EXHIBIT 4.4


 


FORM OF INDENTURE TO
BE ENTERED INTO BETWEEN


 


THE COMPANY AND THE TRUSTEE


 


 




 





FAIRPOINT COMMUNICATIONS,
INC.


 










 


INDENTURE


 


Dated as of [              ],
200[   ]


 


 










 


[                                             ]


 


Trustee


 


SUBORDINATED DEBT SECURITIES




 





 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE I.

  	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE SECTION 1

  	
   

  
	
  Section 1.1.

  	
  Definitions

  	
   

  
	
  Section 1.2.

  	
  Other Definitions

  	
   

  
	
  Section 1.3.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
   

  
	
  Section 1.4.

  	
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  THE SECURITIES

  	
   

  
	
  Section 2.1.

  	
  Issuable in Series

  	
   

  
	
  Section 2.2.

  	
  Establishment
  of Terms of Series of Securities

  	
   

  
	
  Section 2.3.

  	
  Execution and
  Authentication

  	
   

  
	
  Section 2.4.

  	
  Registrar and Paying Agent

  	
   

  
	
  Section 2.5.

  	
  Paying Agent to
  Hold Money in Trust

  	
   

  
	
  Section 2.6.

  	
  Securityholder Lists

  	
   

  
	
  Section 2.7.

  	
  Transfer and Exchange

  	
   

  
	
  Section 2.8.

  	
  Mutilated,
  Destroyed, Lost and Stolen Securities

  	
   

  
	
  Section 2.9.

  	
  Outstanding Securities

  	
   

  
	
  Section 2.10.

  	
  Treasury Securities

  	
   

  
	
  Section 2.11.

  	
  Temporary Securities

  	
   

  
	
  Section 2.12.

  	
  Cancellation

  	
   

  
	
  Section 2.13.

  	
  Defaulted Interest

  	
   

  
	
  Section 2.14.

  	
  Global Securities

  	
   

  
	
  Section 2.15.

  	
  CUSIP Numbers

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  REDEMPTION

  	
   

  
	
  Section 3.1.

  	
  Notice to Trustee

  	
   

  
	
  Section 3.2.

  	
  Selection of
  Securities to be Redeemed

  	
   

  
	
  Section 3.3.

  	
  Notice of Redemption

  	
   

  
	
  Section 3.4.

  	
  Effect of Notice of
  Redemption

  	
   

  
	
  Section 3.5.

  	
  Deposit of Redemption Price

  	
   

  
	
  Section 3.6.

  	
  Securities Redeemed in Part

  	
   

  
				



 


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  ARTICLE IV.

  	
  COVENANTS

  	
   

  
	
  Section 4.1.

  	
  Payment of Principal
  and Interest

  	
   

  
	
  Section 4.2.

  	
  SEC Reports

  	
   

  
	
  Section 4.3.

  	
  Compliance Certificate

  	
   

  
	
  Section 4.4.

  	
  Stay, Extension and
  Usury Laws

  	
   

  
	
  Section 4.5.

  	
  Maintenance of Office
  or Agency

  	
   

  
	
  Section 4.6.

  	
  Corporate Existence

  	
   

  
	
  Section 4.7.

  	
  Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  SUCCESSORS

  	
   

  
	
  Section 5.1.

  	
  Successor Corporation
  Substituted

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  DEFAULTS AND
  REMEDIES

  	
   

  
	
  Section 6.1.

  	
  Events of Default

  	
   

  
	
  Section 6.2.

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
   

  
	
  Section 6.3.

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
   

  
	
  Section 6.4.

  	
  Trustee May File
  Proofs of Claim

  	
   

  
	
  Section 6.5.

  	
  Trustee
  May Enforce Claims Without Possession of Securities

  	
   

  
	
  Section 6.6.

  	
  Application of Money
  Collected

  	
   

  
	
  Section 6.7.

  	
  Limitation on Suits

  	
   

  
	
  Section 6.8.

  	
  Unconditional
  Right of Holders to Receive Principal and Interest

  	
   

  
	
  Section 6.9.

  	
  Restoration of
  Rights and Remedies

  	
   

  
	
  Section 6.10.

  	
  Rights and Remedies
  Cumulative

  	
   

  
	
  Section 6.11.

  	
  Delay or Omission Not
  Waiver

  	
   

  
	
  Section 6.12.

  	
  Control by Holders

  	
   

  
	
  Section 6.13.

  	
  Waiver of Past Defaults

  	
   

  
	
  Section 6.14.

  	
  Undertaking for Costs

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  TRUSTEE

  	
   

  
	
  Section 7.1.

  	
  Duties of Trustee

  	
   

  
	
  Section 7.2.

  	
  Rights of Trustee

  	
   

  
	
  Section 7.3.

  	
  Individual Rights of
  Trustee

  	
   

  
	
  Section 7.4.

  	
  Trustee’s Disclaimer

  	
   

  
				



 


ii





















 


	
  Section 7.5.

  	
  Notice of Defaults

  	
   

  
	
  Section 7.6.

  	
  Reports by Trustee to
  Holders

  	
   

  
	
  Section 7.7.

  	
  Compensation and Indemnity

  	
   

  
	
  Section 7.8.

  	
  Replacement of Trustee

  	
   

  
	
  Section 7.9.

  	
  Successor Trustee by
  Merger, etc

  	
   

  
	
  Section 7.10.

  	
  Eligibility;
  Disqualification

  	
   

  
	
  Section 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
  SATISFACTION AND
  DISCHARGE; DEFEASANCE

  	
   

  
	
  Section 8.1.

  	
  Satisfaction
  and Discharge of Indenture

  	
   

  
	
  Section 8.2.

  	
  Application
  of Trust Funds; Indemnification

  	
   

  
	
  Section 8.3.

  	
  Legal
  Defeasance of Securities of any Series

  	
   

  
	
  Section 8.4.

  	
  Covenant Defeasance

  	
   

  
	
  Section 8.5.

  	
  Repayment to Company

  	
   

  
	
  Section 8.6.

  	
  Reinstatement

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  AMENDMENTS
  AND WAIVERS

  	
   

  
	
  Section 9.1.

  	
  Without Consent of Holders

  	
   

  
	
  Section 9.2.

  	
  With Consent of Holders

  	
   

  
	
  Section 9.3.

  	
  Limitations

  	
   

  
	
  Section 9.4.

  	
  Compliance with
  Trust Indenture Act

  	
   

  
	
  Section 9.5.

  	
  Revocation and Effect
  of Consents

  	
   

  
	
  Section 9.6.

  	
  Notation on or
  Exchange of Securities

  	
   

  
	
  Section 9.7.

  	
  Trustee Protected

  	
   

  
	
  Section 9.8.

  	
  Payment for Consent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  MISCELLANEOUS

  	
   

  
	
  Section 10.1.

  	
  Trust Indenture Act
  Controls

  	
   

  
	
  Section 10.2.

  	
  Notices

  	
   

  
	
  Section 10.3.

  	
  Communication
  by Holders with Other Holders

  	
   

  
	
  Section 10.4.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  
	
  Section 10.5.

  	
  Statements
  Required in Certificate or Opinion

  	
   

  
	
  Section 10.6.

  	
  Rules by Trustee and
  Agents

  	
   

  
				



 


iii





















 


	
  Section 10.7.

  	
  Legal Holidays

  	
   

  
	
  Section 10.8.

  	
  No Recourse Against Others

  	
   

  
	
  Section 10.9.

  	
  Counterparts

  	
   

  
	
  Section 10.10.

  	
  Governing Laws

  	
   

  
	
  Section 10.11.

  	
  No
  Adverse Interpretation of Other Agreements

  	
   

  
	
  Section 10.12.

  	
  Successors

  	
   

  
	
  Section 10.13.

  	
  Severability

  	
   

  
	
  Section 10.14.

  	
  Table of Contents,
  Headings, Etc

  	
   

  
	
  Section 10.15.

  	
  Securities
  in a Foreign Currency or in ECU

  	
   

  
	
  Section 10.16.

  	
  Judgment
  Currency

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI.

  	
  SINKING FUNDS

  	
   

  
	
  Section 11.1.

  	
  Applicability of Article

  	
   

  
	
  Section 11.2.

  	
  Satisfaction of Sinking Fund Payments with
  Securities

  	
   

  
	
  Section 11.3.

  	
  Redemption of
  Securities for Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII.

  	
  SUBORDINATION
  OF SECURITIES

  	
   

  
	
  Section 12.1.

  	
  Agreement of Subordination

  	
   

  
	
  Section 12.2.

  	
  Payments to Holders

  	
   

  
	
  Section 12.3.

  	
  Subrogation
  of Securities and Relative Rights

  	
   

  
	
  Section 12.4.

  	
  Authorization to
  Effect Subordination

  	
   

  
	
  Section 12.5.

  	
  Notice to Trustee

  	
   

  
	
  Section 12.6.

  	
  Trustee’s
  Relation to Senior Indebtedness

  	
   

  
	
  Section 12.7.

  	
  No Impairment of
  Subordination

  	
   

  
	
  Section 12.8.

  	
  Article Applicable
  to Paying Agents

  	
   

  
	
  Section 12.9.

  	
  Senior
  Indebtedness Entitled to Rely

  	
   

  
				



 


iv





















 


FAIRPOINT COMMUNICATIONS,
INC.


 


Reconciliation and tie
between TIA and Indenture


 


	
  Section 310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  Section 311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  Not Applicable

  
	
  Section 312(a)

  	
   

  	
  2.6

  
	
  (b)

  	
   

  	
  10.3

  
	
  (c)

  	
   

  	
  10.3

  
	
  Section 313(a)

  	
   

  	
  7.6

  
	
  (b)(1)

  	
   

  	
  7.6

  
	
  (b)(2)

  	
   

  	
  7.6

  
	
  (c)(1)

  	
   

  	
  7.6

  
	
  (d)

  	
   

  	
  7.6

  
	
  Section 314(a)

  	
   

  	
  4.2, 10.5

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  (c)(1)

  	
   

  	
  10.4

  
	
  (c)(2)

  	
   

  	
  10.4

  
	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
  (d)

  	
   

  	
  Not Applicable

  
	
  (e)

  	
   

  	
  10.5

  
	
  (f)

  	
   

  	
  Not Applicable

  
	
  Section 315(a)

  	
   

  	
  7.1

  
	
  (b)

  	
   

  	
  7.5

  
	
  (c)

  	
   

  	
  7.1

  
	
  (d)

  	
   

  	
  7.1

  
	
  (e)

  	
   

  	
  6.14

  
	
  Section 316(a)

  	
   

  	
  2.10

  
	
  a)(1)(A)

  	
   

  	
  6.12

  
	
  a)(1)(B)

  	
   

  	
  6.13

  
	
  b)

  	
   

  	
  6.8

  
	
  Section 317(a)(1)

  	
   

  	
  6.3

  
	
  (a)(2)

  	
   

  	
  6.4

  
	
  (b)

  	
   

  	
  2.5

  
	
  Section 318(a)

  	
   

  	
  10.1

  



 










Note: This reconciliation and tie shall not, for any
purpose, be deemed to be part of the Indenture.


 


v





















 


Indenture dated as of [                      ],
200[   ], between FairPoint Communications, Inc., a
Delaware corporation (the “COMPANY”), and [                                   ],
a [                  ]
banking association (the “TRUSTEE”).


 


Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the
Securities issued from time to time under this Indenture.


 


ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.


