subsidiary of the Company of
the assets of any Person (other than a Restricted Subsidiary of the Company) 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.



          “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) the Company or any
of its Restricted Subsidiaries to any Person other than the Company or a Guarantor or (y) a Foreign
Restricted Subsidiary to any Person other than the Company or a Restricted Subsidiary of the
Company of:




-2-









 









     (1) any Capital Stock of any Restricted Subsidiary of the Company; or




     (2) any other property or assets of the Company or any Restricted Subsidiary of the
Company 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 the Company 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 the Company as permitted in Section
5.01;




     (c) any Restricted Payment permitted in Section 4.10 and any
Permitted Investment;




     (d) the sale of Cash Equivalents;




     (e) the sale or other disposal of First Priority Collateral pursuant to the
exercise of any remedies pursuant to the documents relating to any First
Priority Claims permitted under this 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.




          “ATX” has the meaning set forth in the definition of the term “ATX
Acquisition Agreement.”




          “ATX Acquisition” means the acquisition by the Company of all of the issued and
outstanding Capital Stock of ATX pursuant to the ATX Acquisition Agreement.




          “ATX Acquisition Agreement” means the Stock Purchase Agreement, dated as of June 26,
2006, among the Company, ATX Communications, Inc., a Delaware corporation (“ATX”), its shareholders
and, for the limited purposes set forth therein, Leucadia National Corporation.




          “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.




-3-









 








          “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.




          “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) 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.



-4-









 





          “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 the Company 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) the Company consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into, the Company, 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 the Company 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 the Company;




     (4) (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 the Company, 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 the Company 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 the Company; or




     (5) subsequent to the first Public Equity Offering, individuals who on the Issue Date
constituted the Board of Directors of the Company (together with any new directors
whose election by such Board of Directors or whose nomination for election by the
stockholders of the Company 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(d).




          “Clearstream” means Clearstream Banking, societe anonyme.




          “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; provided,
however, that Collateral shall not include any Excluded Collateral.




          “Collateral Agent” 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.




-5-









 








          “Collateral Agreements” means, collectively, the Security Agreement, the Escrow
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.




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




          “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;




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




     (d) any expenses or charges related to any Equity Offering or the incurrence
of Indebtedness permitted to be incurred by this Indenture (whether or not
successful) or related to the offering of Notes;




     (e) with respect to any period that includes the fiscal quarter ending June 30,
2006, September 30, 2006, December 31, 2006 or March 31, 2007, non-recurring
expenses of ATX and its Restricted Subsidiaries that are described in footnotes
(i), (ii) and (iii) to the table set forth in clause (b) of footnote (4) to the table set
forth immediately following the fifth paragraph of the “Summary Consolidated
Financial and Other Data” section of the Offering Circular to the extent that such expenses
do not exceed $750,000 in the aggregate for all such fiscal quarters; and




     (f) integration expenses and charges that are identified at the time of closing
of any acquisition as resulting from such acquisition (including, without
limitation, cash severance payments and facility closures),


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:






-6-









 









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




     (2) the product of (x) the amount of all dividend payments and distributions on any
Disqualified Capital Stock of such Person and any Preferred Stock of any Restricted
Subsidiary of such Person (other than dividends or distributions paid in Qualified Capital Stock
and dividends or distributions paid to such Person or any of its Restricted Subsidiaries)
paid or required to be paid or made or required to be made 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;
provided, however, that this exclusion shall not apply in determining the principal amount of Indebtedness that
may be incurred pursuant to the proviso to the first sentence under Section 4.12 so
long as such Restricted Subsidiary is a Guarantor;




     (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 Subsidiary of the referent Person by such
Person;




     (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;



-7-









 





     (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;



     (11) all amortization expense relating to intangible assets attributable to customers
acquired in connection with any Asset Acquisition less the reduction in income tax
expense attributable to such amortization expense; and



     (12) 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 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).




          “Conditions for Release” means the satisfaction of the conditions specified in
Section 1.3(a) of the Escrow Agreement.




          “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 101 Barclay Street, 8W, New York, New York 10286, Attn:
Corporate Trust Administration, or such other address as the Trustee may designate from time to time by
notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee
(or such other address as such successor Trustee may designate from time to time by notice to the
Holders and the Company).




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




          “Credit Agreement” means the Credit Agreement dated as of the Issue Date, between the
Company and certain of the Guarantors, as borrowers, and the lenders and agents party thereto
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) or
(14) 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, group of lenders, purchasers or noteholders.




          “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.




-8-









 








          “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.




          “Depositary” 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 as a result of
an event that would constitute a change of control or an asset sale), 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 or an asset
sale) 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 Company 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 Receivables” mean, with respect to any Person as of any date of
determination, the accounts receivable (net of any reserves and allowances for doubtful accounts in
accordance with GAAP) of such 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 that would be required
to be shown on the balance sheet of such Person if prepared on such date, all in accordance with
GAAP.




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




          “Escrow Agreement” means the Escrow and Security Agreement, dated August 23, 2006,
by and among The Bank of New York, as escrow agent and Trustee and the Company.




          “Escrow Account” means the Pledged Account as defined in Section 1.1(a) of the
Escrow Agreement which shall be a segregated account under the sole control of the Trustee that
includes only cash, treasury securities, other cash equivalents, the proceeds thereof and interest
earned thereon, free from all other Liens (other than the Liens of the Trustee for the benefit of
the Holders).




          “Escrow Redemption Date” means




          (1) December 20, 2006; or




          (2) if earlier, the date that is the tenth Business Day following the date on which the
Company shall have notified the Trustee in writing that the ATX Acquisition has been terminated.




-9-









 








          “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




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




          “Excluded Collateral” means:




          (i) the Capital Stock of any Subsidiary of the Company;





          (ii) motor vehicles;




          (iii) leasehold interests in real property with respect to which the Company or any
Guarantor is a tenant or subtenant;




          (iv) rights under any contracts that contain a valid and enforceable prohibition on
assignment of such rights (other than to the extent that any such prohibition would be rendered
ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code of any
relevant jurisdiction or any other applicable law or principles of equity), but only for so long as
such prohibition exists and is effective and valid;




          (v) property and assets owned by the Company or any Guarantors that are the subject of
Permitted Liens described in clause (6) or (7) of the definition thereof for so long as such
Permitted Liens are in effect and the Indebtedness secured thereby otherwise prohibits any other
Liens thereon;




          (vi) payroll accounts of the Company or any
Guarantor;




          (vii) Permitted LC Cash Collateral
Accounts; and



          (viii) property and assets owned by the Company or any Guarantor in which a Lien may not be
granted without governmental approval or consent (but only for so long as the Company or the
applicable Guarantor has not obtained such approval or consents).




          “Excluded Contributions” means the net cash proceeds received by the Company
subsequent to the Issue Date from:




          (1) contributions to its common equity capital, and




          (2) the sale (other than to a Subsidiary of the Company or to any Company or Subsidiary
management equity plan or stock option plan or any other management or employee benefit plan
or agreement) by the Company of shares of its Qualified Capital Stock,




-10-









 







in each case, designated as Excluded Contributions pursuant to an Officers’ Certificate, the cash
proceeds of which are excluded from the calculation set forth in clause (iii) (B) or (C), as the
case may be, of Section 4.10.




          “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.




          “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 Administrative Agent and any successor 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 Obligations under the Credit Agreement.




          “First Priority Claims” means (a) Indebtedness under the Credit Agreement permitted
pursuant to clause (2) or (14) of the definition of Permitted Indebtedness, (b) First Priority Cash
Management Obligations and First Priority Hedging Obligations, and (c) all other Obligations under
the documents relating to Indebtedness described in clauses (a) and (b) above.




          “First Priority Hedging Obligations” means all Interest Swap Obligations secured by
any assets constituting Collateral under the documents that secure Obligations under the Credit
Agreement.




          “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 (I) each of the Company’s Domestic Restricted Subsidiaries existing
on the Issue Date and (2) each of the Company’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 the Indenture as a Guarantor; provided that any Person constituting a Guarantor as
described




-11-









 







above shall cease to constitute a Guarantor when its respective Guarantee is released in accordance
with the terms of this Indenture.




          “Holder” means the Person in whose name a Note is registered on the
registrar’s books.




          “Immaterial Subsidiary” means, as of any date, any Domestic Restricted Subsidiary
whose assets, as of that date, have a fair market value of less than $250,000 and whose total
revenues for the most recent 12-month period do not exceed $250,000; provided that a Domestic
Restricted Subsidiary will not be considered to be an Immaterial Subsidiary if it, directly or
indirectly, (1) Guarantees or otherwise provides direct credit support for any Indebtedness of the
Company or any Guarantor or (2) possesses any license relating to the delivery or distribution of
telecommunications, voice, data or video services; provided further, that neither the aggregate
fair market value of assets nor the aggregate total revenues for the most recent 12-month period of
all Immaterial Subsidiaries may exceed $1.0 million or $1.0 million, respectively.




          “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;




     (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.



-12-









 




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 the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.




          “Initial Deposit” means an amount equal to the sum of (x) $95.0 million and (y) the
amount of interest that would accrue on Notes in an aggregate principal amount of $95.0 million for
the period from the Issue Date to December 20, 2006 as deposited by the Company in the Escrow
Account pursuant to Section 1.1(a) of the Escrow Agreement.




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




          “Initial Purchaser” means Jefferies & Company, Inc.