 


Section 1.1.                                   Definitions.


 


“ADDITIONAL AMOUNTS” means any additional amounts
which are required hereby or by any Security, under circumstances specified
herein or therein, to be paid by the Company in respect of certain taxes
imposed on Holders specified therein and which are owing to such Holders.


 


“AFFILIATE” of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. 
For the purposes of this definition, “control” (including, with
correlative meanings, the terms “controlled by” and “under common control with”),
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities or
by agreement or otherwise.


 


“AGENT” means any Registrar, Paying Agent, Service
Agent or authenticating agent.


 


“AUTHORIZED NEWSPAPER” means a newspaper in an
official language of the country of publication customarily published at least
once a day for at least five days in each calendar week and of general
circulation in the place in connection with which the term is used.  If it shall be impractical to make any
publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof that is made or given by the
Trustee shall constitute a sufficient publication of such notice.


 


“BEARER” means anyone in possession from time to time
of a Bearer Security.


 


“BEARER SECURITY” means any Security, including any
interest coupon appertaining thereto, that does not provide for the
identification of the Holder thereof.


 


“BOARD OF DIRECTORS” means the Board of Directors of
the Company or any duly authorized committee thereof.


 


“BOARD RESOLUTION” means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have
been adopted by the Board of Directors or pursuant to authorization by the
Board of Directors and to be in full force and effect on the date of the
certificate, and delivered to the Trustee.


 





















 


“BUSINESS DAY” means, unless otherwise provided by
Board Resolution, Officers’ Certificate or supplemental indenture hereto for a
particular Series, any day except a Saturday, Sunday or a legal holiday in The
City of New York or the City of San Francisco on which banking institutions are
authorized or required by law, regulation or executive order to close.


 


“COMPANY” means the party named as such above until a
successor replaces it and thereafter means the successor.


 


“COMPANY ORDER” means a written order signed in the
name of the Company by two Officers, one of whom must be the Company’s chief
executive officer, chief financial officer or principal accounting officer.


 


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


 


“CORPORATE TRUST OFFICE” means the office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered.


 


“DEBT” of any Person as of any date means, without
duplication, all indebtedness of such Person in respect of borrowed money,
including all interest, fees and expenses owed in respect thereto (whether or
not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof), or evidenced by bonds, notes, debentures or similar
instruments.


 


“DEFAULT” means any event which is, or after notice or
passage of time would be, an Event of Default.


 


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


 


“DESIGNATED SENIOR INDEBTEDNESS” means any of the
Company’s Senior Indebtedness that expressly provides that it is “designated
senior indebtedness” for purposes of this Indenture; provided that the
instrument, agreement or other document creating or evidencing such Senior
Indebtedness may place limitations and conditions on the right of such Senior
Indebtedness to exercise the rights of Designated Senior Indebtedness.


 


“DISCOUNT SECURITY” means a Security which is issued
at a price which is less than such Security’s stated principal amount at
maturity.


 


“DOLLARS” means the currency of The United States of
America.


 


2





















 


“ECU” means the European Currency Unit as determined
by the Commission of the European Union.


 


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


 


“FOREIGN CURRENCY” means any currency or currency unit
issued by a government other than the government of The United States of
America.


 


“FOREIGN GOVERNMENT OBLIGATIONS” means with respect to
Securities of any Series that are denominated in a Foreign Currency, (i) direct
obligations of the government that issued or caused to be issued such currency
for the payment of which obligations its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by or acting as an agency or instrumentality
of such government the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by such government, which, in either case
under clause (i) or (ii), are not callable or redeemable at the option of
the issuer thereof.


 


“GLOBAL SECURITY” or “GLOBAL SECURITIES” means a
Security or Securities, as the case may be, in the form established pursuant to
Section 2.14 evidencing all or part of a Series of Securities, issued
to the Depository for such Series or its nominee, and registered in the
name of such Depository or nominee.


 


“HOLDER” or “SECURITYHOLDER” means a Person in whose
name a Security is registered or the holder of a Bearer Security.


 


“INDEBTEDNESS” means, with respect to any Person, and
without duplication, (a) all indebtedness, obligations and other
liabilities (contingent or otherwise) of such Person for borrowed money
(including obligations of the Company in respect of overdrafts, foreign
exchange contracts, currency exchange agreements, interest rate protection
agreements, and any loans or advances from banks, whether or not evidenced by
notes or similar instruments) or evidenced by bonds, debentures, notes or
similar instruments (whether or not the recourse of the lender is to the whole
of the assets of such Person or to only a portion thereof) (other than any
account payable or other accrued current liability or obligation incurred in
the ordinary course of business in connection with the obtaining of materials
or services), (b) all reimbursement obligations and other liabilities
(contingent or otherwise) of such Person with respect to letters of credit,
bank guarantees or bankers’ acceptances, (c) all obligations and
liabilities (contingent or otherwise) in respect of leases of such Person
required, in conformity with generally accepted accounting principles, to be
accounted for as capitalized lease obligations on the balance sheet of such Person
and all obligations and other liabilities (contingent or otherwise) under any
lease or related document (including a purchase agreement) in connection with
the lease of real property which provides that such Person is contractually
obligated to purchase or cause a third party to purchase the leased property
and thereby guarantee a minimum residual value of the leased property to the
lessor and the obligations of such Person under such lease or related document
to purchase or to cause a third party to purchase such leased property, (d) all
obligations of such Person (contingent or otherwise) with respect to an
interest rate or other swap, cap or collar agreement or other similar
instrument or agreement or foreign currency hedge, exchange, purchase or
similar instrument or agreement, (e) all direct or indirect guaranties or
similar


 


3





















 


agreements
by such Person in respect of, and obligations or liabilities (contingent or
otherwise) such Person to purchase or otherwise acquire or otherwise assure a
creditor against loss in respect of indebtedness, obligations or liabilities of
another Person of the kind described in clauses (a) through (d), (f) any
indebtedness or other obligations described in clauses (a) through (e) secured
by any mortgage, pledge, lien or other encumbrance existing on property which
is owned or held by such Person, regardless of whether the indebtedness or
other obligation secured thereby shall have been assumed by such Person and (g) any
and all refinancings, replacements, deferrals, renewals, extensions and
refundings of, or amendments, modifications or supplements to, any
indebtedness, obligation or liability of the kind described in clauses (a) through
(g).


 


“INDENTURE” means this Indenture as amended from time
to time and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.


 


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


 


“OFFICER” means the Chairman of the Board, the Chief
Executive Officer, the President, any Vice-President, the Treasurer, the
Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.


 


“OFFICERS’ CERTIFICATE” means a certificate signed by
two Officers, one of whom must be the Company’s principal executive officer,
principal financial officer or principal accounting officer.


 


“OPINION OF COUNSEL” means a written opinion of legal
counsel who is acceptable to the Trustee. 
The counsel may be an employee of or counsel to the Company.


 


“PERSON” means any individual, corporation,
partnership, joint venture, association, limited liability company, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.


 


“PRINCIPAL” of a Security means the principal of the
Security plus, when appropriate, the premium, if any, on, and any Additional
Amounts in respect of, the Security.


 


“REPRESENTATIVE” means the (a) indenture trustee
or other trustee, agent or representative for any Senior Indebtedness or (b) with
respect to any Senior Indebtedness that does not have any such trustee, agent
or other representative, (i) in the case of such Senior Indebtedness
issued pursuant to an agreement providing for voting arrangements as among the
holders or owners of such Senior Indebtedness, any holder or owner of such
Senior Indebtedness acting with the consent of the required Persons necessary
to bind such holders or owners of such Senior Indebtedness and (ii) in the
case of all other such Senior Indebtedness, the holder or owner of such Senior
Indebtedness.


 


4





















 


“RESPONSIBLE OFFICER” means any officer of the Trustee
in its Corporate Trust Office and also means, with respect to a particular
corporate trust matter, any other officer to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with a particular
subject.


 


“SEC” means the Securities and Exchange Commission.


 


“SECURITIES” means the debentures, notes or other debt
instruments of the Company of any Series authenticated and delivered under
this Indenture.


 


“SENIOR INDEBTEDNESS” means the principal, premium, if
any, interest, including any interest accruing after bankruptcy, and rent or
termination payment on or other amounts due on the Company’s current or future
Indebtedness, whether created, incurred, assumed, guaranteed or in effect
guaranteed by the Company, including any deferrals, renewals, extensions,
refundings, amendments, modifications or supplements to the above.  However, Senior Indebtedness does not
include: (i) Indebtedness that expressly provides that it shall not be
senior in right of payment to the Securities or expressly provides that it is
on the same basis or junior to the Securities; (ii) the Company’s
indebtedness to any of its majority-owned Subsidiaries; (iii) any liability
for federal, state, local or other taxes owed or owing by the Company; (iv) accounts
payable or any other obligations of the Company to trade creditors created or
assumed by the Company in the ordinary course of business in connection with
the obtaining of materials or services; and (v) the Securities.


 


“SERIES” or “SERIES OF SECURITIES” means each series
of debentures, notes or other Debt instruments of the Company created pursuant
to Sections 2.1 and 2.2 hereof.


 


“SIGNIFICANT SUBSIDIARY” means (i) any direct or
indirect Subsidiary of the Company that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act of 1933, as amended, as such regulation is in
effect on the date hereof, or (ii) any group of direct or indirect
Subsidiaries of the Company that, taken together as a group, would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act of 1933, as amended, as such
regulation is in effect on the date hereof.


 


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


 


“SUBSIDIARY” of any specified Person means any
corporation of which at least a majority of the outstanding stock having by the
terms thereof ordinary voting power for the election of directors of such
corporation (irrespective of whether or not at the time stock of any other
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or indirectly
owned by such Person, or by one or more other Subsidiaries, or by such Person
and one or more other Subsidiaries.


 


“TIA” means the Trust Indenture Act of 1939 (15 U.S.
Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture;
provided, however, that in the event the Trust


 


5





















 


Indenture
Act of 1939 is amended after such date, “TIA” means, to the extent required by
any such amendment, the Trust Indenture Act as so amended.


 


“TRUSTEE” means the Person named as the “Trustee” in
the first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as
used with respect to the Securities of any Series shall mean the Trustee
with respect to Securities of that Series.


 


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


 


Section 1.2.                                   Other
Definitions.


 


	
  TERM

  	
   

  	
  DEFINED

  IN SECTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Bankruptcy Law”

  	
   

  	
  6. 1

  	
   

  
	
  “Custodian”

  	
   

  	
  6.1

  	
   

  
	
  “Event of
  Default”

  	
   

  	
  6.1

  	
   

  
	
  “Journal”

  	
   

  	
  10.15

  	
   

  
	
  “Judgment
  Currency”

  	
   

  	
  10.16

  	
   

  
	
  “Legal Holiday”

  	
   

  	
  10.7

  	
   

  
	
  “Mandatory Sinking Fund Payment”

  	
   

  	
  11.1

  	
   

  
	
  “Market Exchange
  Rate”

  	
   

  	
  10.15

  	
   

  
	
  “New York
  Banking Day”

  	
   

  	
  10.16

  	
   

  
	
  “Optional
  Sinking Fund Payment”

  	
   

  	
  11.1

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.4

  	
   

  
	
  “Payment
  Blockage Notice”

  	
   

  	
  12.2

  	
   

  
	
  “Registrar”

  	
   

  	
  2.4

  	
   

  
	
  “Required
  Currency”

  	
   

  	
  10.16

  	
   

  
	
  “Service Agent”

  	
   

  	
  2.4

  	
   

  



 


6





















 


Section 1.3.                                   Incorporation
by Reference of Trust Indenture Act.