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




          “Intercreditor Agreement” means the Intercreditor Agreement, dated as of the Issue
Date, among the First Lien Agent, the Trustee, the Collateral Agent, the Company and the
Guarantors, as the same may be amended, supplemented or modified from time to time.




          “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 the Company




-13-









 







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 the Company 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 the Company or any Restricted Subsidiary of a Person that holds an Investment in a
third Person will be deemed to be an Investment by the Company or such Restricted Subsidiary in
such third Person 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 Section 4.10:





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



          “Issue Date” means August 23, 2006.




          “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.




          “Maturity Date” means September 1, 2012.




          “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 4.22.




          “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 the Company or any of its Restricted Subsidiaries from
such Asset Sale net of:




-14-









 









     (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 reasonably estimated by
the Company 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 the Company 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 the Company 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, (including,
without limitation, interest occurring after an insolvency, bankruptcy or similar proceeding,
whether or not such interest is an allowed claim in any such proceeding), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.




          “Offering” means the offering of the Notes hereunder.




          “Offering Circular” means the final offering circular, dated as of August 15,
2006, relating to the Offering.




          “Officer” means the Chief Executive Officer, the President, the Chief Financial
Officer or any Vice President of the Company.




-15-









 








          “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.




          “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.




          “Permitted Business” means:





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




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



          “Permitted Holders” means: MCG Capital Corporation, Baker Communications Fund, L.P.,
Baker Communications Fund II (QP) L.P., New Enterprise Associates VII, L.P., New Enterprise
Associates 9, L.P., NEA Ventures 1998, L.P., New Enterprise Associates 10, L.P., NEA Presidents
Fund and their respective controlled Affiliates.




          “Permitted Indebtedness” means, without duplication, each of the following:





     (1) Indebtedness under the Notes issued in the Offering in an aggregate outstanding
principal amount not to exceed $210.0 million, the Exchange Notes issued in connection
with the Exchange Offer relating to such Notes 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 excess of (x) the sum of (a) $25.0
million and (b) 80% of Eligible Receivables acquired in connection with any acquisition by the
Company or any Guarantor of the assets of a Person that is not the Company or any of its
Subsidiaries (including pursuant to a Permitted Investment of the type described in clause (1) of
the definition thereof) over (y) the aggregate amount of permanent reductions to the revolving
commitments made and principal of term Indebtedness prepaid, in each case, from time to time
pursuant to Section 4.16;




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




     (4) Interest Swap Obligations of the Company or any Restricted Subsidiary of the
Company covering Indebtedness of the Company 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) 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



-16-









 






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 (5) by the issuer of such Indebtedness;




     (6) 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;




     (7) Indebtedness of the Company or any of its Restricted Subsidiaries represented by
letters of credit for the account of the Company 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;




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




     (9) Refinancing Indebtedness;




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




     (11) Indebtedness arising from agreements of the Company 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 the Company and the Subsidiary in connection with such disposition;




     (12) Indebtedness of the Company 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;




     (13) (a) up to $1.5 million of Indebtedness in respect of letters of credit (the
“Specified Permitted LCs”) that (i) are issued on or prior to the date that is 90 days
following the Issue Date and (ii) are collateralized with cash or cash equivalents in an amount at least
equal to (but not exceeding 105% of) the aggregate stated amount of such letters of credit, and (b)
Indebtedness in respect of letters of credit (the “Verizon Permitted LCs” and,
together with the Specified Permitted LCs, the “Permitted LCs”) that (i) are or were issued to (A)
Verizon Communications Inc. and/or its affiliates (collectively, “Verizon”) or (B) a financial
institution that issued one or more letters of credit to Verizon for the account of the Persons that were
holders of the capital stock of ATX immediately prior to the consummation of the ATX
Acquisition, (ii) have an aggregate stated amount not exceeding the Verizon Permitted LC
Amount and (iii) are collateralized with cash or cash equivalents in an amount at least equal
to (but not exceeding 105% of) the aggregate stated amount of such letters of credit; and



-17-









 






     (14) additional Indebtedness of the Company and its Restricted Subsidiaries in an
aggregate principal amount not to exceed $10.0 million at any time outstanding (including
Indebtedness consisting of Capitalized Lease Obligations, Purchase Money Indebtedness and
Indebtedness incurred under the Credit Agreement).



          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 (14) above or is entitled to be incurred under the
Leverage Ratio, the Company shall, in its sole discretion, classify (or later reclassify) such item
of Indebtedness in any manner that complies with this covenant. Indebtedness of the type described
in clause (13) above that is outstanding on the Issue Date will initially be deemed to have been
incurred on such date in reliance on the exception provided by such clause (and for the avoidance
of doubt, not clause (3) above). 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.




          “Permitted Investments” means:





     (1) Investments by the Company or any Restricted Subsidiary of the Company 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 (including
Investments consisting of guarantees made by the Company or any such Restricted Subsidiary in
respect of Indebtedness of the Company or any such Person that is otherwise permitted under this
Indenture);




     (2) Investments in cash and Cash Equivalents;




     (3) Interest Swap Obligations entered into (a) in the ordinary course of the
Company’s or its Restricted Subsidiaries’ businesses, (b) not for speculative purposes
and (c) 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;



-18-









 






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




     (10) additional Investments by the Company or any of its Restricted Subsidiaries not
in excess of $5.0 million at any one time outstanding.




     “Permitted LC Cash Collateral Accounts” means the accounts in which cash and cash
equivalents are deposited to secure Permitted LCs in accordance with clauses (13) (a) (ii) and (b)
(iii) pursuant to Permitted Liens of the type described in clause (18) of the definition thereof.




     “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 the
Company 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 the Company or any of its Restricted Subsidiaries;




     (6) any interest or title of a lessor under any Capitalized Lease Obligation permitted
pursuant to clause (14) of the definition of the term ‘Permitted Indebtedness;” provided
that such Liens do not extend to any property or assets which are not leased property subject to
such Capitalized Lease Obligation;




     (7) Liens securing Purchase Money Indebtedness permitted pursuant to clause (14)
of the definition of the term “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 the Company or any Restricted Subsidiary of the
Company 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;



-19-









 






     (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 the Company 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; provided, that with
respect to any such Liens on Second Priority Collateral that secure such Interest Swap Obligations
constituting First Priority Claims, such Liens are contractually subordinated to the Liens
thereon that secure the Notes and the Guarantees pursuant to the terms of the Intercreditor Agreement;




     (12) Liens securing First Priority Cash Management Obligations; provided, that any
such Liens on Second Priority Collateral are contractually subordinated to the Liens thereon
that secure the Notes and the Guarantees pursuant to the terms of the Intercreditor Agreement;




     (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 the Company or a Restricted
Subsidiary of the Company and were not granted in connection with, or in anticipation
of, the incurrence of such Acquired Indebtedness by the Company, or a Restricted
Subsidiary of the Company; and




     (b) such Liens do not extend to or cover any property or assets of the
Company 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 the Company or a Restricted Subsidiary of the Company and are no more
favorable to the lienholders than those securing the Acquired Indebtedness prior to
the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of
the Company;




     (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 Obligations under this Indenture and the
Guarantees;




     (16) Liens securing Indebtedness under the Credit Agreement (other than any Liens
on the Escrow Account or any funds or investment property on deposit therein or credited
thereto), to the extent such Indebtedness is permitted under clause (2) or (14) of the
definition of the term “Permitted Indebtedness”, and other Obligations thereunder; provided, that
any such



-20-









 






Liens on Second Priority Collateral are contractually subordinated to the Liens thereon
that secure the Notes and the Guarantees pursuant to the terms of the Intercreditor
Agreement;




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




     (18) Liens securing Permitted LCs, to the extent (i) such Indebtedness is permitted
under clause (13) of the definition of the term “Permitted Indebtedness;” (ii) such
Liens only cover Permitted LC Cash Collateral Accounts and the cash and cash equivalents on
deposit therein; and (iii) the aggregate amount of such cash and cash equivalents that are
subject to any such Lien are in an amount at least equal to (but not exceeding 105% of) the aggregate
stated amount of the Permitted LCs secured thereby.



          “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 2.15(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 4.22.




          “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




-21-









 







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 Officers’
Certificate signed by the Company’s chief financial officer and another Officer which states in
detail (i) the amount of 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 Company’s Board of Directors.




          “Public Equity Offering” means an underwritten public offering of Common Stock of the
Company or any holding company of the Company 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 the Company 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 the Company or any Restricted
Subsidiary of the Company of Indebtedness incurred in accordance with Section 4.12 (other
than pursuant to Permitted Indebtedness) or clause (1), (3) or (9) 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;



-22-









 






     (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.




          “Registrar” has the meaning set forth in Section 2.03.




          “Registration Rights Agreement” means (a) the Registration Rights Agreement, dated as
of the Issue Date, between the Company, the Guarantors and the Initial Purchaser, as the same may
be amended or modified from time to time in accordance with the terms thereof and (b) any
registration rights agreement between the Company, the Guarantors and the other parties thereto in
connection with the issuance of Additional Notes.




          “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.




          “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 l-02(w)
of Regulation S-X under the Exchange Act.




-23-









 








          “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.



          “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.




          “Transaction Date” means with respect to the incurrence of any Indebtedness by
the Company 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.




          “Treasury Rate” means, with respect to the Notes, as of the applicable Redemption
Date, the semiannual equivalent yield to maturity as of such Redemption Date of constant maturity
United States Treasury securities (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two Business Days prior
to such Redemption Date (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the period from such Redemption Date
to September 1, 2009; provided, however, that if no published maturity exactly corresponds
with such date, then the Treasury Rate shall be interpolated or extrapolated on a straight-line
basis from the arithmetic mean of the yields for the next shortest and next longest published
maturities; provided further, however, that if the period from such
Redemption Date to September 1, 2009 is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year will be used.




          “Trust Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of 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.




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




-24-









 









     (1) the Company certifies to the Trustee that such designation complies with
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 the Company 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, the Company 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.




          “Verizon Permitted LC Amount” means the excess of (x) $18.0 million over (y) the
aggregate amount of settlement payments made after the Issue Date to Verizon.




          “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 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 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.




-25-









 








          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”;




     (7) all references to “interest” in this Indenture in respect of any Note shall include
any Additional Interest due on such Note pursuant to the terms of the applicable
Registration Rights Agreement; and




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



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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 permanent Global Note ( 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.




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          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.




          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 not to exceed $210,000,000 (ii) Exchange Notes from time to time for issue only pursuant to
the Registration Rights Agreement in exchange for a like principal amount 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 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.




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          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.




          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 2.15 and 2.16, 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




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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.




          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.




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          In determining whether the Holders of the required principal amount 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 a Trust Officer of 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 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. Global Securities.




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          Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not
taken by the Depositary.




          SECTION 2.15. 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 2.16, 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 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.




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          (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 2.16, 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 2.16. 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 August 23, 2008 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




     (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



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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
2.16 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 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 2.15 or this Section 2.16. 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.





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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 3.04 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 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 Prior to September 1, 2009. The Company may redeem the Notes
for cash, at its option, in whole or in part at any time prior to September 1, 2009, upon not less
than 30 nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount
of the Notes being redeemed plus the Applicable Premiums, as of, and accrued and unpaid interest,
if any, to the Redemption Date.




          (c) Optional Redemption on or After September 1, 2009. The Company may redeem the
Notes, at its option, in whole or in part at any time on or after September 1, 2009, upon not less
than 30 nor more than 60 days’ notice, at the following redemption prices (expressed as percentages
of the principal amount thereof) if redeemed during the twelve-month period commencing on September
1 of the year set forth below:




	 	 	 	 	 
	Year	 	Percentage
	 
	 	 	 	 
	2009
	 	 	105.688	%
	2010
	 	 	102.844	%
	2011 and thereafter
	 	 	100.000	%






          In addition, the Company must pay accrued and unpaid interest on the aggregate principal
amount of the Notes redeemed.




          (d) Optional Redemption Upon a Change of Control. At any time on or prior to September
1, 2009, 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 111.375% of the principal amount
of the Notes as of the Redemption Date, plus accrued and unpaid interest thereon 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 the Company’s 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.




          (e) Optional Redemption Upon Equity Offerings. At any time, or from time to time, on
or prior to September 1, 2009, 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
of the Notes (including Additional Notes, if any) originally issued under this Indenture at a
redemption price




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of 111.375% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon to
the Redemption Date; provided that:





     (1) at least 65% of the principal amount of Notes (including Additional Notes,
if any) originally 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




     The Company shall not be required to make any mandatory redemption or sinking fund payments
with respect to the Notes, except as described in Section 3.08.



          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, 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 thereof, to be redeemed.




          Notes of a principal amount 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 of Notes that have denominations larger than $1,000. 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 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;



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     (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;




     (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 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, 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 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 of Notes to be redeemed and the aggregate principal amount 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(d) 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 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 thereon, to the Redemption Date, but installments of
interest thereon, 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.




          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.




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          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 to the unredeemed portion of the Note surrendered.




          SECTION 3.08. Escrow Redemption.




          If the Escrow Redemption Date shall occur prior to the satisfaction of the Conditions for
Release, the Company will be required to redeem Notes in an aggregate principal amount of $95.0
million on the Escrow Redemption Date at par plus accrued and unpaid interest thereon to the
Escrow Redemption Date. Following the consummation of the redemption set forth in this Section
3.08, any funds remaining in the Escrow Account shall be released to the Company, which funds
may be used by the Company for general corporate purposes otherwise permitted by this Indenture.




          Other than as specifically provided in this Section 3.08, any redemption pursuant to
this Section 3.08 shall be made pursuant to the provisions of Sections 3.01 through
3.07 hereof.




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.




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          SECTION 4.03. Corporate Existence.




          Except as otherwise permitted by Article Four, Five, and Ten 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 limited liability company,
partnership or corporate existence of each of its Restricted Subsidiaries in accordance with the
respective organizational documents of the Company and each such Restricted Subsidiary, as the case
may be, 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.




          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 in which the Company and its Restricted Subsidiaries are engaged.




          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




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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) (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 Commission, so long as any Notes are outstanding, the Company 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 Commission on Forms 10-Q and 10-K if the Company 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 the Company 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 the Company and its Restricted Subsidiaries
separate from the financial condition and results of operations of the Unrestricted
Subsidiaries of the Company, if any) and, with respect to the annual information only, a
report thereon by the Company’s certified independent accountants; and




     (2) all current reports that would be required to be filed with the Commission on
Form 8-K if the Company were required to file such reports,


in each case within the time periods specified in the Commission’s rules and regulations.




-40-









 








          Notwithstanding the foregoing, the Company may satisfy such requirements prior to the
effectiveness of the registration statement contemplated by the Registration Rights Agreement by
filing with the Commission such registration statement within the time period required for such
filing as specified in the Registration Rights Agreement, to the extent that any such registration
statement contains substantially the same information as would be required to be filed by the
Company if it were subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act.




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




          Notwithstanding the foregoing, the Company will be deemed to have furnished such reports to
the Trustee and the Holders if it has filed such reports with the Commission via the EDGAR filing
system and such reports are publicly available.




          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. The Company 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 the Company and dividends and
distributions payable to the Company or another Restricted Subsidiary of the Company) on or
in respect of shares of Capital Stock of the Company or its Restricted Subsidiaries to
holders of such Capital Stock;




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



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     (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
(other than the payment, redemption, repurchase, defeasance, acquisition or retirement of
Indebtedness of the Company or any Guarantor that is subordinate or junior in right of
payment to the Notes or a Guarantee in anticipation of satisfying a sinking fund obligation,
principal installment of final maturity, in each case due within one year of the date of
such payment, redemption, repurchase, defeasance, acquisition or retirement); 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) the Company is not able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.12; or




     (iii) the aggregate amount of Restricted Payments (including such proposed
Restricted Payment) made on or after the first day of the Company’s fiscal quarter during
which the Issue Date occurs (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) 50% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income is a loss, minus 100% of such loss) of the
Company earned during the period (taken as one accounting period) beginning on
the first day of the Company’s fiscal quarter during which the Issue Date
occurs 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 the Company from any
Person (other than a Subsidiary of the Company) from the issuance and sale
subsequent to the Issue Date and on or prior to the Transaction Date of Qualified
Capital Stock of the Company (other than in connection with any Excluded
Contribution); 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 the
Company from a holder of the Company’s Capital Stock subsequent to the Issue Date
and on or prior to the Transaction Date (other than in connection with any Excluded
Contribution); plus




     (D) 100% of the aggregate net cash proceeds received from the issuance of
Indebtedness or shares of Disqualified Capital Stock of the Company that have been
converted into or exchanged for Qualified Capital Stock of the Company 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 the Company 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



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representing the return of capital (excluding dividends and distributions otherwise
included in Consolidated Net Income), in each case received by the Company or any
Restricted Subsidiary, and (ii) to the extent such Person is an Unrestricted
Subsidiary, the portion (proportionate to the Company’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 the Company 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 the Company financed directly or indirectly using funds borrowed from
the Company or any Subsidiary of the Company, 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 the Company, either (i)
solely in exchange for other shares of Qualified Capital Stock of the Company or (ii)
through the application of net proceeds of a sale for cash (other than to a Subsidiary of
the Company) of shares of Qualified Capital Stock of the Company or a cash capital
contribution received by the Company from its shareholders (in each case, other than in
connection with any Excluded Contribution) within 60 days after such sale, exchange or
receipt of such cash capital contribution;




     (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 of Qualified Capital Stock of the Company, or (ii) through the
application of net proceeds of (a) a sale for cash (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company or a cash capital contribution
received by the Company from its shareholders (in each case, other than in connection with
any Excluded Contribution) within 60 days of such sale or receipt of such cash capital contribution 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 the Company or (ii) through the application of the net proceeds of a sale for cash (other
than to a Subsidiary of the Company) of shares of Qualified Capital Stock of the Company or
a cash capital contribution received by the Company from its shareholders (in each case,
other than in connection with any Excluded Contribution) within 60 days after such sale or
receipt of such cash capital contribution;




     (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 the Company from employees, former employees, directors, former directors or other
shareholders of the Company (or permitted transferees of such employees, former employees,
directors or former



-43-









 







directors), pursuant to the terms of the agreements (including employment agreements), plans
(or amendments thereto) or other arrangements approved by the Board of Directors of the
Company under which such shares were granted, issued or sold or such other repurchases or
acquisitions as may be approved by the Board of Directors of the Company; provided,
however, that the aggregate amount of such repurchases and other acquisitions in any
calendar year shall not exceed $750,000; provided further; however;
that any unutilized amounts may be carried over and paid in the next succeeding calendar
year; provided further, however, that such amount in any calendar
year may be increased by an amount not to exceed the cash proceeds of key man life insurance
policies received by the Company (to the extent contributed to the Company) and its
Restricted Subsidiaries subsequent to the Issue Date;




     (6) in the event of a Change of Control, and if no Default or Event of 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 the
Company pursuant to applicable law 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 the
Company or any of its Restricted Subsidiaries;




     (9) if no Default or Event of 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;




     (10) the declaration and payment of scheduled dividends or distributions to holders of
any class or series of Disqualified Capital Stock of the Company or any of its Restricted
Subsidiaries issued or incurred in accordance with Section 4.12;




     (11) any Restricted Payments made in connection with the consummation of the
Transactions or the ATX Acquisition on substantially the terms described in this
offering memorandum; and




     (12) Restricted Payments that are made with Excluded Contributions.