 


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


 


“COMMISSION” means the SEC.


 


“INDENTURE SECURITIES” means the Securities.


 


“INDENTURE SECURITY HOLDER” means a Securityholder.


 


“INDENTURE TO BE QUALIFIED” means this Indenture.


 


“INDENTURE TRUSTEE” or “INSTITUTIONAL TRUSTEE” means the Trustee.


 


“OBLIGOR” on the indenture securities means the Company and any
successor obligor upon the Securities.


 


All other terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by
SEC rule under the TIA and not otherwise defined herein are used herein as
so defined.


 


Section 1.4.                                   Rules of
Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


(c)                                  references
to “GENERALLY ACCEPTED ACCOUNTING PRINCIPLES” shall mean generally accepted
accounting principles in effect as of the time when and for the period as to
which such accounting principles are to be applied;


 


(d)                                 “OR”
is not exclusive;


 


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


 


(f)                                    provisions
apply to successive events and transactions.


 


7





















 


ARTICLE II.

THE SECURITIES


 


Section 2.1.                                   Issuable
in Series.


 


The aggregate principal amount of Securities that may
be authenticated and delivered under this Indenture is unlimited.  The Securities may be issued in one or more
Series.  All Securities of a Series shall
be identical except as may be set forth in a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate detailing the adoption of the
terms thereof pursuant to the authority granted under a Board Resolution.  In the case of Securities of a Series to
be issued from time to time, the Board Resolution, supplemental indenture hereto
or Officers’ Certificate may provide for the method by which specified terms (such
as interest rate, maturity date, record date or date from which interest shall
accrue) are to be determined.  Securities
may differ between Series in respect of any matters; provided that all Series of
Securities shall be equally and ratably entitled to the benefits of the
Indenture and all Securities issued hereunder shall be subordinate and junior
in right of payment, to the extent and in the manner set forth in Article XII,
to all Senior Indebtedness of the Company.


 


Section 2.2.                                   Establishment
of Terms of Series of Securities.


 


At or prior to the issuance of any Securities within a
Series, the following shall be established by a Board Resolution, a
supplemental indenture hereto or an Officers’ Certificate pursuant to authority
granted under a Board Resolution:


 


2.2.1.                     the title of
the Series (which shall distinguish the Securities of that particular Series from
the Securities of any other Series);


 


2.2.2.                     the price or
prices (expressed as a percentage of the principal amount thereof) at which the
Securities of the Series will be issued;


 


2.2.3.                     any limit
upon the aggregate principal amount of the Securities of the Series which
may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the Series pursuant to Section 2.7,
2.8, 2.11, 3.6 or 9.6);


 


2.2.4.                     the Stated
Maturity or Maturity on which the principal of the Securities of the Series is
payable or the method of determination thereof;


 


2.2.5.                     the rate or
rates (which may be fixed or variable) per annum or, if applicable, the method
used to determine such rate or rates (including, but not limited to, any
commodity, commodity index, stock exchange index or financial index) at which
the Securities of the Series shall bear interest, if any;


 


2.2.6.                     the date or
dates from which such interest, if any, shall accrue, the date or dates on
which such interest, if any, shall commence and be payable and any regular
record date for the interest payable on any interest payment date or the manner
of determination of such date and the record date for the determination of
holders to whom interest is payable on such date;


 


2.2.7.                     the Persons
who shall be entitled to receive interest on the Series of Securities, if
other than the record holder on the record date;


 


8





















 


2.2.8.                     the place or
places where the principal of and interest, if any, on the Securities of the Series shall
be payable, or the method of such payment, if by wire transfer, mail or other
means;


 


2.2.9.                     the right, if
any, to extend or defer the payment of interest on the Securities of the Series and
the duration of such extension;


 


2.2.10.               if applicable, the
period or periods within which the price or prices at which and the terms and
conditions upon which the Securities of the Series may be redeemed, in
whole or in part, at the option of the Company;


 


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


 


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


 


2.2.13.               if other than
denominations of $1,000 and any integral multiple thereof, the denominations in
which the Securities of the Series shall be issuable;


 


2.2.14.               the forms of the
Securities of the Series in bearer or fully registered form (and, if in
fully registered form, whether the Securities will be issuable as Global
Securities);


 


2.2.15.               if other than the
principal amount thereof, the portion of the principal amount of the Securities
of the Series that shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.2;


 


2.2.16.               whether the
Securities will be convertible into or exchangeable for shares of common stock
or other securities of the Company and, if so, the terms and conditions upon
which such Securities will be convertible or exchangeable, including the
conversion or exchange price and the conversion or exchange period;


 


2.2.17.               the currency of
denomination of the Securities of the Series, which may be Dollars or any
Foreign Currency, including, but not limited to, the ECU, and if such currency
of denomination is a composite currency other than the ECU, the agency or
organization, if any, responsible for overseeing such composite currency;


 


2.2.18.               the designation of
the currency, currencies or currency units in which payment of the principal of
and interest, if any, on the Securities of the Series will be made;


 


2.2.19.               if payments of
principal of or interest, if any, on the Securities of the Series are to
be made in one or more currencies or currency units other than that or those in
which such Securities are denominated, the manner in which the exchange rate
with respect to such payments will be determined;


 


9





















 


2.2.20.               the manner in which
the amounts of payment of principal of or interest, if any, on the Securities
of the Series will be determined, if such amounts may be determined by
reference to an index based on a currency or currencies or by reference to a
commodity, commodity index, stock exchange index or financial index;


 


2.2.21.               the provisions, if
any, relating to any security provided for the Securities of the Series;


 


2.2.22.               any addition to or
change in the Events of Default which apply to any Securities of the Series and
any change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;


 


2.2.23.               any addition to or
change in the covenants set forth in Article IV or V which applies to
Securities of the Series;


 


2.2.24.               any addition to or
change in the subordination provisions set forth in Article XII which
applies to Securities of the Series;


 


2.2.25.               any other terms of
the Securities of the Series (which terms shall not be inconsistent with
the provisions of this Indenture, except as permitted by Section 9.1, but
which may modify or delete any provision of this Indenture insofar as it
applies to such Series);


 


2.2.26.               any provisions
granting special rights to holders when a specified event occurs; and


 


2.2.27.               any depositories,
interest rate calculation agents, exchange rate calculation agents or other
agents with respect to Securities of such Series if other than those
appointed herein.


 


All Securities of any one Series need not be
issued at the same time and may be issued from time to time, consistent with
the terms of this Indenture, if so provided by or pursuant to the Board
Resolution, supplemental indenture hereto or Officers’ Certificate referred to
above, and the authorized principal amount of any Series may not be
increased to provide for issuances of additional Securities of such Series,
unless otherwise provided in such Board Resolution, supplemental indenture hereto
or Officers’ Certificate.


 


Section 2.3.                                   Execution
and Authentication.


 


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


 


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


 


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


 


10





















 


The Trustee shall at any time, and from time to time,
authenticate Securities for original issue in the principal amount provided in
the Board Resolution, supplemental indenture hereto or Officers’ Certificate,
upon receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Company or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing.


 


Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate.


 


The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or
Officers’ Certificate delivered pursuant to Section 2.2, except as
provided in Section 2.8.


 


Prior to the issuance of Securities of any Series, the
Trustee shall have received and (subject to Section 7.2) shall be fully
protected in relying on: (a) the Board Resolution, supplemental indenture
hereto or Officers’ Certificate establishing the form of the Securities of that
Series or of Securities within that Series and the terms of the
Securities of that Series or of Securities within that Series, (b) an
Officers’ Certificate complying with Section 10.4, and (c) an Opinion
of Counsel complying with Section 10.4.


 


The Trustee shall have the right to decline to
authenticate and deliver any Securities of such Series: (a) if the
Trustee, being advised by counsel, determines that such action may not lawfully
be taken; or (b) if the Trustee in good faith by its board of directors or
trustees, executive committee or a trust committee of directors and/or
vice-presidents shall determine that such action would expose the Trustee to
personal liability to Holders of any then outstanding Series of
Securities.


 


The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Securities. An authenticating agent
may authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate.


 


Section 2.4.                                   Registrar
and Paying Agent.


 


The Company shall maintain, with respect to each Series of
Securities, at the place or places specified with respect to such Series pursuant
to Section 2.2, an office or agency where Securities of such Series may
be presented or surrendered for payment (“PAYING AGENT”), where Securities of
such Series may be surrendered for registration of transfer or exchange (“REGISTRAR”)
and where notices and demands to or upon the Company in respect of the
Securities of such Series and this Indenture may be served (“SERVICE AGENT”).
The Registrar shall keep a register with respect to each Series of
Securities and to their transfer and exchange. The Company will give prompt
written notice to the Trustee of the name and address, and any change in the
name or address, of each Registrar, Paying Agent or Service Agent. If at any
time the Company shall fail to maintain any such required Registrar, Paying
Agent or 


 


11





















 


Service
Agent or shall fail to furnish the Trustee with the name and address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.


 


The Company may also from time to time designate one
or more co-registrars, additional paying agents or additional service agents
and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its obligations
to maintain a Registrar, Paying Agent and Service Agent in each place so
specified pursuant to Section 2.2 for Securities of any Series for
such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the name or address of
any such co-registrar, additional paying agent or additional service agent. The
term “REGISTRAR” includes any co-registrar; the term “PAYING AGENT” includes
any additional paying agent; and the term “SERVICE AGENT” includes any
additional service agent.


 


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


 


Section 2.5.                                   Paying
Agent to Hold Money in Trust.


 


The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent will hold in trust, for
the benefit of Securityholders of any Series of Securities, or the
Trustee, all money held by the Paying Agent for the payment of principal or
interest on the Series of Securities, and will notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it
to the Trustee. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent,
it shall segregate and hold in a separate trust fund for the benefit of
Securityholders of any Series of Securities all money held by it as Paying
Agent.


 


Section 2.6.                                   Securityholder
Lists.


 


The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Securityholders of each Series of Securities and shall
otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least ten days before
each interest payment date and at such other times as the Trustee may request
in writing a list, in such form and as of such date as the Trustee may
reasonably require, of the names and addresses of Securityholders of each Series of
Securities.


 


Section 2.7.                                   Transfer
and Exchange.


 


Where Securities of a Series are presented to the
Registrar or a co-registrar with a request to register a transfer or to
exchange them for an equal principal amount of Securities of


 


12





















 


the
same Series, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Trustee shall authenticate Securities at the
Registrar’s request. No service charge shall be made for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer tax or similar governmental charge payable upon exchanges
pursuant to Section 2.11, 3.6 or 9.6).


 


Neither the Company nor the Registrar shall be
required (a) to issue, register the transfer of, or exchange Securities of
any Series for the period beginning at the opening of business fifteen days
immediately preceding the mailing of a notice of redemption of Securities of
that Series selected for redemption and ending at the close of business on
the day of such mailing, or (b) to register the transfer of or exchange
Securities of any Series selected, called or being called for redemption
as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.


 


Section 2.8.                                   Mutilated,
Destroyed, Lost and Stolen Securities.


 


If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same Series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.


 


If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and make available for delivery, in
lieu of any such destroyed, lost or stolen Security, a new Security of the same
Series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.


 


In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.


 


Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith.


 


Every new Security of any Series issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
Series duly issued hereunder.


 


13





















 


The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.


 


Section 2.9.                                   Outstanding
Securities.


 


The Securities outstanding at any time are all the
Securities authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest on a Global
Security effected by the Trustee in accordance with the provisions hereof and
those described in this Section as not outstanding.


 


If a Security is replaced pursuant to Section 2.8,
it ceases to be outstanding until the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.


 


If the Paying Agent (other than the Company, a
Subsidiary or an Affiliate of any thereof) holds on the Maturity of Securities
of a Series money sufficient to pay such Securities payable on that date,
then on and after that date such Securities of the Series cease to be
outstanding and interest on them ceases to accrue.


 


A Security does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Security.


 


In determining whether the Holders of the requisite
principal amount of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Discount Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.


 


Section 2.10.                             Treasury
Securities.


 


In determining whether
the Holders of the required principal amount of Securities of a Series have
concurred in any request, demand, authorization, direction, notice, consent or
waiver Securities of a Series owned by the Company or an Affiliate of the
Company shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Securities of a Series that
the Trustee knows are so owned shall be so disregarded.


 


Section 2.11.                             Temporary
Securities.


 


Until definitive Securities are ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Securities
upon a Company Order. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee upon request shall authenticate definitive
Securities of the same Series and date of maturity in exchange for
temporary Securities. Until so exchanged, temporary securities shall have the
same rights under this Indenture as the definitive Securities.


 


14





















 


Section 2.12.                             Cancellation.


 


The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
transfer, exchange, payment, replacement or cancellation and shall destroy such
canceled Securities (subject to the record retention requirement of the
Exchange Act) and deliver a certificate of such destruction to the Company,
unless the Company otherwise directs. The Company may not issue new Securities
to replace Securities that it has paid or delivered to the Trustee for
cancellation.


 


Section 2.13.                             Defaulted
Interest.


 


If the Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest, plus, to the extent permitted by
law, any interest payable on the defaulted interest, to the Persons who are Securityholders
of the Series on a subsequent special record date. The Company shall fix
the record date and payment date. At least 30 days before the record date, the
Company shall mail to the Trustee and to each Securityholder of the Series a
notice that states the record date, the payment date and the amount of interest
to be paid. The Company may pay defaulted interest in any other lawful manner.


 


Section 2.14.                             Global
Securities.


 


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


 


2.14.2.               Transfer and
Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7
and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7
for Securities registered in the names of Holders other than the Depository for
such Security or its nominee only if (i) such Depository notifies the
Company that it is unwilling or unable to continue as Depository for such
Global Security or if at any time such Depository ceases to be a clearing
agency registered under the Exchange Act, and, in either case, the Company
fails to appoint a successor Depository within 90 days of such event, (ii) the
Company executes and delivers to the Trustee an Officers’ Certificate to the
effect that such Global Security shall be so exchangeable or (iii) an
Event of Default with respect to the Securities represented by such Global
Security shall have happened and be continuing. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as the Depository shall direct in writing
in an aggregate principal amount equal to the principal amount of the Global
Security with like tenor and terms.


 


Except as provided in this Section 2.14.2, a
Global Security may not be transferred except as a whole by the Depository with
respect to such Global Security to a nominee of such Depository, by a nominee
of such Depository to such Depository or another nominee of such Depository or
by the Depository or any such nominee to a successor Depository or a nominee of
such a successor Depository.


 


15





















 


2.14.3.               Legend. Unless
otherwise provided pursuant to Section 2.2, any Global Security issued
hereunder shall bear a legend in substantially the following form:


 


“THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY OR A NOMINEE OF THE
DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, BY A NOMINEE
OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY
THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH A SUCCESSOR DEPOSITORY.”


 


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


 


2.14.5.               Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise
specified as contemplated by Section 2.2, payment of the principal of,
premium, if any, and interest, if any, on any Global Security shall be made to
the Holder thereof.


 


2.14.6.               Consents,
Declaration and Directions. Except as provided in Section 2.14.5, the
Company, the Trustee and any Agent shall treat a Person as the Holder of such
principal amount of outstanding Securities of such Series represented by a
Global Security as shall be specified in a written statement of the Depositary
with respect to such Global Security, for purposes of obtaining any consents,
declarations, waivers or directions required to be given by the Holders
pursuant to this Indenture.


 


Section 2.15.                             CUSIP
Numbers.


 


The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other elements of identification
printed on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers.


 


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ARTICLE III.

REDEMPTION


 


Section 3.1.                                   Notice
to Trustee.


 


The Company may, with respect to any Series of
Securities, reserve the right to redeem and pay the Series of Securities
or may covenant to redeem and pay the Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as
provided for in such Securities. If a Series of Securities is redeemable
and the Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of
such Securities, it shall notify the Trustee of the redemption date and the
principal amount of Series of Securities to be redeemed. The Company shall
give the notice at least 45 days before the redemption date (or such shorter
notice as may be acceptable to the Trustee).


 


Section 3.2.                                   Selection
of Securities to be Redeemed.


 


Unless otherwise indicated for a particular Series by
a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, if less than all the Securities of a Series are to be
redeemed, the Trustee shall select the Securities of the Series to be redeemed
in any manner that the Trustee deems fair and appropriate. The Trustee shall
make the selection from Securities of the Series outstanding not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities of the Series that have denominations larger than $1,000.
Securities of the Series and portions of them it selects shall be in amounts
of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable
in other denominations pursuant to Section 2.2.13, the minimum principal
denomination for each Series and integral multiples thereof. Provisions of
this Indenture that apply to Securities of a Series called for redemption
also apply to portions of Securities of that Series called for redemption.


 


Section 3.3.                                   Notice
of Redemption.


 


Unless otherwise indicated for a particular Series by
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate,
at least 30 days but not more than 90 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed and if any Bearer Securities are
outstanding, publish on one occasion a notice in an Authorized Newspaper. The
notice shall identify the Securities of the Series to be redeemed and
shall state:


 


(a)                                  the
redemption date;


 


(b)                                 the
redemption price, or if not then ascertainable, the manner of calculation
thereof;


 


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


 


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


 


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(e)                                  if
fewer than all the outstanding Securities of the Series are to be
redeemed, the identification and principal amounts of the particular Securities
of the Series to be redeemed;


 


(f)                                    that
interest on Securities of the Series called for redemption ceases to
accrue on and after the redemption date;


 


(g)                                 that
no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Securities; and


 


(h)                                 any
other information as may be required by the terms of the particular Series or
the Securities of a Series being redeemed.


 


At the Company’s request, the Trustee shall give the
notice of redemption in the Company’s name and at its expense.


 


Section 3.4.                                   Effect
of Notice of Redemption.


 


Once notice of redemption is mailed or published as
provided in Section 3.3, Securities of a Series called for redemption
become due and payable on the redemption date and at the redemption price. A
notice of redemption may not be conditional. If mailed in the manner provided
for in Section 3.3, the notice of redemption shall be conclusively
presumed to have been given whether or not the Holder receives such notice.
Failure to give such notice or any defect in the notice to any Holder shall not
affect the validity of the notice or the redemption.  Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued interest to the redemption
date.


 


Section 3.5.                                   Deposit
of Redemption Price.


 


On or before the redemption date, the Company shall
deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest, if any, on all Securities to be redeemed on that date.


 


Section 3.6.                                   Securities
Redeemed in Part.


 


Upon surrender of a Security that is redeemed in part,
the Trustee shall authenticate for the Holder a new Security of the same Series and
the same maturity equal in principal amount to the unredeemed portion of the
Security surrendered.


 


ARTICLE IV.

COVENANTS


 


Section 4.1.                                   Payment
of Principal and Interest.


 


The Company covenants and agrees for the benefit of
the Holders of each Series of Securities that it will duly and punctually
pay the principal of and interest, if any, on the Securities of that Series in
accordance with the terms of such Securities and this Indenture.


 


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Section 4.2.                                   SEC
Reports.


 


The Company shall deliver to the Trustee within 30 days
after it files them with the SEC copies of the annual reports and of the
information, documents, and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The Company also shall comply with the other provisions of
TIA Section 314(a).


 


Section 4.3.                                   Compliance
Certificate.


 


The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year of the Company, an Officers’ Certificate
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions
hereof (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he may have knowledge).


 


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


 


Section 4.4.                                   Stay,
Extension and Usury Laws.


 


The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture or the Securities; and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
has been enacted.


 


Section 4.5.                                   Maintenance
of Office or Agency.


 


So long as any Series of Securities remains
outstanding, the Company agrees to maintain an office or agency in the Borough
of Manhattan, the City and State of New York, with respect to each such Series and
at such other location or locations as may be designated as provided in this Section 4.5,
where (a) Securities of that Series may be presented for payment, (b) Securities
of that Series may be presented as hereinabove authorized for registration
of transfer and exchange, and (c) notices and demands to or upon the
Company in respect of the Securities of that Series and this Indenture may
be given or served, such designation to continue with respect to such office or
agency until the Company shall, by written notice signed by an


 


19





















 


Officer
of the Company and delivered to the Trustee, designate some other office or
agency for such purposes or any of them. 
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, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, notices and demands.


 


Section 4.6.                                   Corporate
Existence.


 


Subject to Article V, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or other
existence of each Subsidiary in accordance with the respective organizational
documents of each Subsidiary and the rights (charter and statutory), licenses
and franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any Subsidiary, if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries taken as a whole
and that the loss thereof is not adverse in any material respect to the Holders.


 


Section 4.7.                                   Taxes.


 


The Company shall, and shall cause each of its
Subsidiaries to, pay prior to delinquency all material taxes, assessments and
governmental levies, except as contested in good faith and by appropriate
proceedings.


 


ARTICLE V.

SUCCESSORS


 


Section 5.1.                                   Successor
Corporation Substituted.


 


Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company, the successor corporation formed by such consolidation or into or
with which the Company is merged or to which such sale, lease, conveyance or
other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person has been named as the Company herein.


 


ARTICLE VI.

DEFAULTS AND REMEDIES


 


Section 6.1.                                   Events
of Default.


 


“EVENT OF DEFAULT,” wherever used herein with respect
to Securities of any Series, means any one of the following events, unless in
the establishing Board Resolution, supplemental indenture hereto or Officers’
Certificate, it is provided that such Series shall not have the benefit of
said Event of Default:


 


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(a)                                  default
in the payment of any interest on any Security of that Series when it
becomes due and payable, and continuance of such default for a period of 30
days (unless the entire amount of such payment is deposited by the Company with
the Trustee or with a Paying Agent prior to the expiration of such period of 30
days); or


 


(b)                                 default
in the payment of the principal of any Security of that Series at its
Maturity; or


 


(c)                                  default
in the deposit of any sinking fund payment, when and as due in respect of any
Security of that Series; or


 


(d)                                 default
in the performance or breach of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty that has been included in this
Indenture solely for the benefit of a Series of Securities other than that
Series), which default continues uncured for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the outstanding Securities of that Series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a “NOTICE OF DEFAULT” hereunder; or


 


(e)                                  the
Company or any of its Significant Subsidiaries pursuant to or within the
meaning of any Bankruptcy Law:


 


(i)                                     commences
a voluntary case,


 


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


 


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


 


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


 


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


 


(i)                                     is
for relief against the Company or any of its Significant Subsidiaries in an
involuntary case,


 


(ii)                                  appoints
a Custodian of the Company or any of its Significant Subsidiaries or for all or
substantially all of its property, or


 


(iii)                               orders
the liquidation of the Company or any of its Significant Subsidiaries, and the
order or decree remains unstayed and in effect for 90 days; or


 


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(g)                                 any
other Event of Default provided with respect to Securities of that Series,
which is specified in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate, in accordance with Section 2.2.