          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.




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          SECTION 4.11. Limitations on Transactions with Affiliates. (a) The Company 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 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 the Company or such Restricted
Subsidiary.


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
the Company (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 the Company or any Restricted
Subsidiary of the Company 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, the Company 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 the
Company 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 paragraph (a) 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 the Company or any Restricted
Subsidiary of the Company as determined in good faith by the Company’s Board of
Directors or senior management;




     (2) transactions between or among the Company and any of its Restricted
Subsidiaries or between or among such Restricted Subsidiaries, provided (i)
that such transactions are not otherwise prohibited by this Indenture and (ii) in
the case of any such transactions involving an Affiliate of the Company that is not
a Restricted Subsidiary, such transaction as it relates to such Affiliate and the
Company or any of its Restricted Subsidiaries, in any event, complies with the terms
of this Section 4.11;




     (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) Permitted Investments (other than those of the types described in clauses
(1), (2), (4) and (6) of the definition thereof) and Restricted Payments permitted
by this Indenture;




     (5) any employment, stock option, stock repurchase, employee benefit
compensation, business expense reimbursement, severance, termination or other



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employment-related agreements, arrangements or plans entered into by the Company or
any of its Restricted Subsidiaries in the ordinary course of business;




     (6) transactions with customers, clients, suppliers or sellers of goods or
services, in each case in the ordinary course of business and otherwise in
compliance with the terms of the Indenture, 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 the Company
or the applicable Restricted Subsidiary;




     (7) transactions to effect the Transactions and the payment of all fees and
expenses related to the Transactions;




     (8) the issuance of Qualified Capital Stock of the Company; and




     (9) any contribution to the capital of the Company.



          SECTION 4.12. Limitation on Incurrence of Additional Indebtedness. The Company
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 or any
Restricted Subsidiary of the Company 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 the Company and its Restricted Subsidiaries on a consolidated basis
outstanding as of the Transaction Date, to




     (2) the Pro Forma Consolidated Cash Flow of the Company 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 4.00 to 1.00.




          SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries. The Company 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 consensual encumbrance or restriction on the ability of any Restricted Subsidiary of
the Company 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 the
Company or any other Restricted Subsidiary of the Company; or




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


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




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          (a) any applicable law, rule, regulation or order;




          (b) this Indenture and the Collateral Agreements;




          (c) customary non-assignment provisions of any lease of any Restricted Subsidiary of the
Company 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 (including the Credit Agreement) to the extent and
in the manner such agreements are in effect on the Issue Date;




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




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




          (k) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in clause (b), (d), (e) or (k) above;
provided, however, that the provisions relating to such encumbrance or restriction
contained in any such Indebtedness are no less favorable to the Company in any material respect as
determined by the Board of Directors of the Company 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), (e) or (k).




          SECTION 4.14. Additional Subsidiary Guarantees. If the Company 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 the Company shall cause such
Domestic Restricted Subsidiary that is not a Guarantor to:





     (1) execute and deliver to the Trustee a supplemental indenture in form
reasonably satisfactory to the Trustee pursuant to which such Domestic Restricted Subsidiary
shall



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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 Trustee and the Collateral Agent amendments to the
Collateral Agreements and take such other actions as may be necessary 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 or such other actions 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 or the Collateral Agent 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.




     Notwithstanding anything to the contrary in the immediately preceding paragraph, any Domestic
Restricted Subsidiary that constitutes an Immaterial Subsidiary need not become a Guarantor until
such time as it ceases to be an Immaterial Subsidiary.



          SECTION 4.15. Repurchase Upon Change of Control.




          (a) Upon the occurrence of a Change of Control, each Holder will have the right to require the
Company to 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 principal amount thereof on the date
of purchase, plus accrued and unpaid interest 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 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”);




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



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     (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 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 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
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, 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 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.




          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.




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          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.




          Notes (or portions thereof) purchased pursuant to a Change of Control Offer shall be cancelled
and may not be reissued.




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





     (1) the Company or the 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 the Company 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 (i) any liabilities (as shown on the most recent applicable balance sheet) of the
Company 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 the Company or any of its
Subsidiaries with respect to such liabilities; and (ii) any securities, notes or other
obligations received by the Company or any such Restricted Subsidiary from such transferee
that are converted by the Company or such Restricted Subsidiary into cash within 30 days
after such Asset Sale shall be deemed to be cash for purposes of this provision to the
extent of the cash received in that conversion; and




     (3) the Company 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 the extent the assets and property that are the subject of such Asset Sale do not
constitute Second Priority Collateral, to repay Indebtedness under the Credit Agreement and, in the
case of revolving credit Indebtedness, permanently reduce the commitments in respect thereof;




          (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
Permitted Business (including expenditures for maintenance, repair or improvement of existing
properties and assets) (“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. No later than the
361st day after an Asset Sale (such date, 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 the




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maximum principal amount of Notes that may be purchased with the Net Proceeds Offer Amount at a
price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to
the date of purchase; provided, however, that if at any time any non-cash
consideration received by the Company or any Restricted Subsidiary of the Company, 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
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
the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted
under 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 the Company 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 the Company or its Restricted Subsidiaries deemed to be sold shall
be deemed to be Net Cash Proceeds for purposes of this covenant.




          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-l 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. The Company 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 the Company 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.




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          SECTION 4.18. Conduct of Business. The Company 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. The
Company will not permit or cause any of its Restricted Subsidiaries to issue, sell, transfer or
otherwise dispose of any Capital Stock (other than to the Company or to a Wholly-Owned Subsidiary
of the Company), except as required by applicable law; provided, however, that this
provision shall not prohibit (1) any issuance or sale if, immediately 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. The Company 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, the Notes, the
Guarantees or the Registration Rights Agreement, 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.




          SECTION4.21. Impairment of Lien. Neither the Company 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
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. The Company will, and will cause each Guarantor to, use its reasonable best
efforts to obtain necessary governmental approvals to grant Liens pursuant to the Collateral
Agreements on Excluded Collateral of the types described in clause (viii) of the definition
thereof.




          SECTION 4.22. Real Estate Mortgages and Filings. With respect to any fee interest in
any real property (individually and collectively, the “Premises”) acquired by the Company
or a Domestic Restricted 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 the Company 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;



-52-









 






     (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.



          SECTION 4.23. Additional Interest. If Additional Interest becomes payable by the
Company pursuant to the Registration Rights Agreement, the Company shall deliver to the Trustee an
Officers’ Certificate stating (i) the amount of Additional Interest due and payable, (ii) the
Section of the Registration Rights Agreement pursuant to which Additional Interest is due and
payable and (iii) the date on which Additional Interest is payable. Unless and until a Trust
Officer of the Trustee receives such an Officers’ Certificate, the Trustee may assume without
inquiry that no Additional Interest is payable; provided, that the failure of the Company to
deliver to the Trustee such Officers’ Certificate shall not relieve the Company of its obligation
to pay any such Additional Interest when due and payable.




ARTICLE FIVE




SUCCESSOR CORPORATION




          SECTION 5.01. Merger, Consolidation and Sale of Assets. The Company will not, 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 the Company 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) the Company shall be the surviving or continuing corporation; or




          (b) the Person (if other than the Company) formed by such consolidation or into which the
Company is merged or the Person which acquires by sale, assignment, transfer, lease,
conveyance or other disposition the properties and assets of 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, and
interest on all of the Notes and the performance of every covenant of the Notes,
this Indenture and the



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Registration Rights Agreement on the part of 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 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), the Company or such Surviving Entity, as the case may be, 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) 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 the Company, the Capital Stock of which
constitutes all or substantially all of the properties and assets of the Company shall be deemed to
be the transfer of all or substantially all of the properties and assets of 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 the Company in accordance
with the foregoing, in which the Company is not surviving or the continuing corporation, the
successor Person formed by such consolidation or into which 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, 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 Company shall be released from their obligations under
the Notes, this Indenture, the Guarantees and the Collateral Agreements.




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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 (including Additional Interest, if any) on any Notes when the
same becomes due and payable and the default continues for a period of 30 days;




     (2) the failure to pay the principal of or premium, if any, on any Notes, when such principal
or premium, if any, 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 on the earlier of (x) the date specified for such payment in the applicable
offer to purchase and (y) if no such offer to purchase was made, the latest date that the Company
would have been obligated to purchase such Notes if it had complied with the provisions of the
Indenture relating to the making of such offer to purchase);




     (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 on any
Note) or any Collateral Agreement which default continues for a period of 45 days after 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 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 (after giving effect to any applicable grace periods
and any extensions thereof) the principal amount of any Indebtedness of the Company or any
Restricted Subsidiary of the Company, 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 the Company 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 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;



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     (7) a court of competent jurisdiction enters a judgment, decree or order for relief in
respect of 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, 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;




     (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 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 Section 6.01
(6) or (7) above with respect to the Company) shall occur and be continuing and has
not been waived, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes may declare
the principal of and premium, if any, and accrued interest 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 Section 6.01 (6) or (7) above with
respect to the Company occurs and is continuing, then all unpaid principal of, and premium, if any, and
accrued interest 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 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, or interest 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, which has become due otherwise than by such declaration of
acceleration, has been paid; (4) if the Company has paid each of the Trustee and the Collateral Agent its
reasonable compensation and reimbursed each of the Trustee and the Collateral Agent for its reasonable
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 Section 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




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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.