 


The term “BANKRUPTCY LAW” means title 11, U.S. Code or
any similar Federal or State law for the relief of debtors. The term “CUSTODIAN”
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.


 


Section 6.2.                                   Acceleration
of Maturity; Rescission and Annulment.


 


If an Event of Default with respect to Securities of
any Series at the time outstanding occurs and is continuing (other than an
Event of Default referred to in Section 6.1(e) or (f)), then in every
such case the Trustee or the Holders of not less than 25% in principal amount
of the outstanding Securities of that Series may declare the principal
amount (or, if any Securities of that Series are Discount Securities, such
portion of the principal amount as may be specified in the terms of such
Securities) of and accrued and unpaid interest, if any, on all of the Securities
of that Series to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) and accrued and unpaid
interest, if any, shall become immediately due and payable. If an Event of
Default specified in Section 6.1(e) or (f) shall occur, the
principal amount (or specified amount) of and accrued and unpaid interest, if
any, on all outstanding Securities 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.


 


At any time after such a declaration of acceleration
with respect to any Series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of
the outstanding Securities of that Series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:


 


(a)                                  the
Company has paid or deposited with the Trustee a sum sufficient to pay


 


(i)                                     all
overdue interest, if any, on all Securities of that Series,


 


(ii)                                  the
principal of any Securities of that Series which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities,


 


(iii)                               to
the extent that payment of such interest is lawful, interest upon any overdue
principal and overdue interest at the rate or rates prescribed therefor in such
Securities, and


 


(iv)                              all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
and


 


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(b)                                 all
Events of Default with respect to Securities of that Series, other than the
non-payment of the principal (or a specified portion of the principal) of
Securities of that Series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 6.13.


 


No such rescission shall affect any subsequent Default
or impair any right consequent thereon.


 


Section 6.3.                                   Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The Company covenants that if


 


(a)                                  default
is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or


 


(b)                                 default
is made in the payment of principal of any Security at the Maturity thereof, or


 


(c)                                  default
is made in the deposit of any sinking fund payment when and as due by the terms
of a Security,


 


then, the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal and interest and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal or any overdue interest, at the rate or rates prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.


 


If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or deemed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.


 


If an Event of Default with respect to any Securities
of any Series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Securities of such Series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.


 


Section 6.4.                                   Trustee
May File Proofs of Claim.


 


In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the


 


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Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,


 


(a)                                  to
file and prove a claim for the whole amount of principal and interest owing and
unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and


 


(b)                                 to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.


 


Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.


 


Section 6.5.                                   Trustee
May Enforce Claims Without Possession of Securities.


 


All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.


 


Section 6.6.                                   Application
of Money Collected.


 


Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:


 


First: To the payment of all amounts due the Trustee
under Section 7.7; and


 


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Second: To the payment of the amounts then due and
unpaid for principal of and interest on the Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and interest, respectively; and


 


Third: To the Company.


 


The Trustee may fix a record date and payment date for
any payment to Securityholders pursuant to this Section 6.6.  At least 15 days before such record date, the
Company shall mail to each Securityholder and the Trustee a notice that states
the record date, the payment date and the amount to be paid.


 


Section 6.7.                                   Limitation
on Suits.


 


No Holder of any Security of any Series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless


 


(a)                                  such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities of that Series;


 


(b)                                 the
Holders of not less than 25% in principal amount of the outstanding Securities
of that Series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;


 


(c)                                  such
Holder or Holders have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request;


 


(d)                                 the
Trustee for 90 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and


 


(e)                                  no
direction inconsistent with such written request has been given to the Trustee
during such 90-day period by the Holders of a majority in principal amount of
the outstanding Securities of that Series;


 


it being understood and intended that no one or more
of such Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all such Holders.


 


Section 6.8.                                   Unconditional
Right of Holders to Receive Principal and Interest.


 


Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
such Security on the Stated Maturity or Stated Maturities expressed in such Security
(or, in the case of redemption, on the redemption date) and to institute suit
for the


 


25





















 


enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.


 


Section 6.9.                                   Restoration
of Rights and Remedies.


 


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


 


Section 6.10.                             Rights
and Remedies Cumulative.


 


Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8,
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 in
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 6.11.                             Delay
or Omission Not Waiver.


 


No delay or omission of the Trustee or of any Holder
of any Securities 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 an 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.


 


Section 6.12.                             Control
by Holders.


 


The Holders of a majority in principal amount of the
outstanding Securities of any Series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such Series; provided that


 


(a)                                  such
direction shall not be in conflict with any rule of law or with this
Indenture,


 


(b)                                 the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and


 


(c)                                  subject
to the provisions of Section 6.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a
Responsible


 


26





















 


Officer of the Trustee, determine that the proceeding
so directed would involve the Trustee in personal liability.


 


Section 6.13.                             Waiver
of Past Defaults.


 


Subject to Section 6.2, the Holders
of not less than a majority in principal amount of the outstanding Securities
of any Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to
such Series and its consequences, except a Default in the payment of the
principal of or interest on any Security of such Series; provided, however,
that the Holders of a majority in principal amount of the outstanding
Securities of any Series may rescind an acceleration of the Securities of
such Series and its consequences, including any related payment default
that resulted from such acceleration. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.


 


Section 6.14.                             Undertaking
for Costs.


 


All parties to this Indenture agree, and each Holder
of any Security by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the outstanding Securities of any Series, or to
any suit instituted by any Holder for the enforcement of the payment of the principal
of or interest on any Security on or after the Stated Maturity or Stated
Maturities expressed in such Security (or, in the case of redemption, on the
redemption date).


 


ARTICLE VII.

TRUSTEE


 


Section 7.1.                                   Duties
of Trustee.


 


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


 


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


 


(i)                                     The
Trustee need perform only those duties that are specifically set forth in this
Indenture and no others.


 


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(ii)                                  In
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon Officers’ Certificates or Opinions of Counsel furnished to the
Trustee and conforming to the requirements of this Indenture; however, in the
case of any such Officers’ Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine such Officers’ Certificates and Opinions of Counsel to
determine whether or not they conform to the requirements of this Indenture.


 


(c)                                  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:


 


(i)                                     This
paragraph does not limit the effect of paragraph (b) of this Section.


 


(ii)                                  The
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.


 


(iii)                               The
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it with respect to Securities of any Series in good
faith in accordance with the direction of the Holders of a majority in principal
amount of the outstanding Securities of such Series relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such Series.


 


(d)                                 Every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b) and (c) of this Section.


 


(e)                                  The
Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.


 


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


 


(g)                                 No
provision of this Indenture shall require the Trustee to risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk is not reasonably assured to it.


 


(h)                                 The
Paying Agent, the Registrar and any authenticating agent shall be entitled to
the protections and immunities as are set forth in paragraphs (a), (b) and
(c) of this Section with respect to the Trustee.


 


28





















 


(i)                                     Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section and to the provisions of the TIA and the provisions of this Article VII
shall apply to the Trustee in its role as Registrar, Paying Agent and Service
Agent.


 


Section 7.2.                                   Rights
of Trustee.


 


(a)                                  The
Trustee may rely on and shall be protected in acting or refraining from acting
upon any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.  The
Trustee may, however, in its discretion make such further inquiry or
investigation into such facts or matters as it may see fit.


 


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


 


(c)                                  The
Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care. No Depository shall be
deemed an agent of the Trustee and the Trustee shall not be responsible for any
act or omission by any Depository.


 


(d)                                 The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers;
provided that the Trustee’s conduct does not constitute willful misconduct or
negligence.


 


(e)                                  The
Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.


 


(f)                                    The
permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty unless so specified herein.


 


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


 


In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (1) any Event of
Default occurring pursuant to Sections 6.1(a), 6.1(b), 6.1(c) and 4.3
hereof or (2) any Default or Event of Default of which the Trustee shall
have received written notification in the manner set forth in this Indenture or
a Responsible Officer of the Trustee shall have obtained actual knowledge.
Delivery of reports, information and documents to the Trustee under Section 4.2
is for informational purposes only and the information and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of


 


29





















 


any
information contained therein, or determinable from information contained
therein including the Company’s compliance with any of their covenants
thereunder (as to which the Trustee is entitled to rely exclusively on an
Officers’ Certificate).


 


Section 7.3.                                   Individual
Rights of Trustee.


 


The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the
Company or an Affiliate with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The Trustee is also
subject to Sections 7.10 and 7.11.


 


Section 7.4.                                   Trustee’s
Disclaimer.


 


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


 


Section 7.5.                                   Notice
of Defaults.


 


If a Default or Event of Default occurs and is
continuing with respect to the Securities of any Series and if it is known
to a Responsible Officer of the Trustee, the Trustee shall mail to each
Securityholder of the Securities of that Series and, if any Bearer
Securities are outstanding, publish on one occasion in an Authorized Newspaper,
notice of a Default or Event of Default within 90 days after it occurs or, if
later, after a Responsible Officer of the Trustee has knowledge of such Default
or Event of Default. Except in the case of a Default or Event of Default in
payment of principal of or interest on any Security of any Series, the Trustee
may withhold the notice if and so long as its corporate trust committee or a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Securityholders of that Series.


 


Section 7.6.                                   Reports
by Trustee to Holders.


 


Within 60 days after May 15 in each year, the
Trustee shall transmit by mail to all Securityholders, as their names and
addresses appear on the register kept by the Registrar and, if any Bearer
Securities are outstanding, publish in an Authorized Newspaper, a brief report
dated as of such May 15, in accordance with, and to the extent required
under, TIA Section 313.


 


A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the SEC and each stock
exchange on which the Securities of that Series are listed. The Company
shall promptly notify the Trustee when Securities of any Series are listed
on any stock exchange and of any delisting thereof.


 


Section 7.7.                                   Compensation
and Indemnity.


 


The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee’s compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all


 


30





















 


reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and expenses of the Trustee’s agents and counsel.


 


The Company shall indemnify the Trustee (including the
cost of defending itself) against any loss, liability or expense incurred by it
except as set forth in the next paragraph in the performance of its duties
under this Indenture as Trustee or Agent. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. This indemnification
shall apply to officers, directors, employees, shareholders, agents, successors
and assigns of the Trustee.


 


The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee or by any
officer, director, employee, shareholder or agent of the Trustee through willful
misconduct, negligence or bad faith.


 


To secure the Company’s payment obligations in this
Section, the Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Securities of that Series.


 


When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.1(e) or (f) occurs,
the expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.


 


The provisions of this Section 7.7 shall survive
the resignation or removal of the Trustee and the termination of this
Indenture.


 


Section 7.8.                                   Replacement
of Trustee.


 


A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the
successor Trustee’s acceptance of appointment as provided in this Section.


 


The Trustee may resign with respect to the Securities
of one or more Series by so notifying the Company. The Holders of a
majority in principal amount of the Securities of any Series may remove
the Trustee with respect to that Series by so notifying the Trustee and
the Company. The Company may remove the Trustee with respect to Securities of
one or more Series if:


 


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


 


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


 


(c)                                  a
Custodian or public officer takes charge of the Trustee or its property; or


 


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(d)                                 the
Trustee becomes incapable of acting.