          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 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, or interest 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 Intercreditor Agreement and applicable law, the Holders
of a majority in principal amount of the outstanding Notes may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or the Collateral
Agent, as the case may be, or exercising any trust or power conferred on the Trustee or the
Collateral Agent, as the case may be, including, without limitation, any remedies provided for in
Section 6.03. Subject to Section 7.01 and 7.02(f), however, the Trustee or
the Collateral Agent, as the case may be, may refuse to follow any direction (which direction, if
sent to the Trustee or the Collateral Agent, as the case may be, shall be in writing) that the
Trustee or the Collateral Agent, as the case may be, reasonably believes conflicts with any
applicable law, this Indenture, the Notes, the Guarantees or the Collateral Agreements, that the
Trustee or the Collateral Agent, as the case may be, determines may be unduly prejudicial to the
rights of another Holder, or that may subject the Trustee or the Collateral Agent, as the case may
be, to personal liability; provided that the Trustee or the Collateral Agent, as the case
may be, may take any other action deemed proper by the Trustee or the Collateral Agent, as the case
may be, which is not inconsistent with such direction (which direction, if sent to the Trustee or
the Collateral Agent, as the case may be, shall be in writing).




          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;



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     (2) subject to Section 2.09. Holders of at least 25% in principal amount 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 reasonably 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
of the outstanding Notes do not give the Trustee a written 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 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 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.




          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, subject to the Intercreditor
Agreement, 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 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 reasonable 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.




          The Trustee and the Collateral Agent are 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 or
the Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements
and




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advances of the Trustee, the Collateral Agent, their respective 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, subject to the
Intercreditor Agreement, 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 or Collateral Agent and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee or Collateral Agent any amount due to it
for the reasonable compensation, expenses, taxes, disbursements and advances of the Trustee, the
Collateral Agent, their respective agents and counsel, and any other amounts due any such Person
under the Collateral Agreements and Section 7.07. The Company’ 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 or Collateral Agent 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 or the Collateral Agent, as the case may be, to vote in respect of the
claim of any Holder in any such proceeding.




          SECTION 6.10. Priorities.




          If the Trustee collects any money or property pursuant to this Article Six, it shall
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 or the Collateral Agent, as the case may
be, and the costs and expenses of collection);




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




     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 written 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 or the Collateral Agent, as the case may be, for any
action taken or omitted by it as Trustee or the Collateral Agent, as the case may be, 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 or the Collateral Agent, as the case may be, a suit by a




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Holder pursuant to Section 6.06, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Notes.




          SECTION 6.12. Restoration of Rights and Remedies.




          If the Trustee, the Collateral Agent 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, the Collateral Agent or to such
Holder, then and in every such case, subject to any determination in such proceeding, the Company,
the Trustee, the Collateral Agent and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the Trustee, the
Collateral Agent 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.




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 or in any Collateral Agreement. 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:




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     (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.



          (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)(l), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(l), 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 relate to the Trustee is subject to paragraphs (a), (b),
(c) and (d) of this Section 7.01.




          (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.




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          (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 of its
selection 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 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) Neither the Trustee nor the Collateral Agent, as the case may be, will be under
any obligation to exercise any of the rights or powers vested in it by this Indenture or any
Collateral Agreement 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 or the Collateral Agent, as
the case may be, reasonable indemnity satisfactory to the Trustee or Collateral Agent, as the case may be,
against the costs, expenses and liabilities which may be incurred by it in compliance with such request,
order or direction.




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




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          (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 a 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, in the event the Trustee acquires any conflicting interest as defined
under the TIA, it shall eliminate the conflict or resign in accordance with the procedures set
forth in TIA Section 310(b). Further, 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.




          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




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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 in its possession or control or in the possession or control of any agent or bailee
or any income thereon or as to preservation of rights against prior parties or any other rights
pertaining thereto and the Trustee shall not be responsible for filing any financing or
continuation statements or recording any documents or instruments in any public office at any time
or times or otherwise perfecting or maintaining the perfection of any security interest in the
Collateral. The Trustee 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 and shall not be liable or responsible for any loss or diminution
in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding
agency or other agent or bailee selected by the Trustee in good faith.




          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 Castrol 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 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, 2007, 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).




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          A copy of each report at the time of its mailing to Holders shall be mailed to the Company and
filed by the Trustee 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 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, jointly and severally, 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 or any Guarantor (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 or in connection with enforcing the provisions of this Section
7.07 (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 and each Guarantor’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 or the Collateral Agent, in its capacity as such, 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 or held in the Escrow Account.




          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




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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 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




     (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 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 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




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aggregate principal amount 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.




          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.




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          SECTION 7.12. Trustee as Collateral Agent and Paying Agent.




          References to the Trustee in Sections 7.01(f), 7.02, 7.03,
7.07 and 7.8 and the first paragraph of Section 7.09 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 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 as
the initial Collateral Agent and The Bank of New York 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.




          (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



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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.



          SECTION 7.14. Force Majeure.




          In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.




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, the Guarantees and the
Collateral Agreements 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 clause (i) and (ii) below, and the Company and the Guarantors shall be deemed
to have satisfied all their other obligations under such Notes and this Indenture, the Guarantees and
the Collateral Agreements, 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, and interest 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




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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 Sections 4.05 and 4.08,
Sections 4.10 through 4.23 (provided that the release and discharge of the Company’s
obligations under Section 4.23 shall in no way relieve the
Company of its obligation to pay any Additional Interest when due and payable) and clause
(2) of the first paragraph of Section 5.01 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 and the Guarantees, 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
6.0.1, 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 paragraph
(d) below, Section 6.01(3) (solely as such Section 6.01(3) pertains to Sections 4.05 and
4.08, Sections 4.10 through 4.23 (provided that the release and discharge of the Company’s obligations under
Section 4.23 shall in no way relieve the Company of its obligation to pay any Additional Interest when due and payable) and
clause (2) of the first paragraph of Section 5.01), 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, and interest 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



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manner and at the same times as would have been the case if such Legal Defeasance had
not occurred;




     (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 or Section 4.16
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 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; and




     (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.


Notwithstanding the foregoing, the Opinion of Counsel required by Section 8.01(d)(2) 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, this Indenture (subject to
Section 8.03) and the Collateral Agreements will be discharged and will cease to be of
further effect as to all outstanding Notes, 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



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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




     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, and interest 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 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




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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 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 and each
Guarantor’s obligations under this Indenture, the Collateral Agreements, the Guarantees 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 Collateral Agreements, the Notes, and the Guarantees:





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     (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 accordance with Section 5.01 or Section 10.04, as the case
may be;




     (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 or the Collateral Agreements;






     (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 or the Collateral Agreements;





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





     (9)
to conform the text of this Indenture, the Notes, the Guarantees or the Collateral Agreements to any provision of the “Description of the Notes” in the Offering Circular,
to the extent that such provision was intended to be a verbatim
recitation of a provision of Indenture, the Notes, the Guarantees or the Collateral Agreements; or
this





     Notwithstanding the foregoing, in formulating its opinion in regards to this Section
9.01 the Trustee or the Collateral Agent, as applicable, is entitled to conclusively 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 of the outstanding Notes (subject to Section 2.09),
may amend or supplement this Indenture, the Notes, the Collateral 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 of the outstanding Notes may waive
compliance by the Company with any provision of this Indenture, the Collateral Agreements or the
Notes without notice to any other Holder. However, no amendment, supplement or waiver, including a
waiver pursuant to Section 6.04, shall




(a) without the consent of each Holder affected thereby, no amendment may:




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




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



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(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, or premium, if any, or interest 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 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 modify any of the provisions or definitions with
respect
thereto;




(7) subordinate the Notes or any Guarantee in right of payment to, or the Liens
granted under the Collateral Agreements to any Lien on (i) the Escrow Account or any
funds or investment property on deposit therein or credited thereto or (ii) except
as otherwise provided in the Intercreditor Agreement with respect to Liens on the First
Priority Collateral that secure the First Priority Claims, all or substantially all
of the other Collateral to secure, 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;




(9) release the Lien on the Escrow Account or any funds or investment property on
deposit therein or credited thereto otherwise than in accordance with the terms of
the Indenture and the Collateral Agreements; or




(10) make any change to Section 9.01 or this Section 9.02; and




          (b) without the consent of the Holders holding at least 75% in aggregate
principal amount of the Notes, no amendment may release all or substantially all of
the Collateral otherwise than in accordance with the terms of the Indenture and the
Collateral Agreements.



          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.




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          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 and to the extent provided for in the
applicable consent solicitation documentation, 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 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 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 clauses 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 and/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 the case may be, may, but shall not be obligated to, execute
any such amendment, supplement or waiver which adversely affects the rights, duties or immunities
of the Trustee or the Collateral Agent,




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as the case may be, under this Indenture or any Collateral Agreement. The Trustee or the Collateral
Agent, as the case may be, 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 also state that the amendment or
supplement is a valid and enforceable obligation of the Company. Such Opinion of Counsel shall
not be an expense of the Trustee or the Collateral Agent, as the case may be, 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 (including interest accruing at the then applicable rate provided in this
Indenture, the Notes, the Guarantees and any Collateral Agreement after the occurrence of any Event
of Default set forth in Section 6.01(6) or (7), whether or not a claim for
post-filing or post-petition interest is allowed under applicable law following the institution of
a proceeding under bankruptcy, insolvency or similar laws), 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 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,


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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 Company or any of its Domestic Restricted
Subsidiaries or (b) such Guarantor ceases to be a Restricted Subsidiary, and the Company otherwise
complies, to the extent applicable, with Section 4.16, or




     (2) if the Company 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




     (4) upon satisfaction and discharge of this Indenture or payment in full of the
principal of, and premium, if any, and accrued and unpaid interest 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. At the Company’s request and expense, the Trustee will
execute and deliver an instrument evidencing such release. 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


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




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          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.




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:




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          if to the Company:



          Broadview Networks Holdings, Inc.

          800 Westchester Avenue

          Suite N-501

          Rye Brook, New York 10573

          Attention: General Counsel

          Facsimile Number: (914) 742-5818



          if to the Trustee:



          The Bank of New York

          101 Barclay Street, 8W

          New York, New York 10286

          Attn: Corporate Trust Administration

          Facsimile Number: (212) 815-4770



          if to the Collateral Agent:



          The Bank of New York

          101 Barclay Street, 8W

          New York, New York 10286

          Attn: Corporate Trust Administration

          Facsimile Number: (212) 815-4770




          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).




          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).




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          SECTION 11.04. Certificate and Opinion as to Conditions Precedent.




     Upon any request or application by the Company or any Guarantor to the Trustee or the
Collateral Agent, as the case may be, to take any action under this Indenture, the Notes, the
Guarantees or any Collateral Agreement, the Company shall furnish to the Trustee or the
Collateral Agent, as the case may be, upon request:



          (a) an Officers’ Certificate, in form and substance reasonably satisfactory to the
Trustee or the Collateral Agent, as the case may be, 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, any Collateral Agreement, the Notes or the
Guarantees relating to the proposed action have been complied with; and




          (b) 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 relating to the proposed action have been complied
with.




          SECTION 11.05. Statements Required in Certificate or Opinion.




          Each certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture 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 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.




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          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, THE NOTES,
THE GUARANTEES, THE COLLATERAL AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED BY 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.




          No past, present or future affiliate, director, officer, employee, incorporator or holder of
any equity interests in the Company or a Guarantor or any direct or indirect parent corporation of
the Company or a Guarantor, as such, will have any liability for any obligations of the Company
under the Notes, the Guarantees or the Indenture, or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the consideration for issuance of
the Notes. The parties hereto acknowledge that such waiver may not be effective to waive
liabilities under the federal securities laws.




          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,


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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 COLLATERAL
AGREEMENTS, 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) Each Holder, by its acceptance of a Note, consents and agrees to the terms of each
Collateral Agreement and Intercreditor Agreements, 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 this Indenture and the Collateral Agreements and to perform its
obligations and exercise its rights thereunder in accordance therewith. The Company shall, and
shall cause each of its Domestic Restricted Subsidiaries to, do or cause to be done, at its sole
cost and expense, all such actions . and things as may be required by the provisions of the
Collateral Agreements, to assure and confirm to the Collateral Agent the security interests in the
Collateral contemplated by the Collateral Agreements, as from time to time constituted, so as to
render the same available for the security and benefit of this Indenture and of the Notes and
Guarantees secured hereby, according to the intent and purpose herein and therein expressed and
subject to the Intercreditor Agreements, including taking all commercially reasonable actions
required or as may be reasonably requested by the Collateral Agent to cause the Collateral
Agreements to create and maintain, as security for the Obligations contained in this Indenture, the
Notes, the Collateral Agreements and the Guarantees valid and enforceable, perfected (to the extent
required therein) security interests in and on all the Collateral, in favor of the Collateral
Agent, superior to and prior to the rights of all third Persons other than as set forth in the
Senior Intercreditor Agreement, and subject to no other Liens, in each case, except as expressly
provided herein or therein. If required for the purpose of meeting the legal requirements of any
domestic jurisdiction in which any of the Collateral may at the time be located, the Company, the
Trustee and the Collateral Agent shall have the power to appoint, and shall take all reasonable
action to appoint, one or more Persons approved by the Trustee and reasonably acceptable to the
Company to act as co-Collateral Agent with respect to any such Collateral, with such rights and
powers limited to those deemed necessary for the Company, the Trustee or the Collateral Agent to
comply with any such legal requirements with respect to such Collateral, and which rights and
powers shall not be inconsistent with the provisions of this Indenture, the Notes, the Guarantees
or any Collateral Agreement. The Company shall from time to time promptly pay all reasonable
financing and continuation statement recording and/or filing fees, charges and taxes relating to


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this Indenture, the Collateral Agreements and any amendments hereto or thereto and
any other instruments of further assurance required pursuant hereto or thereto.




          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 furnish to the Trustee and the Collateral Agent, at such time
as required by TIA Section 314(b) an Opinion of Counsel either (i) stating that, in the
opinion of such counsel, this Indenture and the Collateral Agreements, financing statements and fixture
filings then executed and delivered, as applicable, and all other instruments of further assurance or
amendment then executed and delivered have been properly recorded, registered and filed to the extent
necessary to perfect the security interests created by this Indenture and the Collateral Agreements and reciting
the details of such action or referring to prior Opinions of Counsel in which such details are given, and
stating that as to such Collateral Agreements and such other instruments, such recording, registering and filing
are the only recordings, registerings and filings necessary to perfect such security interest and that no
re-recordings, re-registerings, or re-filings are necessary to maintain such perfection, and further stating
that all financing statements and continuation statements have been filed are necessary fully to
preserve and protect the rights of and perfect such security interests of the Collateral Agent for the
benefit of itself, the Trustee and the Holders, under the Collateral Agreements or (ii) stating that, in the Opinion
of such Counsel, no such action is necessary to perfect any security interest created under this
Indenture, the Notes or any of the Collateral Agreements as intended by this Indenture, the Notes or any such
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 August 15 of each year, commencing August 15, 2006, an
Opinion of Counsel either (i) stating that, in the opinion of such counsel, all action
necessary to perfect or continue the perfection of 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 or continue the perfection of any security interest created under any of the Collateral Agreements. Each
of the Company and the Guarantors shall comply with Section 4.2(c) of the Security Agreement
on such dates as an Opinion of Counsel is required to be furnished pursuant to this clause (b).




          (c) The Opinions of Counsel furnished pursuant to clause (a) or (b) above
may contain such qualifications and limitations as are customary for opinions of such type.




          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.





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          (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) 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


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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 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 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 quitclaim 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.




          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.




          The Bank of New York is hereby appointed to act in its capacity as the Collateral Agent.
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 in violation of any provision of any Collateral Agreement or this Indenture,
and suits and proceedings as the Collateral Agent may deem


-87-









 







expedient to preserve or protect its interests and the interests of the Trustee and the Holders in
the Collateral. 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.






-88-









 








SIGNATURES




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




	 	 	 	 	 
	 	BROADVIEW NETWORKS HOLDINGS,

INC.

 	 
	 	By:  	/s/ Corey Rinker
 	 
	 	 	Name:  	COREY RINKER 	 
	 	 	Title:  	CFO 	 
	 
	 	THE BANK OF NEW YORK, as Trustee

and Collateral Agent

 	 
	 	By:  	/s/ Geovanni Barris
 	 
	 	 	Name:  	GEOVANNI BARRIS 	 
	 	 	Title:  	VICE PRESIDENT 	 
	 



Indenture





 









 








	 	 	 	 	 
	 	GUARANTORS:



BRIDGECOM HOLDINGS, INC.

 	 
	 	By:  	/s/ Corey Rinker
 	 
	 	 	Name:  	COREY RINKER 	 
	 	 	Title:  	CFO 	 
	 
	 	BRIDGECOM INTERNATIONAL, INC.

 	 
	 	By:  	/s/ Corey Rinker
 	 
	 	 	Name:  	COREY RINKER 	 
	 	 	Title:  	CFO 	 
	 
	 	BRIDGECOM SOLUTIONS GROUP, INC.

 	 
	 	By:  	/s/ Corey Rinker
 	 
	 	 	Name:  	COREY RINKER 	 
	 	 	Title:  	CFO 	 
	 
	 	TRUCOM CORPORATION

 	 
	 	By:  	/s/ Corey Rinker
 	 
	 	 	Name:  	COREY RINKER 	 
	 	 	Title:  	CFO 	 
	 
	 	OPEN SUPPORT SYSTEMS, LLC

 	 
	 	By:  	/s/ Corey Rinker
 	 
	 	 	Name:  	COREY RINKER 	 
	 	 	Title:  	CFO 	 
	 
	 	BROADVIEW NP ACQUISITION CORP.

 	 
	 	By:  	/s/ Corey Rinker
 	 
	 	 	Name:  	COREY RINKER 	 
	 	 	Title:  	CFO 	 
	 



Indenture




 









 








	 	 	 	 	 
	 	BROADVIEW NETWORKS, INC.