 


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


 


If a successor Trustee with respect to the Securities
of any one or more Series does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the Securities of the
applicable Series may petition any court of competent jurisdiction for the
appointment of a successor Trustee.


 


If the Trustee with respect to the Securities of any
one or more Series fails to comply with Section 7.10, any
Securityholder who has been a bona fide Holder of a Security of the applicable Series for
at least six months may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.


 


A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Immediately
after that, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee subject to the lien provided for in Section 7.7,
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 with respect to each Series of Securities for which it is acting
as Trustee under this Indenture. A successor Trustee shall mail a notice of its
succession to each Securityholder of each such Series and, if any Bearer
Securities are outstanding, publish such notice on one occasion in an
Authorized Newspaper. Notwithstanding replacement of the Trustee pursuant to
this Section 7.8, the Company’s obligations under Section 7.7 hereof
shall continue for the benefit of the retiring trustee with respect to expenses
and liabilities incurred by it prior to such replacement.


 


Section 7.9.                                   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 corporation, the successor corporation without any further act shall be
the successor Trustee.


 


In case at the time such successor or successors by
merger, conversion or consolidation to the Trustee shall succeed to the trusts
created by this Indenture any of the Securities shall have been authenticated
but not delivered; any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any such successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; and in all such cases such certificates shall
have the full force that it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.


 


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Section 7.10.                             Eligibility;
Disqualification.


 


This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The
Trustee shall always have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b).


 


Section 7.11.                             Preferential
Collection of Claims Against Company.


 


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


 


ARTICLE VIII.

SATISFACTION AND DISCHARGE; DEFEASANCE


 


Section 8.1.                                   Satisfaction
and Discharge of Indenture.


 


This Indenture shall upon Company Order cease to be of
further effect (except as hereinafter provided in this Section 8.1) as it
relates to all Securities of any Series, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as it relates to all Securities of any Series, when


 


(a)                                  either


 


(i)                                     all
Securities of such Series theretofore authenticated and delivered (other
than Securities that have been destroyed, lost or stolen and that have been
replaced or paid) have been delivered to the Trustee for cancellation; or


 


(ii)                                  all
such Securities not theretofore delivered to the Trustee for cancellation


 


(1)                                  have
become due and payable, or


 


(2)                                  will
become due and payable at their Stated Maturity within one year, or


 


(3)                                  are
to be called for redemption 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, or


 


(4)                                  are
deemed paid and discharged pursuant to Section 8.3, as applicable;


 


and the Company, in the case of (1), (2) or (3) above,
has deposited or caused to be deposited with the Trustee as trust funds in
trust an amount sufficient for the purpose of paying and discharging the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the
case of Securities which


 


33





















 


have become due
and payable on or prior to the date of such deposit) or to the Stated Maturity
or redemption date, as the case may be;


 


(b)                                 the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and


 


(c)                                  the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with.


 


Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 7.7,
and, if money shall have been deposited with the Trustee pursuant to clause (a) of
this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1 8.2 and 8.5 shall
survive.


 


Section 8.2.                                   Application
of Trust Funds; Indemnification.


 


(a)                                  Subject
to the provisions of Section 8.5, all money deposited with the Trustee
pursuant to Section 8.1, all money and U.S. Government Obligations or
Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3
or 8.4 and all money received by the Trustee in respect of U.S. Government
Obligations or Foreign Government Obligations deposited with the Trustee
pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and interest for whose payment such money
has been deposited with or received by the Trustee or to make Mandatory Sinking
Fund Payments or analogous payments as contemplated by Section 8.3 or 8.4.


 


(b)                                 The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against U.S. Government Obligations or Foreign
Government Obligations deposited pursuant to Section 8.3 or 8.4 or the
interest and principal received in respect of such obligations other than any
payable by or on behalf of Holders.


 


(c)                                  The
Trustee shall deliver or pay to the Company from time to time upon Company
Request any U.S. Government Obligations or Foreign Government Obligations or
money held by it as provided in Section 8.3 or 8.4 which, in the opinion
of a nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, are then
in excess of the amount thereof which then would have been required to be
deposited for the purpose for which such U.S. Government Obligations or Foreign
Government Obligations or money were deposited or received. This provision
shall not authorize the sale by the Trustee of any U.S. Government Obligations
or Foreign Government Obligations held under this Indenture.


 


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Section 8.3.                                   Legal
Defeasance of Securities of any Series.


 


Unless this Section 8.3 is otherwise specified pursuant
to Section 2.2 to be inapplicable to Securities of any Series, the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of such Series on the 91st day after the date of
the deposit referred to in subparagraph (d) hereof, and the provisions of
this Indenture, as it relates to such outstanding Securities of such Series,
shall no longer be in effect (and the Trustee, at the expense of the Company,
shall, at Company Request, execute proper instruments acknowledging the same),
except as to:


 


(a)                                  the
rights of Holders of Securities of such Series to receive, from the trust
funds described in subparagraph (d) hereof, (i) payment of the
principal of and each installment of principal of and interest on the
outstanding Securities of such Series on the Stated Maturity of such
principal or installment of principal or interest and (ii) the benefit of
any Mandatory Sinking Fund Payments applicable to the Securities of such Series on
the day on which such payments are due and payable in accordance with the terms
of this Indenture and the Securities of such Series;


 


(b)                                 the
provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5;


 


(c)                                  the
rights, powers, trust and immunities of the Trustee hereunder; provided that
the following conditions shall have been satisfied:


 


(d)                                 the
Company shall have deposited or caused to be deposited irrevocably with the
Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for and dedicated solely to the
benefit of the Holders of such Securities (i) in the case of Securities of
such Series denominated in Dollars, cash in Dollars (or such other money
or currencies as shall then be legal tender in the United States) and/or U.S. Government
Obligations, or (ii) in the case of Securities of such Series denominated
in a Foreign Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and principal in
respect thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee),
not later than one day before the due date of any payment of money, an amount
in cash, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal
(including mandatory sinking fund or analogous payments) of and interest, if
any, on all the Securities of such Series on the dates such installments
of interest or principal are due;


 


(e)                                  such
deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;


 


(f)                                    no
Default or Event of Default with respect to the Securities of such Series shall
have occurred and be continuing on the date of such deposit or during the
period ending on the 91st day after such date;


 


35





















 


(g)                                 the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel to the effect that (i) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling, or (ii) since
the date of execution 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 of the
Securities of such Series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred;


 


(h)                                 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 of the Securities of such Series over any other creditors of the
company or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company;


 


(i)                                     such
deposit shall not result in the trust arising from such deposit constituting an
investment company (as defined in the Investment Company Act of 1940, as
amended), or such trust shall be qualified under such Act or exempt from
regulation thereunder; and


 


(j)                                     the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for
relating to the defeasance contemplated by this Section have been complied
with.


 


Section 8.4.                                   Covenant
Defeasance.


 


Unless this Section 8.4 is otherwise specified
pursuant to Section 2.2 to be inapplicable to Securities of any Series, on
and after the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to comply with any term,
provision or condition set forth under Sections 4.2, 4.3, 4.4, 4.6 (other than
with respect to the Company) and 4.7, as well as any additional covenants
contained in a supplemental indenture hereto for a particular Series of
Securities or a Board Resolution or an Officers’ Certificate delivered pursuant
to Section 2.2 (and the failure to comply with any such covenants shall
not constitute a Default or Event of Default under Section 6.1) and the
occurrence of any event described in clause (e) of Section 6.1 shall
not constitute a Default or Event of Default hereunder, with respect to the
Securities of such Series; provided that the following conditions shall have
been satisfied:


 


(a)                                  With
reference to this Section 8.4, the Company has deposited or caused to be
irrevocably deposited (except as provided in Section 8.2(c)) with the
Trustee as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities (i) in
the case of Securities of such Series denominated in Dollars, cash in
Dollars (or such other money or currencies as shall then be legal tender in the
United States) and/or U.S. Government Obligations, or (ii) in the case of
Securities of such Series denominated in a Foreign Currency (other than a


 


36





















 


composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in respect
thereof, in accordance with their terms, will provide (and without reinvestment
and assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay principal and interest, if any, on and any
mandatory sinking fund in respect of the Securities of such Series on the
dates such installments of interest or principal are due;


 


(b)                                 Such
deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;


 


(c)                                  No
Default or Event of Default with respect to the Securities of such Series shall
have occurred and be continuing on the date of such deposit or during the
period ending on the 91st day after such date;


 


(d)                                 the
Company shall have delivered to the Trustee an Opinion of Counsel confirming
that Holders of the Securities of such Series will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit and
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
deposit and defeasance had not occurred;


 


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


 


(f)                                    The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the defeasance contemplated by this Section have been
complied with.


 


Section 8.5.                                   Repayment
to Company.


 


The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of principal and
interest that remains unclaimed for two years. After that, Securityholders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person.


 


Section 8.6.                                   Reinstatement.


 


If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with Section 8.1, 8.3
or 8.4, as the case may be, by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.1, 8.3
or 8.4, as the case may be, until such time as the Trustee or


 


37





















 


Paying
Agent is permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8.1, 8.3 or 8.4, as the case may be; provided, however, that
if the Company makes any payment of principal of, premium, if any, or interest
on any Securities because of reinstatement of its obligations, the Company
shall be subrogated to the rights of the holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.


 


ARTICLE IX.

AMENDMENTS AND WAIVERS


 


Section 9.1.                                   Without
Consent of Holders.


 


The Company and the Trustee may amend or supplement
this Indenture or the Securities of one or more Series without the consent
of any Securityholder:


 


(a)                                  to
cure any ambiguity, omission, defect or inconsistency;


 


(b)                                 to
comply with Article V;


 


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


 


(d)                                 to
secure the Securities or any Series;


 


(e)                                  to
add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power herein conferred upon the Company;


 


(f)                                    to
make any change that does not adversely affect the rights of any Securityholder
in any material respect;


 


(g)                                 to
provide for the issuance of and establish the form and terms and conditions of
Securities of any Series as permitted by this Indenture;


 


(h)                                 to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more Series and to add to
or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee; or


 


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


 


Section 9.2.                                   With
Consent of Holders.


 


The Company and the Trustee may enter into a
supplemental indenture hereto with the written consent of the Holders of at
least a majority in principal amount of the outstanding Securities of each Series affected
by such supplemental indenture (including consents obtained in connection with
a tender offer or exchange offer for the Securities of such Series), for the
purpose of adding any provisions to or changing in any manner or eliminating


 


38





















 


any of
the provisions of this Indenture or of any supplemental indenture hereto or of
modifying in any manner the rights of the Securityholders of each such Series.
Except as provided in Section 6.13, the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by
such waiver by notice to the Trustee (including consents obtained in connection
with a tender offer or exchange offer for the Securities of such Series) may
waive compliance by the Company with any provision of this Indenture or the
Securities with respect to such Series.


 


It shall not be necessary for the consent of the
Holders of Securities under this Section 9.2 to approve the particular
form of any proposed supplemental indenture hereto or waiver, but it shall be
sufficient if such consent approves the substance thereof. After a supplemental
indenture hereto or waiver under this Section becomes effective, the
Company shall mail to the Holders of Securities affected thereby and, if any
Bearer Securities affected thereby are outstanding, publish on one occasion in
an Authorized Newspaper, a notice briefly describing the supplemental indenture
or waiver. Any failure by the Company to mail or publish such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture or waiver.


 


Section 9.3.                                   Limitations.