 	 
	 	By:  	/s/ Corey Rinker
 	 
	 	 	Name:  	COREY RINKER 	 
	 	 	Title:  	CFO 	 
	 
	 	BROADVIEW NETWORKS OF MASSACHUSETTS, INC.

 	 
	 	By:  	/s/ Corey Rinker
 	 
	 	 	Name:  	COREY RINKER 	 
	 	 	Title:  	CFO 	 
	 
	 	BROADVIEW NETWORKS OF VIRGINIA, INC.

 	 
	 	By:  	/s/ Corey Rinker
 	 
	 	 	Name:  	COREY RINKER 	 
	 	 	Title:  	CFO 	 
	 
	 	BV-BC ACQUISITION CORP.

 	 
	 	By:  	/s/ Corey Rinker
 	 
	 	 	Name:  	COREY RINKER 	 
	 	 	Title:  	CFO 	 
	 



Indenture





 









 





EXHIBIT A




[FORM OF INITIAL NOTE AND ADDITIONAL NOTE]



THIS SECURITY HAS NOT BEEN REGISTERED 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 OR 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)(l), (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 WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD THAT MAY BE HEREINAFTER
PROVIDED UNDER RULE 144(K) UNDER THE SECURITIES ACT PERMITTING RESALES OF RESTRICTED SECURITIES BY
NON-AFFILIATES WITHOUT RESTRICTION) (THE “RESALE RESTRICTION TERMINATION DATE”) AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH BROADVIEW NETWORKS HOLDINGS, INC. OR ANY
AFFILIATE OF BROADVIEW NETWORKS HOLDINGS, INC. WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), ONLY (A) TO BROADVIEW NETWORKS HOLDINGS, INC. OR ANY OF ITS SUBSIDIARIES, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) 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 WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A)(l), (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, (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,


A-1









 






SUBJECT TO THE RIGHT OF BROADVIEW NETWORKS HOLDINGS, INC. AND THE TRUSTEE, OR OF THE TRANSFER
AGENT, AS APPLICABLE, PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, 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-2









 








BROADVIEW NETWORKS HOLDINGS, INC.




113/8% SENIOR SECURED NOTES DUE 2012




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






     Broadview Networks Holdings, Inc., a Delaware 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 September 1,
2012, and to pay interest thereon as hereinafter set forth.



          Interest Rate: 113/8%




          Interest Payment Dates: Interest will be payable semi-annually in cash in arrears on March 1
and September 1 of each year, beginning on March 1, 2007.




          Record Dates: February 15 and August 15.




          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.




	 	 	 	 	 
	 	BROADVIEW NETWORKS HOLDINGS, INC. 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated: August 23, 2006






A-3









 








TRUSTEE CERTIFICATE OF AUTHENTICATION




          This is one of the
113/8% Senior Secured Notes due 2012 referred to in
the within-mentioned Indenture.




	 	 	 	 	 
	 	THE BANK OF NEW YORK, as Trustee

 	 
	Dated: August 23, 2006 	By:  	

 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



A-4









 






	 	 	 	 	 



(REVERSE OF SECURITY)




113/8% Senior Secured Note due 2012




          1. Interest. Broadview Networks Holdings, Inc., a Delaware 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 Issue Date. The Company will pay
interest semi-annually in arrears on each Interest Payment Date, commencing March 1, 2007. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company will
pay interest on overdue principal at 1% per annum in excess of the above rate and will pay interest
on overdue installments of interest as such higher rate to the extent lawful. Additional Interest
may accrue on this Note in certain circumstances pursuant to the Registration Rights Agreement and
all references to “interest” in this Note shall include any Additional Interest due on this Note
pursuant to the terms of the Registration Rights Agreement.





     [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 (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
August 23, 2006 (the “Indenture”), among the Company, the Guarantors named therein, the
Trustee and the Collateral Agent. 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





A-5









 






TIA for a statement of such terms. The Notes are senior 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.




          (a) Optional Redemption Prior to September 1, 2009. The Company may redeem the Notes,
at its option, in whole or in part at any time prior to September 1, 2009, upon not less than 30
nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the
Notes being redeemed plus the Applicable Premiums, as of, and accrued and unpaid interest, if any,
to the Redemption Date.




          (b) Optional Redemption On or After September 1, 2009. The Company may redeem the
Notes for cash, at its option, in whole or in part at any time on or after September 1, 2009, upon
not less than 30 nor more than 60 days’ notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month period commencing
on September 1 of the year set forth below:




	 	 	 	 	 
	Year	 	Percentage
	 
	 	 	 	 
	2009
	 	 	105.688	%
	2010
	 	 	102.844	%
	2011 and thereafter
	 	 	100.000	%






     In addition, the Company must pay accrued and unpaid interest on the aggregate principal
amount of the Notes redeemed.



          (c) Optional Redemption Upon a Change of Control. At any time on or prior to September
1, 2009, 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 111.375% of the principal amount
of the Notes as of the Redemption Date, plus accrued and unpaid interest thereon 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 the Company’s 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.




          (d) Optional Redemption Upon Equity Offerings. At any time, or from time to time, on
or prior to September 1, 2009, 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
of the Notes (including Additional Notes, if any) originally issued under this Indenture at a
redemption price of 111.375% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon to the Redemption Date; provided that:





A-6









 










          (1) at least 65% of the principal amount of Notes (including
Additional Notes, if any) originally 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.



          (e) Mandatory Redemption




     The Company shall not be required to any make mandatory redemption or sinking fund payments
with respect to the Notes, except as set forth in Section 5(f) below.



          (f) Escrow Redemption If the Escrow Redemption Date shall occur prior to the
satisfaction of the Conditions for Release, the Company will be required to redeem Notes in an
aggregate principal amount of $95.0 million on the Escrow Redemption Date at par plus accrued and
unpaid interest thereon to the Escrow Redemption Date. Following the consummation of the redemption
set forth in this Section 5(f), any funds remaining in the Escrow Account shall be released
to the Company, which funds may be used by the Company for general corporate purposes otherwise
permitted by the Indenture.




          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 of Notes that have denominations larger than $1,000.




          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, the Notes called for
redemption will cease to bear interest from and after such Redemption Date, 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 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.




          
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          8. Registration Rights. Pursuant to the Registration Rights Agreement among the
Company, the Guarantors and the Initial Purchaser, the Company will be obligated to consummate an
Exchange Offer. Upon such Exchange Offer, the Holders of Notes shall have the right, subject to
compliance with securities laws, to exchange such Notes for 113/8% Senior Secured Notes
due 2012, 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 and the Collateral Agreements may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount 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 of
the Notes then outstanding. Without consent of any Holder, the parties thereto may amend or
supplement the Indenture, the Notes, the Guarantees, or the Collateral Agreements to, among other
things, cure any ambiguity, defect or inconsistency, provide for uncertificated Notes in addition
to or in place of certificated Notes, provide for the assumption of the Company’s or any
Guarantor’s obligations in accordance with Section 5.01 and Section 10.04 of the
Indenture, make any other change that would provide any additional rights or benefits to the
Holders that does not adversely affect in any material respect the legal rights of any Holder of a
Note, to comply with the TIA, to allow for additional guarantees, if




          
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necessary, in connection with any addition or release of Collateral permitted under the Indenture
or the Collateral Agreements, to release a Guarantor from its Guarantee as permitted by the
Indenture and to conform the text of the Indenture, the Collateral Agreements, the Notes and the
Guarantees to the Offering Circular if necessary.




          14. Restrictive Covenants. The Indenture imposes certain limitations on the ability of
the Company 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 (other than
certain events of bankruptcy involving the Company), the Trustee or the Holders of at least 25% in
aggregate principal amount 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 reasonable indemnity satisfactory to it.
The Indenture permits, subject to certain limitations therein provided, Holders of a majority in
aggregate principal amount 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 affiliate, director,
officer, employee, incorporator or holder of any equity interests in the Company or a Guarantor or
any direct or indirect parent corporation of the Company or a Guarantor, as such, will have any
liability for any obligations of the Company or a Guarantor under the Notes, the Guarantees or the
Indenture, or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes. Each of the parties
hereto acknowledge that such waiver may not be effective to waive liabilities under the federal
securities laws.




          
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          19. Guarantees. Payment of principal and interest (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. THIS NOTE, THE INDENTURE 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 NOTE, THE INDENTURE, THE GUARANTEES,
THE COLLATERAL AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE.




          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: Broadview Networks Holdings, Inc., 800
Westchester Avenue, Suite N-501, Rye Brook, New York 10573.




          
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FORM OF GUARANTEE




          The undersigned and its successors under the Indenture has irrevocably and unconditionally
guaranteed, on a senior secured basis to the extent set forth in the Indenture, dated as of August
23, 2006, by and among Broadview Networks Holdings, Inc. (the “Company”), the Guarantors
and Bank of New York, as Trustee and Collateral Agent (the “Indenture”), (i) the due and
punctual payment of the principal of, premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue
principal of (including interest accruing at the then applicable rate provided in the Indenture,
the Notes, the Guarantees or any Collateral Agreement after the occurrence of any Event of Default
set forth in Section 6.01(6) or (7) of the Indenture, whether or not a claim for
post-filing or post-petition interest is allowed under applicable law following the institution of
a proceeding under bankruptcy, insolvency or similar law) and interest 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:  	 	 
	 




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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) August 23, 2008, 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)o 	 	to the Company or a subsidiary thereof; or

	 
	(2)o 	 	pursuant to and in compliance with Rule 144A under the Securities Act; or
	 
	(3)o 	 	to an institutional “accredited investor” (as defined in Rule 501(a)(l), (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)o 	 	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)o 	 	pursuant to the exemption from registration provided by Rule 144 under the Securities
Act; or
	 
	(6)o 	 	pursuant to an effective registration statement under the Securities Act.




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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:                                                             




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 	 
	 	 	 



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[OPTION OF HOLDER TO ELECT PURCHASE]




          If you want to elect to have this Note purchased by the Company pursuant to Section
4.15 or Section 4.16 of the Indenture, check the appropriate box:




               Section 4.15 o




               Section 4.16 o




          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: ____________________________ 	 



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EXHIBIT B 




[FORM OF EXCHANGE NOTE]




BROADVIEW NETWORKS HOLDINGS, INC.




113/8% SENIOR SECURED NOTES DUE 2012




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






     Broadview Networks Holdings, Inc., a Delaware 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 September 1, 2012, and to pay interest thereon as
hereinafter set forth.



          Interest Rate: 113/8%




          Interest Payment Dates: Interest will be payable semi-annually in cash in arrears on March 1
and September 1 of each year, beginning on March 1, 2007.




          Record Dates: February 15 and August 15.




          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.




	 	 	 	 	 
	 	BROADVIEW NETWORKS HOLDINGS, INC. 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Dated: August 23, 2006





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TRUSTEE CERTIFICATE OF AUTHENTICATION




          This is one of the 113/8% Senior Secured Notes due 2012 referred to in
the within-mentioned Indenture.




	 	 	 	 	 
	 	THE BANK OF NEW YORK, as Trustee 

 	 
	Dated: August 23, 2006 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



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(REVERSE OF SECURITY)




113/8% Senior Secured Note due 2012




          1. Interest. Broadview Networks Holdings, Inc., a Delaware 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 Issue Date. The Company will pay
interest semi-annually in arrears on each Interest Payment Date, commencing March 1, 2007. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company will
pay interest on overdue principal at 1% per annum in excess of the above rate and will pay interest
on overdue installments of interest as such higher rate to the extent lawful.





     [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 (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
August 23, 2006 (the “Indenture”), among the Company, the Guarantors named therein, the
Trustee and the Collateral Agent. 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 secured obligations of the Company.





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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.




          (a) Optional Redemption Prior to September 1, 2009. The Company may redeem the Notes,
at its option, in whole or in part at any time prior to September 1, 2009, upon not less than 30
nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the
Notes being redeemed plus the Applicable Premiums, as of, and accrued and unpaid interest, if any,
to the Redemption Date.




          (b) Optional Redemption On or After September 1, 2009. The Company may redeem the
Notes for cash, at its option, in whole or in part at any time on or after September 1, 2009, upon
not less than 30 nor more than 60 days’ notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month period commencing
on September 1 of the year set forth below:




	 	 	 	 	 
	Year	 	Percentage
	 
	 	 	 	 
	2009
	 	 	105.688	%
	2010
	 	 	102.844	%
	2011 and thereafter
	 	 	100.000	%






     In addition, the Company must pay accrued and unpaid interest on the aggregate principal
amount of the Notes redeemed.



          (c) Optional Redemption Upon a Change of Control. At any time on or prior to September
1, 2009, 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 111.375% of the principal amount
of the Notes as of the Redemption Date, plus accrued and unpaid interest thereon thereon 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 the Company’s 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.




          (d) Optional Redemption Upon Equity Offerings. At any time, or from time to time, on
or prior to September 1, 2009, 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
of the Notes (including Additional Notes, if any) originally issued under this Indenture at a
redemption price of 111.375% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon to the Redemption Date; provided that:





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



B-4









 






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



          (e) Mandatory Redemption




     The Company shall not be required to any make mandatory redemption or sinking fund payments
with respect to the Notes, except as set forth in Section 5(f) below.



          (f) Escrow Redemption If the Escrow Redemption Date shall occur prior to the
satisfaction of the Conditions for Release, the Company will be required to redeem Notes in an
aggregate principal amount of $95.0 million on the Escrow Redemption Date at par plus accrued and
unpaid interest thereon to the Escrow Redemption Date. Following the consummation of the redemption
set forth in this Section 5(f), any funds remaining in the Escrow Account shall be released
to the Company, which funds may be used by the Company for general corporate purposes otherwise
permitted by the Indenture.




          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 rate 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 of Notes that have denominations larger than $1,000.




          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, the Notes called for
redemption will cease to bear interest from and after such Redemption Date, 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 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





B-5









 







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, the Guarantees and the Collateral Agreements may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount 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 of
the Notes then outstanding. Without consent of any Holder, the parties thereto may amend or
supplement the Indenture, the Notes, the Guarantees, or the Collateral Agreements to, among other
things, cure any ambiguity, defect or inconsistency, provide for uncertificated Notes in addition
to or in place of certificated Notes, provide for the assumption of the Company’s or any
Guarantor’s obligations in accordance with Section 5.01 and Section 10.04 of the
Indenture, make any other change that would provide any additional rights or benefits to the
Holders that does not adversely affect in-any material respect the legal rights of any Holder of a
Note, to comply with the TIA, to allow for additional guarantees, if necessary, in connection with
any addition or release of Collateral permitted under the Indenture or the Collateral Agreements,
to release a Guarantor from its Guarantee as permitted by the Indenture and to conform the text of
the Indenture, the Collateral Agreements, the Notes and the Guarantees to the Offering Circular if
necessary.




          13. Restrictive Covenants. The Indenture imposes certain limitations on the ability of
the Company 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.





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          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.




          15. Defaults and Remedies. If an Event of Default occurs and is continuing (other than
certain events of bankruptcy involving the Company), the Trustee or the Holders of at least 25% in
aggregate principal amount 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 reasonable indemnity satisfactory to it.
The Indenture permits, subject to certain limitations therein provided, Holders of a majority in
aggregate principal amount 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 affiliate, director,
officer, employee, incorporator or holder of any equity interests in the Company or a Guarantor or
any direct or indirect parent corporation of the Company or a Guarantor, as such, will have any
liability for any obligations of the Company or a Guarantor under the Notes, the Guarantees or the
Indenture, or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes. Each of the parties
hereto acknowledge that such waiver may not be effective to waive liabilities under the federal
securities laws.




          18. Guarantees. Payment of principal and interest (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. THIS NOTE, THE INDENTURE 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 NOTE, THE INDENTURE, THE GUARANTEES,
THE COLLATERAL AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE.






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          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: Broadview Networks Holdings, Inc., 800
Westchester Avenue, Suite N-501, Rye Brook, New York 10573.






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FORM OF GUARANTEE




          The undersigned and its successors under the Indenture has irrevocably and unconditionally
guaranteed, on a senior secured basis to the extent set forth in the Indenture, dated as of August
23, 2006, by and among Broadview Networks Holdings, Inc. (the “Company”), the Guarantors
and Bank of New York, as Trustee and Collateral Agent (the “Indenture”), (i) the due and
punctual payment of the principal of, premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue
principal of (including interest accruing at the then applicable rate provided in the Indenture,
the Notes, the Guarantees or any Collateral Agreement after the occurrence of any Event of Default
set forth in Section 6.01(6) or (7) of the Indenture, whether or not a claim for
post-filing or post-petition interest is allowed under applicable law following the institution of
a proceeding under bankruptcy, insolvency or similar law) and interest 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:  	 	 



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[OPTION OF HOLDER TO ELECT PURCHASE]




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.15
or Section 4.16 of the Indenture, check the appropriate box:




               Section 4.15 o




               Section 4.16 o




          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: _________________________ 	 
	 		 



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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-11









 




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
101 Barclay Street, 8W
New York, NY 10286
Attn: Geovanni Barris



	 	Re: 	 	 113/8% Senior Secured Notes
due 2012 (the “Notes”) of Broadview
 Networks Holdings, Inc. (the
“Company”)





Ladies and Gentlemen:


          In connection with our proposed purchase of $                     aggregate principal amount of the Notes, we confirm that:



          1. We have received a copy of the Offering Circular (the “Offering Circular”),
dated August 15, 2006, 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 August 23, 2006, 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



D-1









 





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.


          4. Either (1) we are not, and will not transfer the notes to, an entity holding “plan assets,”
within the meaning of 29 C.F.R. 2510.3-101, of any “employee benefit plan” within the meaning of
Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“ERISA”), or any “plan”
within the meaning of Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or
(2) our purchase and holding of the notes will not result in a non-exempt prohibited transaction
under ERISA or Section 4975 of the Code (or any substantially similar applicable law).


          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)(l), (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.


D-2








 






	 	 	 	 	 	 	 
	 	 	Very truly yours,
[Name of Transferee]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Signature
	 	 





D-3








 





EXHIBIT E


Form of Certificate To Be
Delivered in Connection with
Transfers Pursuant to Regulation S


 The Bank of New York 
101 Barclay Street, 8W 
New York, NY 10286 
Attn: Geovanni Barris



	 	Re:  	 	113/8% Senior Secured Notes due 2012 (the “Notes”) of Broadview Networks Holdings, Inc. (the “Company”)

	 	 	 	 





Ladies and Gentlemen:


          In connection with our proposed sale of $___________ aggregate principal
amount 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