 


Without the consent of each Securityholder affected,
an amendment or waiver may not:


 


(a)                                  change
the amount of Securities whose Holders must consent to an amendment, supplement
or waiver;


 


(b)                                 reduce
the rate of or extend the time for payment of interest (including default
interest) on any Security;


 


(c)                                  reduce
the principal or change the Stated Maturity of any Security or reduce the
amount of, or postpone the date fixed for, the payment of any sinking fund or
analogous obligation;


 


(d)                                 reduce
the principal amount of a Security issued with original issue discount or any
other Security payable upon acceleration of the maturity thereof;


 


(e)                                  waive
a Default or Event of Default in the payment of the principal of or interest,
if any, on any Security (except a rescission of acceleration of the Securities
of any Series by the Holders of at least a majority in principal amount of
the outstanding Securities of such Series and a waiver of the payment
default that resulted from such acceleration);


 


(f)                                    make
the principal of or interest, if any, on any Security payable in any currency
other than that stated in the Security;


 


(g)                                 make
any change in Section 6.8, 6.13, 9.3 (this sentence), 10.15 or 10.16;


 


39





















 


(h)                                 waive
a redemption payment with respect to any Security or change any of the
provisions with respect to the redemption of any Securities;


 


(i)                                     make
any change in Article XII that would adversely affect the rights of any
Securityholder in any material respect;


 


(j)                                     release
any security interest that may have been granted in favor of the
Securityholder; or


 


(k)                                  make
any change in a Securityholder’s ability to convert or exchange Securities in
any material respect.


 


Section 9.4.                                   Compliance
with Trust Indenture Act.


 


Every amendment to this Indenture or the Securities of
one or more Series shall be set forth in a supplemental indenture hereto
that complies with the TIA as then in effect.


 


Section 9.5.                                   Revocation
and Effect of Consents.


 


Until an amendment or waiver becomes effective, a
consent to it by a Holder of a Security is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that
evidences the same Debt as the consenting Holder’s Security, even if notation
of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his Security or portion of a
Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective.


 


Any amendment or waiver once effective shall bind
every Securityholder of each Series affected by such amendment or waiver
unless it is of the type described in any of clauses (a) through (k) of Section 9.3.
In that case, the amendment or waiver shall bind each Holder of a Security who
has consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same Debt as the consenting Holder’s Security.


 


The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Securityholders entitled to give
their consent or take any other action described above or required or permitted
to be taken pursuant to this Indenture. 
If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Securityholders at such record date
(or their duly assigned proxies), and only those Persons, shall be entitled to
give such consent or to revoke any consent previously given or to take any such
action, whether or not such Persons continue to be Holders after such record
date.


 


Section 9.6.                                   Notation
on or Exchange of Securities.


 


If an amendment changes the terms of any Security of
any Series, the Trustee may require the Holder of the Security to deliver such
Security to the Trustee.  The Trustee may
place an appropriate notation on the Security regarding the changed terms and
return such Security to the Holder. 
Alternatively, the Company in exchange for Securities of any Series may
issue and the Trustee shall authenticate upon request new Securities of that Series that
reflect the amendment or waiver.


 


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Section 9.7.                                   Trustee
Protected.


 


In executing, or accepting the additional trusts
created by, any supplemental indenture hereto permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 7.1) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee shall sign all supplemental indentures hereto, except that the Trustee
need not sign any supplemental indenture hereto that adversely affects its
rights.


 


Section 9.8.                                   Payment
for Consent.


 


Neither the Company nor any Affiliate of the Company
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture applicable to the Securities of any Series or
the Securities of any Series unless such consideration is offered to be
paid to all Holders of the Securities of such Series that so consent,
waive or agree to amend in the time frame set forth in solicitation documents
relating to such consent.


 


ARTICLE X.

MISCELLANEOUS


 


Section 10.1.                             Trust
Indenture Act Controls.


 


If any provision of this Indenture limits, qualifies,
or conflicts with another provision which is required or deemed to be included
in this Indenture by the TIA, such required or deemed provision shall control.


 


Section 10.2.                             Notices.


 


Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first-class mail:


 


	
  if to the
  Company:

  
	
   

  
	
  FairPoint
  Communications, Inc.

  
	
  521
  East Morehead Street, Suite 250

  
	
  Charlotte,
  North Carolina 28202

  
	
  Attention:
  Chief Financial Officer

  
	
   

  
	
  if to the
  Trustee:

  
	
  [                                                     ]

  
	
  [                                                     ]

  
	
  [                                                     ]

  
	
  Attention:
  [                                    ]

  



 


 


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


 


Any notice or communication to a Securityholder shall
be mailed by first-class mail to his address shown on the register kept by the
Registrar and, if any Bearer Securities are outstanding, published in an
Authorized Newspaper. Failure to mail a notice or communication to a
Securityholder of any Series or any defect in it shall not affect its
sufficiency with respect to other Securityholders of that or any other Series.


 


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


 


If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and each Agent at the same
time.


 


Section 10.3.                             Communication
by Holders with Other Holders.


 


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


 


Section 10.4.                             Certificate
and Opinion as to Conditions Precedent.


 


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


 


(a)                                  an
Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture 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 have been complied with.


 


Section 10.5.                             Statements
Required in Certificate or Opinion.


 


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


 


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


 


42





















 


(b)                                 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;


 


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


 


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


 


Section 10.6.                             Rules by
Trustee and Agents.


 


The Trustee may make reasonable rules for action
by or a meeting of Securityholders of one or more Series. Any Agent may make
reasonable rules and set reasonable requirements for its functions.


 


Section 10.7.                             Legal
Holidays.


 


Unless otherwise provided by Board Resolution,
supplemental indenture hereto or Officers’ Certificate for a particular Series,
a “LEGAL HOLIDAY” is any day that is not a Business Day. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.


 


Section 10.8.                             No
Recourse Against Others.


 


A director, officer, employee or stockholder, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.


 


Section 10.9.                             Counterparts.


 


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


 


Section 10.10.                       Governing
Laws.


 


THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.


 


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Section 10.11.                       No
Adverse Interpretation of Other Agreements.


 


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


 


Section 10.12.                       Successors.


 


All agreements of the Company in this Indenture and
the Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.


 


Section 10.13.                       Severability.


 


In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


 


Section 10.14.                       Table
of Contents, Headings, Etc.


 


The Table of Contents, Cross Reference Table, and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions hereof.


 


Section 10.15.                       Securities
in a Foreign Currency or in ECU.


 


Unless otherwise specified in a Board Resolution, a
supplemental indenture hereto or an Officers’ Certificate delivered pursuant to
Section 2.2 with respect to a particular Series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all Series or
all Series affected by a particular action at the time outstanding and, at
such time, there are outstanding Securities of any Series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such Series which shall be deemed to be
outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate at
such time. For purposes of this Section 10.15, “MARKET EXCHANGE RATE”
shall mean the noon Dollar buying rate in New York City for cable transfers of
that currency as published by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, Market Exchange Rate shall mean the rate of
exchange determined by the Commission of the European Union (or any successor
thereto) as published in the Official Journal of the European Union (such
publication or any successor publication, the “JOURNAL”). If such Market
Exchange Rate is not available for any reason with respect to such currency,
the Trustee shall use, in its sole discretion and without liability on its
part, such quotation of the Federal Reserve Bank of New York or, in the case of
ECUs, the rate of exchange as published in the Journal, as of the most recent
available date, or quotations or, in the case of ECUs, rates of exchange from
one or more major banks in The City of New York or in the country of issue of
the currency in question or, in the case of ECUs, in Luxembourg or such other
quotations or, in the case of ECUs, rates of exchange as the Trustee, upon
consultation with the Company, shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a Series


 


44





















 


denominated
in currency other than Dollars in connection with any action taken by Holders
of Securities pursuant to the terms of this Indenture.


 


All decisions and determinations of the Trustee
regarding the Market Exchange Rate or any alternative determination provided
for in the preceding paragraph shall be in its sole discretion and shall, in
the absence of manifest error, be conclusive to the extent permitted by law for
all purposes and irrevocably binding upon the Company and all Holders.


 


Section 10.16.                       Judgment
Currency.


 


The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of
obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest or other amount on the Securities of
any Series (the “REQUIRED CURRENCY”) into a currency in which a judgment
will be rendered (the “JUDGMENT CURRENCY”), the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which final unappealable judgment is entered, unless
such day is not a New York Banking Day, then, the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, any recovery pursuant to any judgment
(whether or not entered in accordance with Subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments, (ii) shall
be enforceable as an alternative or additional cause of action for the purpose
of recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable, and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, “NEW YORK BANKING DAY” means any day except a Saturday, Sunday or a
legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close.


 


ARTICLE XI.

SINKING FUNDS


 


Section 11.1.                             Applicability
of Article.


 


The provisions of this Article shall be
applicable to any sinking fund for the retirement of the Securities of a
Series, except as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture.


 


The minimum amount of any sinking fund payment
provided for by the terms of the Securities of any Series is herein
referred to as a “MANDATORY SINKING FUND PAYMENT” and any other amount provided
for by the terms of Securities of such Series is herein referred to as an “OPTIONAL
SINKING FUND PAYMENT.” If provided for by the


 


45





















 


terms
of Securities of any Series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 11.2. Each sinking fund
payment shall be applied to the redemption of Securities of any Series as
provided for by the terms of the Securities of such Series.


 


Section 11.2.                             Satisfaction of Sinking
Fund Payments with Securities.


 


The Company may, in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of any Series to
be made pursuant to the terms of such Securities (1) deliver outstanding
Securities of such Series to which such sinking fund payment is applicable
(other than any of such Securities previously called for mandatory sinking fund
redemption) and (2) apply as credit Securities of such Series to
which such sinking fund payment is applicable and which have been redeemed
either at the election of the Company pursuant to the terms of such Series of
Securities (except pursuant to any mandatory sinking fund) or through the
application of permitted Optional Sinking Fund Payments or other optional
redemptions pursuant to the terms of such Securities; provided that such
Securities have not been previously so credited. Such Securities shall be
received by the Trustee, together with an Officers’ Certificate with respect
thereto, not later than 15 days prior to the date on which the Trustee begins
the process of selecting Securities for redemption, and shall be credited for
such purpose by the Trustee at the price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities in lieu of cash payments pursuant to this Section 11.2, the
principal amount of Securities of such Series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such Series for redemption, except upon
receipt of a Company Order that such action be taken, and such cash payment
shall be held by the Trustee or a Paying Agent and applied to the next succeeding
sinking fund payment; provided, however, that the Trustee or such Paying Agent
shall from time to time upon receipt of a Company Order pay over and deliver to
the Company any cash payment so being held by the Trustee or such Paying Agent
upon delivery by the Company to the Trustee of Securities of that Series purchased
by the Company having an unpaid principal amount equal to the cash payment
required to be released to the Company.


 


Section 11.3.                             Redemption
of Securities for Sinking Fund.


 


Not less than 45 days (unless otherwise indicated in
the Board Resolution, supplemental indenture hereto or Officers’ Certificate in
respect of a particular Series of Securities) prior to each sinking fund
payment date for any Series of Securities, the Company will deliver to the
Trustee an Officers’ Certificate specifying the amount of the next ensuing Mandatory
Sinking Fund Payment for that Series pursuant to the terms of that Series,
the portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and
crediting of Securities of that Series pursuant to Section 11.2, and
the optional amount, if any, to be added in cash to the next ensuing Mandatory Sinking
Fund Payment, and the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days (unless otherwise indicated in the
Board Resolution, supplemental indenture hereto or Officers’ Certificate in
respect of a particular Series of Securities) before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 3.2 and
cause notice of the


 


46





















 


redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.3. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.


 


ARTICLE XII.

SUBORDINATION OF SECURITIES


 


Section 12.1.                             Agreement
of Subordination.


 


The Company covenants and agrees, and each Holder of
Securities issued hereunder by his acceptance thereof likewise covenants and
agrees, that all Securities shall be issued subject to the provisions of this Article XII;
and each Person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees to be bound by
such provisions.


 


The payment of the principal of, premium, if any, and
interest on all Securities (including, but not limited to, the redemption price
with respect to the Securities called for redemption in accordance with Article 3
as provided in this Indenture) issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and subject in right of payment
to the prior payment in full of all Senior Indebtedness, whether outstanding at
the date of this Indenture or thereafter incurred.


 


No provision of this Article XII shall prevent
the occurrence of any Default or Event of Default hereunder.


 


Section 12.2.                             Payments
to Holders.


 


No payment shall be made with respect to the principal
of, or premium, if any, or interest on the Securities (including, but not
limited to, the redemption price with respect to the Securities to be called
for redemption in accordance with Article III
as provided in this Indenture), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 12.5, if:


 


(i)                                     a
default in the payment of principal, premium, interest, rent or other
obligations due on any Senior Indebtedness occurs and is continuing (or, in the
case of Senior Indebtedness for which there is a period of grace, in the event
of such a default that continues beyond the period of grace, if any, specified
in the instrument or lease evidencing such Senior Indebtedness), unless and
until such default shall have been cured or waived or shall have ceased to
exist; or


 


(ii)                                  a
default, other than a payment default, on Designated Senior Indebtedness occurs
and is continuing that then permits holders of such Designated Senior
Indebtedness to accelerate its maturity and the Trustee receives a notice of
the default (a “PAYMENT BLOCKAGE NOTICE”) from a Representative or the Company.


 


If the Trustee receives any Payment Blockage Notice
pursuant to clause (ii) above, no subsequent Payment Blockage Notice shall
be effective for purposes of this Section unless


 


47





















 


and
until (A) at least 365 days shall have elapsed since the initial
effectiveness of the immediately prior Payment Blockage Notice, and (B) all
scheduled payments of principal, premium, if any, and interest on the
Securities that have come due have been paid in full in cash. No nonpayment
default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice.


 


The Company may and shall resume payments on and
distributions in respect of the Securities upon the earlier of:


 


(1)                                  the
date upon which the default is cured or waived or ceases to exist, or


 


(2)                                  in
the case of a default referred to in clause (ii) above, 179 days pass
after notice is received if the maturity of such Designated Senior Indebtedness
has not been accelerated, unless this Article XII otherwise prohibits the
payment or distribution at the time of such payment or distribution.


 


Upon any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or
to become due upon all Senior Indebtedness shall first be paid in full in cash
or other payment satisfactory to the holders of such Senior Indebtedness, or
payment thereof in accordance with its terms provided for in cash or other
payment satisfactory to the holders of such Senior Indebtedness, before any
payment is made on account of the principal of, premium, if any, or interest on
the Securities (except payments made pursuant to Article VI from monies
deposited with the Trustee pursuant thereto prior to commencement of
proceedings for such dissolution, winding-up, liquidation or reorganization);
and upon any such dissolution or winding-up or liquidation or reorganization of
the Company or bankruptcy, insolvency, receivership or other proceeding, any
payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Securities or the Trustee would be entitled, except for the provision of this Article XII,
shall (except as aforesaid) be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Holders of the Securities or by the Trustee under
this Indenture if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts
of Senior Indebtedness held by such holders, or as otherwise required by law or
a court order) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Indebtedness in full, in cash
or other payment satisfactory to the holders of such Senior Indebtedness, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Indebtedness, before any payment or distribution or provision
therefor is made to the Holders of the Securities or to the Trustee.


 


48





















 


For purposes of this Article XII, the words, “cash,
property or securities” shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the payment
of which is subordinated at least to the extent provided in this Article XII
with respect to the Securities to the payment of all Senior Indebtedness which
may at the time be outstanding; provided that (i) the Senior Indebtedness
is assumed by the new corporation, if any, resulting from any reorganization or
readjustment, and (ii) the rights of the holders of Senior Indebtedness
(other than leases which are not assumed by the Company or the new corporation,
as the case may be) are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with, or
the merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article V shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 12.2 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article V.


 


In the event of the acceleration of the Securities
because of an Event of Default, no payment or distribution shall be made to the
Trustee or any Holder of Securities in respect of the principal of, premium, if
any, or interest on the Securities (including, but not limited to, the
redemption price with respect to the Securities called for redemption in
accordance with Article 3 as provided in the Indenture), except payments
and distributions made by the Trustee as permitted by the first or second
paragraph of Section 12.5, until all Senior Indebtedness has been paid in
full in cash or other payment satisfactory to the holders of Senior
Indebtedness or such acceleration is rescinded in accordance with the terms of
this Indenture. If payment of the Securities is accelerated because of an Event
of Default, the Company shall promptly notify holders of Senior Indebtedness of
the acceleration at the address set forth in the notice from the Agent (or
successor agent) to the Trustee as being the address to which the Trustee
should send its notice pursuant to this Section 12.2, unless there are no
payment obligations of the Company thereunder and all obligations thereunder to
extend credit have been terminated or expired.


 


In the event that, notwithstanding the foregoing
provisions, any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or
securities (including, without limitation, by way of setoff or otherwise),
prohibited by the foregoing, shall be received by the Trustee or the Holders of
the Securities before all Senior Indebtedness is paid in full in cash or other
payment satisfactory to the holders of such Senior Indebtedness, or provision
is made for such payment thereof in accordance with its terms in cash or other
payment satisfactory to the holders of such Senior Indebtedness, such payment
or distribution shall be held in trust for the benefit of and shall be paid
over or delivered to the holders of Senior Indebtedness or their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated by the Company,
for application to the payment of all Senior Indebtedness remaining unpaid to
the extent necessary to pay all Senior Indebtedness in full in cash or other
payment satisfactory to the holders of such Senior Indebtedness, after giving
effect to any concurrent payment or distribution to or for the holders of such
Senior Indebtedness.


 


49





















 


Nothing in this Section 12.2 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.7.
This Section 12.2 shall be subject to the further provisions of Section 12.5.


 


Section 12.3.                             Subrogation
of Securities and Relative Rights.


 


Subject to the payment in full of all Senior
Indebtedness, the rights of the Holders of the Securities shall be subrogated
to the extent of the payments or distributions made to the holders of such
Senior Indebtedness pursuant to the provisions of this Article XII
(equally and ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to other indebtedness of the Company to
substantially the same extent as the Securities are subordinated and is
entitled to like rights of subrogation) to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until the
principal, premium, if any, and interest on the Securities shall be paid in
full; and, for the purposes of such subrogation, no payments or distributions
to the holders of the Senior Indebtedness of any cash, property or securities
to which the Holders of the Securities or the Trustee would be entitled except
for the provisions of this Article XII, and no payment over pursuant to
the provisions of this Article XII, to or for the benefit of the holders
of Senior Indebtedness by Holders of the Securities or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities, be deemed to be a payment by the Company to
or on account of the Senior Indebtedness; and no payments or distributions of
cash, property or securities to or for the benefit of the Holders of the
Securities pursuant to the subrogation provisions of this Article XII,
which would otherwise have been paid to the holders of Senior Indebtedness
shall be deemed to be a payment by the Company to or for the account of the
Securities. It is understood that the provisions of this Article XII are
and are intended solely for the purposes of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.


 


Nothing contained in this Article XII or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as among the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Securities
the principal of (and premium, if any) and interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article XII of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.


 


Upon any payment or distribution of assets of the
Company referred to in this Article XII, the Trustee, subject to the
provisions of Section 7.1, and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee,


 


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agent
or other Person making such payment or distribution, delivered to the Trustee
or to the Holders of the Securities, for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon and all other facts pertinent thereto or to this Article XII.


 


Section 12.4.                             Authorization
to Effect Subordination.


 


Each Holder of a Security by the holder’s acceptance
thereof authorizes and directs the Trustee on the holder’s behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in this Article XII and appoints the Trustee to act as the holder’s
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of Debt in the form required in any proceeding
referred to in Section 6.3 hereof at least 30 days before the expiration
of the time to file such claim, the holders of any Senior Indebtedness or their
representatives are hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Securities.


 


Section 12.5.                             Notice
to Trustee.


 


The Company shall give prompt written notice in the
form of an Officers’ Certificate to a Responsible Officer of the Trustee and to
any paying agent of any fact known to the Company which would prohibit the
making of any payment of monies to or by the Trustee or any paying agent in
respect of the Securities pursuant to the provisions of this Article XII.
Notwithstanding the provisions of this Article XII or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities pursuant to the provisions of
this Article XII, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof at the Corporate Trust Office from
the Company (in the form of an Officers’ Certificate) or a Representative or a
holder or holders of Senior Indebtedness or from any trustee thereof; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 7.1, shall be entitled in all respects to assume
that no such facts exist; provided that if on a date not fewer than two
Business Days prior to the date upon which by the terms hereof any such monies
may become payable for any purpose (including, without limitation, the payment
of the principal of, or premium, if any, or interest on any Security) the
Trustee shall not have received, with respect to such monies, the notice
provided for in this Section 12.5, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.


 


Notwithstanding anything in this Article XII to
the contrary, nothing shall prevent any payment by the Trustee to the Holders
of monies deposited with it pursuant to Section 8.1, 8.3 or 8.4 and any
such payment shall not be subject to the provisions of Section 12.1 or
12.2.


 


The Trustee, subject to the provisions of Section 7.1,
shall be entitled to rely on the delivery to it of a written notice by a
Representative or a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a Representative or a holder of Senior Indebtedness or
a trustee on behalf of


 


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any
such holder or holders. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article XII, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article XII, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.


 


Section 12.6.                             Trustee’s
Relation to Senior Indebtedness.


 


The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article XII in respect of any
Senior Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in Section 7.11 or elsewhere in
this Indenture shall deprive the Trustee of any of its rights as such holder.


 


With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XII, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and, subject to the provisions of Section 7.1, the Trustee
shall not be liable to any holder of Senior Indebtedness if it shall pay over
or deliver to Holders of Securities, the Company or any other Person money or
assets to which any holder of Senior Indebtedness shall be entitled by virtue
of this Article XII or otherwise.


 


Section 12.7.                             No
Impairment of Subordination.


 


No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof which any such holder
may have or otherwise be charged with.


 


Section 12.8.                             Article Applicable
to Paying Agents.


 


If at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
“Trustee” as used in this Article shall (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that the first paragraph of Section 12.5 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.


 


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Section 12.9.                             Senior
Indebtedness Entitled to Rely.


 


The holders of Senior Indebtedness (including, without
limitation, Designated Senior Indebtedness) shall have the right to rely upon
this Article XII, and no amendment or modification of the provisions
contained herein shall diminish the rights of such holders unless such holders
shall have agreed in writing thereto.


 


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


 


	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  FAIRPOINT COMMUNICATIONS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Its:

  
	
   

  	
   

  
	
   

  	
  THE TRUSTEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                                                     ]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Its: