Exhibit 4.1


 




 





 


FAIRPOINT COMMUNICATIONS, INC.


 


131/8% SENIOR NOTES DUE 2018


 






 


INDENTURE


 


DATED AS OF JULY 29, 2009


 






 


U.S. BANK NATIONAL ASSOCIATION


 


TRUSTEE


 




 





 

















 


CROSS-REFERENCE TABLE(1)


 


	
  TIA

  	
   

  	
  Indenture

  
	
  Section

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.03, 7.08,7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.06

  
	
  (b)

  	
   

  	
  12.03

  
	
  (c)

  	
   

  	
  12.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.06, 7.07

  
	
  (c)

  	
   

  	
  7.06, 12.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03, 4.04, 12.05

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  12.04, 12.05

  
	
  (c)(2)

  	
   

  	
  12.04, 12.05

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  12.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (a) (last sentence)

  	
   

  	
  2.10

  
	
  (b)

  	
   

  	
  6.07

  
	
  3.17(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  



 






(1)                                  N.A. means not
applicable.


 


This Cross-Reference Table is not part of this Indenture.


 


i

















 


	
  3.17(b)

  	
   

  	
  2.04

  
	
  3.18(a)

  	
   

  	
  12.01

  
	
  3.18(b)

  	
   

  	
  N.A.

  
	
  3.18(c)

  	
   

  	
  12.01

  



 


ii

















 


TABLE OF CONTENTS


 


ARTICLE One

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


	
   

  	
   

  	
  Page

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Other Definitions

  	
  22

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  23

  
	
  Section 1.04.

  	
  Rules of Construction

  	
  23

  
	
   

  
	
  ARTICLE Two

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and Dating

  	
  24

  
	
  Section 2.02.

  	
  Execution and Authentication

  	
  25

  
	
  Section 2.03.

  	
  Methods of Receiving Payments on the Notes

  	
  26

  
	
  Section 2.04.

  	
  Registrar and Paying Agent

  	
  26

  
	
  Section 2.05.

  	
  Paying Agent to Hold Money in Trust

  	
  26

  
	
  Section 2.06.

  	
  Holder Lists

  	
  27

  
	
  Section 2.07.

  	
  Transfer and Exchange

  	
  27

  
	
  Section 2.08.

  	
  Replacement Notes

  	
  38

  
	
  Section 2.09.

  	
  Outstanding Notes

  	
  38

  
	
  Section 2.10.

  	
  Treasury Notes

  	
  38

  
	
  Section 2.11.

  	
  Temporary Notes

  	
  39

  
	
  Section 2.12.

  	
  Cancellation

  	
  39

  
	
  Section 2.13.

  	
  Defaulted Interest

  	
  39

  
	
  Section 2.14.

  	
  CUSIP Numbers

  	
  39

  
	
   

  
	
  ARTICLE Three

  
	
  REDEMPTION AND OFFERS TO PURCHASE

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Notices to Trustee

  	
  40

  
	
  Section 3.02.

  	
  Selection of Notes to Be Redeemed

  	
  40

  
	
  Section 3.03.

  	
  Notice of Redemption

  	
  40

  
	
  Section 3.04.

  	
  Effect of Notice of Redemption

  	
  41

  
	
  Section 3.05.

  	
  Deposit of Redemption Price

  	
  41

  
	
  Section 3.06.

  	
  Notes Redeemed in Part

  	
  42

  
	
  Section 3.07.

  	
  Optional Redemption

  	
  42

  
	
  Section 3.08.

  	
  Repurchase Offers

  	
  42

  
	
  Section 3.09.

  	
  No Sinking Fund

  	
  44

  
	
   

  
	
  ARTICLE Four

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of Notes

  	
  44

  
	
  Section 4.02.

  	
  Maintenance of Office or Agency

  	
  44

  
	
  Section 4.03.

  	
  Reports

  	
  45

  



 


iii

















 


	
  Section 4.04.

  	
  Compliance Certificate

  	
  46

  
	
  Section 4.05.

  	
  Taxes

  	
  47

  
	
  Section 4.06.

  	
  Stay, Extension and Usury Laws

  	
  47

  
	
  Section 4.07.

  	
  Restricted Payments

  	
  47

  
	
  Section 4.08.

  	
  Dividend and Other Payment Restrictions Affecting
  Restricted Subsidiaries

  	
  50

  
	
  Section 4.09.

  	
  Incurrence of Indebtedness

  	
  52

  
	
  Section 4.10.

  	
  Asset Sales

  	
  54

  
	
  Section 4.11.

  	
  Transactions with Affiliates

  	
  56

  
	
  Section 4.12.

  	
  Liens

  	
  57

  
	
  Section 4.13.

  	
  Business Activities

  	
  58

  
	
  Section 4.14.

  	
  Offer to Repurchase upon a Change of Control

  	
  58

  
	
  Section 4.15.

  	
  [INTENTIONALLY LEFT BLANK]

  	
  59

  
	
  Section 4.16.

  	
  Designation of Restricted and Unrestricted Subsidiaries

  	
  59

  
	
  Section 4.17.

  	
  Payments for Consent

  	
  60

  
	
  Section 4.18.

  	
  Guarantees

  	
  60

  
	
  Section 4.19.

  	
  Sale and Leaseback Transactions

  	
  61

  
	
   

  
	
  ARTICLE Five

  
	
  SUCCESSORS

  
	
   

  
	
  Section 5.01.

  	
  Merger, Consolidation or Sale of Assets

  	
  61

  
	
  Section 5.02.

  	
  Successor Corporation Substituted

  	
  62

  
	
   

  
	
  ARTICLE Six

  
	
  DEFAULTS AND REMEDIES

  
	
   

  
	
  Section 6.01.

  	
  Events of Default

  	
  62

  
	
  Section 6.02.

  	
  Acceleration

  	
  64

  
	
  Section 6.03.

  	
  Other Remedies

  	
  64

  
	
  Section 6.04.

  	
  Waiver of Past Defaults

  	
  65

  
	
  Section 6.05.

  	
  Control by Majority

  	
  65

  
	
  Section 6.06.

  	
  Limitation on Suits

  	
  65

  
	
  Section 6.07.

  	
  Rights of Holders of Notes to Receive Payment

  	
  66

  
	
  Section 6.08.

  	
  Collection Suit by Trustee

  	
  66

  
	
  Section 6.09.

  	
  Trustee May File Proofs of Claim

  	
  66

  
	
  Section 6.10.

  	
  Priorities

  	
  66

  
	
  Section 6.11.

  	
  Undertaking for Costs

  	
  67

  
	
   

  
	
  ARTICLE Seven

  
	
  TRUSTEE

  
	
   

  
	
  Section 7.01.

  	
  Duties of Trustee

  	
  67

  
	
  Section 7.02.

  	
  Certain Rights of Trustee

  	
  68

  
	
  Section 7.03.

  	
  Individual Rights of Trustee

  	
  69

  
	
  Section 7.04.

  	
  Trustee’s Disclaimer

  	
  69

  
	
  Section 7.05.

  	
  Notice of Defaults

  	
  69

  
	
  Section 7.06.

  	
  Reports by Trustee to Holders of the Notes

  	
  70

  
	
  Section 7.07.

  	
  Compensation and Indemnity

  	
  70

  
	
  Section 7.08.

  	
  Replacement of Trustee

  	
  71

  
	
  Section 7.09.

  	
  Successor Trustee by Merger, Etc.

  	
  72

  
	
  Section 7.10.

  	
  Eligibility;
  Disqualification

  	
  72

  



 


iv

















 


	
  Section 7.11.

  	
  Preferential Collection of Claims Against Issuer

  	
  72

  
	
   

  
	
  ARTICLE Eight

  
	
  DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  
	
  Section 8.01.

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
  72

  
	
  Section 8.02.

  	
  Legal Defeasance and Discharge

  	
  72

  
	
  Section 8.03.

  	
  Covenant Defeasance

  	
  73

  
	
  Section 8.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
  73

  
	
  Section 8.05.

  	
  Deposited Money and Government Securities To Be Held in
  Trust; Other Miscellaneous Provisions

  	
  75

  
	
  Section 8.06.

  	
  Repayment to the Issuer

  	
  75

  
	
  Section 8.07.

  	
  Reinstatement

  	
  75

  
	
   

  
	
  ARTICLE Nine

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  
	
  Section 9.01.

  	
  Without Consent of Holders of Notes

  	
  76

  
	
  Section 9.02.

  	
  With Consent of Holders of Notes

  	
  76

  
	
  Section 9.03.

  	
  Compliance with Trust Indenture Act

  	
  78

  
	
  Section 9.04.

  	
  Revocation and Effect of Consents

  	
  78

  
	
  Section 9.05.

  	
  Notation on or Exchange of Notes

  	
  79

  
	
  Section 9.06.

  	
  Trustee To Sign Amendments, Etc.

  	
  79

  
	
   

  
	
  ARTICLE Ten

  
	
  NOTE GUARANTEES

  
	
   

  
	
  Section 10.01.

  	
  Guarantee

  	
  79

  
	
  Section 10.02.

  	
  Limitation on Guarantor Liability

  	
  80

  
	
  Section 10.03.

  	
  Execution and Delivery of Note Guarantee

  	
  80

  
	
  Section 10.04.

  	
  Guarantors May Consolidate, Etc., on Certain Terms

  	
  81

  
	
  Section 10.05.

  	
  Release of Guarantor

  	
  81

  
	
   

  	
   

  	
   

  
	
  ARTICLE Eleven

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Satisfaction and Discharge

  	
  82

  
	
  Section 11.02.

  	
  Deposited Money and Government Securities To Be Held in
  Trust; Other Miscellaneous Provisions

  	
  83

  
	
  Section 11.03.

  	
  Repayment to the Issuer

  	
  83

  
	
   

  	
   

  	
   

  
	
  ARTICLE Twelve

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Trust Indenture Act Controls

  	
  84

  
	
  Section 12.02.

  	
  Notices

  	
  84

  
	
  Section 12.03.

  	
  Communication by Holders of Notes with Other Holders of
  Notes

  	
  85

  
	
  Section 12.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  85

  
	
  Section 12.05.

  	
  Statements Required in Certificate or Opinion

  	
  85

  
	
  Section 12.06.

  	
  Rules by Trustee and Agents

  	
  86

  
	
  Section 12.07.

  	
  No Personal Liability of
  Directors, Officers, Employees and Stockholders

  	
  86

  



 


v

















 


	
  Section 12.08.

  	
  Governing Law

  	
  86

  
	
  Section 12.09.

  	
  Consent to Jurisdiction

  	
  86

  
	
  Section 12.10.

  	
  No Adverse Interpretation of Other Agreements

  	
  86

  
	
  Section 12.11.

  	
  Successors

  	
  87

  
	
  Section 12.12.

  	
  Severability

  	
  87

  
	
  Section 12.13.

  	
  Counterpart Originals

  	
  87

  
	
  Section 12.14.

  	
  Acts of Holders

  	
  87

  
	
  Section 12.15.

  	
  Benefit of Indenture

  	
  88

  
	
  Section 12.16.

  	
  Table of Contents,
  Headings, Etc.

  	
  88

  



 


EXHIBITS


 


	
  Exhibit A

  	
  FORM OF
  NOTE

  
	
   

  	
   

  
	
  Exhibit B

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  
	
   

  	
   

  
	
  Exhibit C

  	
  FORM OF
  CERTIFICATE OF EXCHANGE

  
	
   

  	
   

  
	
  Exhibit D
  

  	
  FORM OF
  CERTIFICATE FROM ACQUIRING ACCREDITED INVESTOR 

  
	
   

  	
   

  
	
  Exhibit E
  

  	
  FORM OF
  SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS 

  



 


vi
















 


INDENTURE dated as of July 29, 2009 between
FairPoint Communications, Inc., a Delaware corporation (the “Issuer”),
and U.S. Bank National Association, as Trustee.


 


The Issuer has duly authorized the execution and
delivery of this Indenture to provide for the issuance of its 131/8% Senior Notes due 2018 to be issued as provided in
this Indenture.  All things necessary to
make this Indenture a valid agreement of the Issuer, in accordance with its
terms, have been done.


 


The Issuer and the Trustee (as defined below) agree
as follows for the benefit of each other and for the equal and ratable benefit
of the Holders (as defined below) of the Issuer’s 131/8% Senior Notes due 2018:


 


ARTICLE ONE

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01.                             Definitions.


 


“144A Global Note” means a Global Note
substantially in the form of Exhibit A bearing the Global Note Legend and
the Private Placement Legend and deposited with or on behalf of, and registered
in the name of, the Depositary or its nominee, issued in a denomination equal
to the outstanding principal amount at maturity of the Notes issued to QIBs in
the Exchange Offer.


 


“Accredited Investor” means an “accredited
investor” as defined in Rule 501(a), which is not also a QIB.


 


“Accredited Investor
Global Note” means a Global Note substantially in the form of Exhibit A
bearing the Global Note Legend and the Private Placement Legend and deposited
with or on behalf of, and registered in the name of, the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount at
maturity of the Notes issued to Accredited Investors in the Exchange Offer.


 


“Acquisition Adjustment” shall mean, (A) an
amount, not to exceed $71.0 million in the aggregate, equal to the sum, without
duplication (but only to the extent deducted in determining Consolidated Net
Income for such period), of (i) training, conversion of data and any other
items expensed in relation to systems stand-up/conversion arising solely from
the Transactions, (ii) one-time expenses related to the recruitment of
employees hired within three hundred and sixty (360) days of the Original Issue
Date and (iii) expenses related to (1) auditing, tax and compliance
with the Sarbanes-Oxley Act of 2002, (2) marketing and community
relations, (3) investor relations and (4) any other consulting,
contract services or legal expenses, for each of (1), (2), (3) and (4) above
that would not have occurred absent the Merger and accrued within three hundred
and sixty (360) days of the Original Issue Date, (B) an amount, not to
exceed $15.0 million in the aggregate, equal to (but only to the extent
deducted in determining Consolidated Net Income for such period) any cash
payments that are reclassified from capital expenditures to operating expenses
due to changes in the Issuer’s accounting policies, and (C) an amount, not
to exceed $34.0 million in the aggregate, equal to (but only to the extent
deducted in determining Consolidated Net Income for such period) the data
conversion costs related to the set-up of the Transition Services Agreement
Incurred in any one fiscal quarter after the Original Issue Date.


 


“Affiliate” of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person.  For
purposes of this definition, “control,” as used with respect to any Person,
shall mean the possession, directly or indirectly, 


 

















 


of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise.  For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” shall have correlative
meanings.


 


“Agent” means any Registrar or Paying Agent.


 


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


 


“Asset Sale” means:


 


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


 


(2)           the issuance of Equity Interests by any of the
Issuer’s Restricted Subsidiaries or the sale by the Issuer or any Restricted
Subsidiary of the Issuer of Equity Interests in any of the Issuer’s
Subsidiaries (other than directors’ qualifying shares and shares issued to
foreign nationals to the extent required by applicable law).


 


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


 


(1)           any single transaction or series of related
transactions that involves assets or Equity Interests having a Fair Market
Value of less than $25.0 million;


 


(2)           a transfer of assets or Equity Interests between or
among the Issuer and its Restricted Subsidiaries;


 


(3)           an issuance of Equity Interests by a Restricted
Subsidiary of the Issuer to the Issuer or to another Restricted Subsidiary of
the Issuer;


 


(4)           the sale or lease of equipment, inventory, accounts
receivable or other assets in the ordinary course of business;


 


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


 


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


 


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


 


(8)           any sale or disposition of any property or equipment
that has become damaged, surplus, worn out or obsolete;


 


(9)           the creation of a Lien not prohibited by this
Indenture;


 


(10)         any sale of Equity Interests in, or Indebtedness or
other securities of, an Unrestricted Subsidiary;


 


2

















 


(11)         licenses of intellectual property;


 


(12)         any disposition of Designated Noncash Consideration;
provided that such disposition increases
the amount of Net Proceeds of the Asset Sale that resulted in such Designated
Noncash Consideration;


 


(13)         any foreclosure upon any assets of the Issuer or any
of its Restricted Subsidiaries pursuant to the terms of a Lien not prohibited
by the terms of this Indenture; provided that
such foreclosure does not otherwise constitute a Default under this Indenture;
and


 


(14)         any release of intangible claims or rights in
connection with the loss or settlement of a bona fide lawsuit, dispute, or
controversy.


 


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


 


“Bankruptcy Law” means title 11 of the United
States Code or any similar federal or state law for the relief of debtors.


 


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


 


“Board of Directors” means:


 


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


 


(2)           with respect to a partnership, the Board of
Directors of the general partner of the partnership; and


 


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


 


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


 


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


 


3

















 


“Capital Lease Obligation”
means, at the time any determination thereof is to be made, the amount of the
liability in respect of a capital lease that would at that time be required to
be capitalized on a balance sheet in accordance with GAAP.


 


“Capital Stock” means:


 


(1)           in the case of a corporation, corporate stock;


 


(2)           in the case of an association or business entity,
any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;


 


(3)           in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited); and


 


(4)           any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.


 


“Cash Equivalents”
means:


 


(1)           U.S. dollars and foreign currency received in the
ordinary course of business or exchanged into U.S. dollars within 180 days;


 


(2)           securities issued or directly and fully guaranteed
or insured by the United States government or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is
pledged in support thereof), maturing, unless such securities are deposited to
defease any Indebtedness, not more than one year from the date of acquisition;


 


(3)           certificates of deposit and eurodollar time deposits
with maturities of one year or less from the date of acquisition, bankers’
acceptances with maturities not exceeding one year and overnight bank deposits,
in each case, with any lender party under the Credit Agreement or any domestic
commercial bank having capital and surplus in excess of $500.0 million and a
rating at the time of acquisition thereof of P-1 or better from Moody’s
Investors Service, Inc. or A-1 or better from Standard & Poor’s
Rating Services;


 


(4)           repurchase obligations for underlying securities of
the types described in clauses (2) and (3) above entered into with
any financial institution meeting the qualifications specified in clause (3) above;


 


(5)           commercial paper issued by a corporation (other than
an Affiliate of the Issuer) rated at least “A-2” or higher from Moody’s
Investors Service, Inc. or Standard & Poor’s Rating Services and
in each case maturing within one year after the date of acquisition;


 


(6)           securities issued and fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, rated at least “A” by Moody’s
Investors Service, Inc. or Standard & Poor’s Rating Services and
having maturities of not more than one year from the date of acquisition; and


 


(7)           money market funds at least 95% of the assets of
which constitute Cash Equivalents of the kinds described in clauses (1) through
(6) of this definition.


 


4

















 


“Change of Control” means the occurrence of
any of the following (other than in connection with the Transactions):


 


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


 


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


 


(3)           any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) becomes the Beneficial
Owner, directly or indirectly, of 50% or more of the voting power of the Voting
Stock of the Issuer;


 


(4)           the first day on which a majority of the members of
the Board of Directors of the Issuer are not Continuing Directors; or


 


(5)           the Issuer consolidates with, or merges with or
into, any Person, or any Person consolidates with, or merges with or into the Issuer,
in any such event pursuant to a transaction in which any of the outstanding
Voting Stock of the Issuer or such other Person is converted into or exchanged
for cash, securities or other property, other than any such transaction where (A) the
Voting Stock of the Issuer outstanding immediately prior to such transaction is
converted into or exchanged for Voting Stock (other than Disqualified Stock) of
the surviving or transferee Person constituting a majority of the outstanding
shares of such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance) and (B) immediately after such
transaction, no “person” or “group” (as such terms are used in Section 13(d) and
14(d) of the Exchange Act), becomes, directly or indirectly, the
Beneficial Owner of 50% or more of the voting power of the Voting Stock of the
surviving or transferee Person.


 


“Clearstream”
means Clearstream Banking S.A. and any successor thereto.


 


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


 


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


 


“Consolidated Cash Flow” means, with respect
to any specified Person for any period, the Consolidated Net Income of such
Person for such period plus, without
duplication for any period, Consolidated Net Income for such period adjusted
by:


 


(1)           adding thereto, an amount equal to the sum, without
duplication (but only to the extent deducted in determining Consolidated Net
Income for such period), of:


 


(a)            provisions for taxes based on income,


 


(b)           Consolidated Interest Expense,


 


(c)            amortization and depreciation expense (including any
amortization or write-off related to the write-up of any assets as a result of
purchase accounting and the write-off of deferred financing costs),


 


5

















 


(d)           losses on sales of assets (excluding sales in the
ordinary course of business) and other extraordinary losses,


 


(e)            the non-cash portion of any retirement or pension
plan expense Incurred by the Issuer or any of its Subsidiaries,


 


(f)            all one-time cash costs and expenses paid with
respect to advisory services, financing sources and other advisors retained
prior to the Original Issue Date with respect to the Transactions during such
period,


 


(g)           expenses Incurred under the Transition Services
Agreement during such period; provided that
such expenses are Incurred on or prior to the date that is 15 months after
the Original Issue Date,


 


(h)           any other non-cash charges (including non-cash costs
arising from implementation of SFAS 106 and SFAS 109) accrued by the Issuer and
its Subsidiaries during such period (except to the extent any such charge will
require a cash payment in a future period),


 


(i)             the Acquisition Adjustment for such period; and


 


(B)           subtracting therefrom, an amount equal to the sum,
without duplication (but only to the extent included in determining
Consolidated Net Income for such period), of:


 


(a)            gains on sales of assets (excluding sales in the
ordinary course of business) and other extraordinary gains and


 


(b)           all non-cash gains and non-cash income accrued by
the specified Person and its Subsidiaries during such period, all as determined
for the Issuer and its Subsidiaries on a consolidated basis in accordance with
GAAP.  For the avoidance of doubt, it is
understood and agreed that, to the extent any net income (or loss) of any
Subsidiary is excluded from the calculation of Consolidated Net Income in
accordance with the definition thereof contained herein, any add-backs to, or
deductions from, Consolidated Net Income in determining Consolidated Cash Flow
as provided above shall be calculated in a fashion consistent with the limitations
and/or exclusions provided in the definition of Consolidated Net Income
contained herein.


 


“Consolidated Interest Expense” means, for
any period, the sum of


 


(1)           total interest
expense (including the portion that is attributable to Indebtedness represented
by Capital Lease Obligations in accordance with GAAP) of the Issuer and its Subsidiaries
on a consolidated basis with respect to all outstanding Indebtedness of the
Issuer and its Subsidiaries (including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers’ acceptance financing and without duplication net costs and/or net
benefits under Indebtedness represented by Hedging Obligations, but excluding,
however, all non-cash interest expense to the extent included in total interest
expense and the amortization of deferred financing costs) plus


 


(2)           the product of (x) the
amount of all cash dividend requirements (whether or not declared or paid) on
Disqualified Stock paid, accrued or scheduled to be paid or accrued during such
period multiplied by (y) a fraction, the numerator of which is one and the
denominator of 


 


6

















 


which is one minus the then current effective consolidated Federal,
state, local and foreign tax rate of the Issuer as reflected in the audited
consolidated financial statements of the Issuer for its most recently completed
fiscal year, which amounts described in this clause (2) shall be treated
as interest expense of the Issuer and its Subsidiaries for purposes of this
definition regardless of the treatment of such amounts under GAAP; provided that, for the purposes of any determination of
Consolidated Interest Expense for any period ending on or prior to December 31,
2008, Consolidated Interest Expense for such period shall be Consolidated
Interest Expense for the portion of such period occurring on and after the
Original Issue Date multiplied by a fraction the numerator of which is 365 and
the denominator of which is the number of days elapsed from the Original Issue
Date to the last day of such period (in each case take as one accounting
period); provided, further, that for the purposes of this definition, any
dividends or interest, as applicable, paid on Permitted Junior Capital that is
issued and outstanding pursuant to Section 4.09(b)(xv) and any accrued
dividends or interests, as applicable, paid in kind thereon shall be deemed to
be excluded from the calculation of “Consolidated Interest Expense”.


 


“Consolidated Leverage Ratio” means, as of
any date of determination, the ratio of:


 


(1)           the aggregate outstanding amount of Indebtedness of
the Issuer and its Restricted Subsidiaries as of such date of determination on
a consolidated basis (subject to the terms described in the paragraph (2) below)
after giving pro forma effect to the incurrence of the Indebtedness giving rise
to the need to make such calculation (including a pro forma application of the
use of proceeds therefrom) on such date, to


 


(2)           the Consolidated Cash Flow of the Issuer for the
most recent four full fiscal quarters for which internal financial statements
are available immediately prior to such date of determination.


 


For purposes of this definition:


 


(a)           Consolidated Cash Flow shall
be calculated on a pro forma basis after giving effect to (A) the
incurrence of the Indebtedness of the Issuer and its Restricted Subsidiaries
(and the application of the proceeds therefrom) giving rise to the need to make
such calculation and any incurrence (and the application of the proceeds
therefrom) or repayment of other Indebtedness on the date of determination, and
(B) any acquisition or disposition (including, without limitation, any
acquisition giving rise to the need to make such calculation as a result of the
Issuer or one of its Restricted Subsidiaries (including any Person that becomes
a Restricted Subsidiary as a result of such acquisition) incurring, assuming or
otherwise becoming liable for Indebtedness) at any time on or subsequent to the
first day of the applicable four-quarter period specified in clause (2) of
the preceding paragraph (1) and on or prior to the date of determination,
as if such acquisition or disposition (including the incurrence or assumption
of any such Indebtedness and also including any Consolidated Cash Flow
associated with such acquisition or disposition) occurred on the first day of
such four-quarter period; and


 


(b)           pro forma calculations shall
be made in good faith by a responsible financial or accounting officer of the
Issuer and may give effect to any
operating improvements and cost reductions that have occurred or are reasonably
expected to occur in the good faith judgment of such responsible financial or
accounting officer of the Issuer (regardless of whether those operating improvements
or cost reductions could then be reflected in pro forma financial statements
prepared in accordance with Regulation S-X under the Securities Act or any
other regulation or policy of the Commission related thereto).


 


7

















 


“Consolidated Net Income” means, with respect
to any specified Person for any period, the aggregate of the Net Income of such
Person and its Subsidiaries on a consolidated basis for such period (taken as a
single accounting period), determined in conformity with GAAP; provided that there shall be excluded from the calculation
thereof (without duplication):


 


(1)           the income (or loss) of any Person (other than
Subsidiaries of the specified Person) in which any other Person (other than the
specified Person or any of its Subsidiaries) has a joint interest, except to
the extent of the amount of dividends or other distributions actually paid to
the specified Person or any of its Subsidiaries by such Person during such
period,


 


(2)           except for determinations expressly required to be
made after giving pro forma effect to the acquisition of any Person, the income
(or loss) of any Person accrued prior to the date it becomes a Subsidiary of
the specified Person or is merged into or consolidated with the specified
Person or any of its Subsidiaries or that Person’s assets are acquired by the
specified Person or any of its Subsidiaries and


 


(3)           the income of any Subsidiary of the specified Person
to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary.


 


“Continuing Directors” means, as of any date
of determination, any member of the Board of Directors of the Issuer who:


 


(1)           was a member of such Board of Directors on the
Original Issue Date; or


 


(2)           was nominated for election or elected to such Board
of Directors with the approval of a majority of the Continuing Directors who
were members of such Board of Directors at the time of such nomination or
election.


 


“Corporate Trust Office of the Trustee” shall
be at the address of the Trustee specified in Section 12.02 or such other
address as to which the Trustee may give notice to the Issuer.


 


“Credit Agreement” means that certain Credit
Agreement, dated as of March 31, 2008 by and among the Issuer, the
subsidiaries of the Issuer named therein, Spinco, Lehman Commercial Paper Inc.,
as administrative agent and Bank of America, N.A., as syndication agent, Banc
of America Securities LLC, Lehman Brothers Inc. and Morgan Stanley Senior Funding, Inc.,
as joint bookrunners, the other lenders named therein (as amended by that
certain Amendment, Waiver, Resignation and Appointment Agreement, dated as of January 21,
2009, by and among the Issuer, the other lenders named therein, Lehman
Commercial Paper Inc., as resigning administrative agent, collateral agent and
swingline lender and Bank of America, N.A., as syndication agent and successor
administrative agent, collateral agent and swingline lender), including any
related notes, Guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended, restated,
modified, renewed, refunded, replaced or refinanced from time to time
(including increases in the amounts available for borrowing thereunder),
regardless of whether such amendment, restatement, modification, renewal, refunding,
replacement or refinancing is with the same financial institutions, investors
or otherwise.


 


“Credit Facilities” means one or more debt
facilities (including, without limitation, the Credit Agreement and indentures
or debt securities) or commercial paper facilities, in each case with banks or
other institutional lenders providing for revolving credit loans, term debt,
receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow 


 


8

















 


from such lenders against
such receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to
time, including any refunding, replacement or refinancing thereof through the
issuance of debt securities.


 


“Custodian”
means the Trustee, as custodian with respect to the Notes in global form, or
any successor entity thereto.


 


“Default” means
any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.


 


“Definitive Note” means a certificated Note
registered in the name of the Holder thereof and issued in accordance with Section 2.07,
substantially in the form of Exhibit A, except that such Note shall
not bear the Global Note Legend and shall not have the “Schedule of Exchanges
of Interests in the Global Note” attached thereto.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.04 as the Depositary with
respect to the Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable
provision of this Indenture.


 


“Designated Noncash Consideration” means the
Fair Market Value of noncash consideration received by the Issuer or one of its
Restricted Subsidiaries in connection with an Asset Sale that is so designated
as Designated Noncash Consideration pursuant to an Officers’ Certificate, setting
forth the basis of such valuation, less the amount of Cash Equivalents received
in connection with a subsequent sale of such Designated Noncash Consideration.


 


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


 


“DTC” means The Depository Trust Company.


 


“Earn-Out Obligation” means any contingent
consideration based on future operating performance of the acquired entity or
assets or other purchase price adjustment or indemnification obligation,
payable following the consummation of an acquisition based on criteria set
forth in the documentation governing or relating to such acquisition.


 


9
















 


“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).


 


“Euroclear”
means Euroclear Bank S.A./N.V., as operator of the Euroclear system, and any
successor thereto.


 


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


 


“Exchange Offer” means the Issuer’s offer to
exchange all validly tendered and accepted Existing Notes for the Notes
pursuant to the terms and conditions set forth in the Offering Memorandum.


 


“Existing Indebtedness”
means (i) the outstanding aggregate principal amount of Existing Notes and
(ii) the Indebtedness of the Issuer and its Restricted Subsidiaries in existence
as of the Original Issue Date  (other
than Indebtedness under the Credit Agreement), until such amounts are repaid.


 


“Existing Notes” means the 131/8% Senior Notes due 2018 issued by Spinco, and subsequently
assumed by the Issuer, which were issued pursuant to the Existing Notes Indenture.


 


“Existing Notes Indenture”
means the indenture, dated as of March 31, 2008, by and between Spinco and
the Trustee, as amended by the First Supplemental Indenture, dated as of March 31,
2008 and the Second Supplemental Indenture, dated as of July 17, 2009.


 


“Existing Notes Offering Memorandum” means
the Issuer’s offering memorandum, dated March 26, 2008, relating to the
Existing Notes.


 


“Fair Market Value” means the price that
would be paid in an arm’s-length transaction between an informed and willing
seller under no compulsion to sell and an informed and willing buyer under no
compulsion to buy, as determined in good faith by the Board of Directors of the
Issuer, whose determination, unless otherwise specified below, shall be conclusive
if evidenced by a Board Resolution. 
Notwithstanding the foregoing, (1) the Board of Directors’
determination of Fair Market Value must be evidenced by a Board Resolution
attached to an Officers’ Certificate delivered to the Trustee if the Fair
Market Value exceeds $25.0 million and (2) the Board of Directors’
determination of Fair Market Value must be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if the Fair Market Value exceeds $50.0 million.


 


“GAAP” means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, the opinions and
pronouncements of the Public Company Accounting Oversight Board and in the
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which were in effect on the
Original Issue Date.


 


“Global Note Legend” means the legend set
forth in Section 2.07(g)(ii), which is required to be placed on all Global
Notes issued under this Indenture.


 


“Global Notes” means, individually and
collectively, each of the Restricted Global Notes and the Unrestricted Global
Notes, substantially in the form of Exhibit A, issued in the name of the Depositary
or its nominee in accordance with Section 2.01 or Section 2.07.


 


10

















 


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


 


“Guarantee”
means, as to any Person, a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness of another Person.


 


“Guarantors” means any Subsidiary of the
Issuer that executes a Guarantee of the Notes in accordance with the provisions
of this Indenture; and their respective successors and assigns until released
from their obligations under their Guarantees of the Notes and this Indenture
in accordance with the terms of this Indenture.


 


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


 


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


 


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


 


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


 


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


 


“Incur” means,
with respect to any Indebtedness, to incur, create, issue, assume, Guarantee or
otherwise become directly or indirectly liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness (and “Incurrence” and “Incurred” shall have meanings correlative to
the foregoing); provided that (1) any Indebtedness
of a Person existing at the time such Person becomes a Restricted Subsidiary of
the Issuer shall be deemed to be Incurred by such Restricted Subsidiary at the
time it becomes a Restricted Subsidiary of the Issuer and (2) neither the
accrual of interest nor the accretion of original issue discount nor the
payment of interest in the form of additional Indebtedness with the same terms
and the payment of dividends on Disqualified Stock or Preferred Stock in the
form of additional shares of the same class of Disqualified Stock or Preferred
Stock (to the extent provided for when the Indebtedness or Disqualified Stock
or Preferred Stock on which such interest or dividend is paid was originally
issued) shall be considered an Incurrence of Indebtedness; provided
that in each case the amount thereof is for all other purposes included in the
Consolidated Interest Expense and Indebtedness of the Issuer or its Restricted
Subsidiary as accrued.


 


“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:


 


(1)           in respect of borrowed money;


 


(2)           evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof);


 


(3)           in respect of banker’s acceptances;


 


11

















 


(4)           in respect of Capital Lease Obligations and
Attributable Debt;


 


(5)           in respect of the balance deferred and unpaid of the
purchase price of any property or services; provided that
Indebtedness shall not include (A) any Earn-Out Obligation or obligation
in respect of purchase price adjustment, except to the extent that the
contingent consideration relating thereto is not paid within 15 Business Days
after the contingency relating thereto is resolved and (B) (i) deferred
payments, trade payables, accrued expenses and receipts of progress and advance
payments, in each case including any accrued interest thereon and (ii) amounts
owed by the Issuer or any of its Affiliates to Verizon or any of its Affiliates
under the Transition Services Agreement (which are not covered by clause (B)(i) above)
in an aggregate amount not to exceed $50.0 million (excluding interest accrued
thereon);


 


(6)           representing Hedging Obligations;


 


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


 


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


 


if and to the extent any of the preceding
items (other than letters of credit and other than clauses (4), (5), (6), (7) or
(8)) would appear as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP.  In
addition, the term “Indebtedness” includes (x) all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such
Indebtedness is assumed by the specified Person); provided
that the amount of such Indebtedness shall be the lesser of (A) the Fair
Market Value of such asset at such date of determination and (B) the
amount of such Indebtedness, and (y) to the extent not otherwise included,
the Guarantee by the specified Person of any Indebtedness of any other Person; provided  further that
any obligation of the Issuer or any Restricted Subsidiary in respect of minimum
guaranteed commissions, or other similar payments, to clients, minimum returns
to clients or stop loss limits in favor of clients or indemnification
obligations to clients, in each case pursuant to contracts to provide services
to clients entered into in the ordinary course of business, shall be deemed not
to constitute Indebtedness.  For purposes
hereof, the “maximum fixed repurchase price” of any Disqualified Stock or
Preferred Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Stock or Preferred Stock, as
applicable, as if such Disqualified Stock or Preferred Stock were repurchased
on any date on which Indebtedness shall be required to be determined pursuant
to this Indenture.


 


The amount of any Indebtedness outstanding as of any
date shall be the outstanding balance at such date of all unconditional
obligations as described above and, with respect to contingent obligations, the
maximum liability upon the occurrence of the contingency giving rise to the
obligation, and shall be:


 


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


 


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


 


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


 


12

















 


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


 


“Investments” means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the form of loans or other extensions of credit (including Guarantees),
advances, capital contributions (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others)           , purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.  Except as otherwise provided in this
Indenture, the amount of an Investment will be determined at the time the
Investment is made and without giving effect to subsequent changes in value.


 


If the Issuer or any of its Restricted Subsidiaries
sells or otherwise disposes of any Equity Interests of any direct or indirect
Restricted Subsidiary of the Issuer such that, after giving effect to any such
sale or disposition, such Person is no longer a Restricted Subsidiary of the
Issuer, the Issuer shall be deemed to have made an Investment on the date of
any such sale or disposition equal to the Fair Market Value of the Investment
in such Subsidiary not sold or disposed of. 
The acquisition by the Issuer or any of its Restricted Subsidiaries of a
Person that holds an Investment in a third Person shall be deemed to be an Investment
by the Issuer or such Restricted Subsidiary in such third Person in an amount
equal to the Fair Market Value of the Investment held by the acquired Person in
such third Person.


 


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


 


“Issuer” means FairPoint Communications, Inc.,
a Delaware corporation.


 


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


 


“Legended Regulation S Global Note” means a
Global Note in the form of Exhibit A bearing the Global Note Legend, the
Private Placement Legend and the Regulation S Global Note Legend and deposited
with or on behalf of, and registered in the name of, the Depositary or its
nominee.


 


“Lien” means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.


 


“Master Services Agreement”
means the Master Services Agreement, dated as of January 15, 2007, by and
between Capgemini, U.S. LLC and the Issuer, as amended, as in effect on the
Original Issue Date (and any amendment, modification, or supplement
thereto or replacement thereof, as long as such agreement or arrangement, as so
amended, modified, supplemented or replaced, taken as a whole, is, as determined
in good faith by the Issuer’s Board of Directors, not materially more
disadvantageous to the Holders than the original agreement or arrangement in
existence on the Original Issue Date).


 


“Merger” means the transactions contemplated
by that certain Agreement and Plan of Merger, dated as of January 15,
2007, by and among Verizon, Spinco and the Issuer, as amended (including, without
limitation, the merger of Spinco with and into the Issuer, with the Issuer
continuing as the surviving corporation).


 


13

















 


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


 


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


 


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


 


“Net Proceeds” means the aggregate cash
proceeds, including payments in respect of deferred payment obligations (to the
extent corresponding to the principal, but not the interest component, thereof)
received by the Issuer or any of its Restricted Subsidiaries in respect of any
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale),
net of (1) the direct costs relating to such Asset Sale and the sale or
other disposition of any such non-cash consideration, including, without
limitation, legal, accounting, investment banking and brokerage fees, and sales
commissions, and any relocation expenses Incurred as a result thereof, (2) taxes
paid or payable as a result thereof, in each case, after taking into account
any available tax credits or deductions and any tax sharing arrangements, (3) amounts
required to be applied to the repayment of Indebtedness or other liabilities
secured by a Lien on the asset or assets that were the subject of such Asset
Sale or required to be paid as a result of such sale (other than the Credit
Agreement), (4) any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP, (5) in the case
of any Asset Sale by a Restricted Subsidiary of the Issuer, payments to holders
of Equity Interests in such Restricted Subsidiary in such capacity (other than
such Equity Interests held by the Issuer or any Restricted Subsidiary thereof)
to the extent that such payment is required to permit the distribution of such
proceeds in respect of the Equity Interests in such Restricted Subsidiary held
by the Issuer or any Restricted Subsidiary thereof and (6) appropriate
amounts to be provided by the Issuer or its Restricted Subsidiaries as a
reserve against liabilities associated with such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as determined in accordance
with GAAP; provided that (a) excess amounts
set aside for payment of taxes pursuant to clause (2) above remaining
after such taxes have been paid in full or the statute of limitations therefor
has expired and (b) amounts initially held in reserve pursuant to clause (6) no
longer so held, shall, in the case of each of subclause (a) and (b), at
that time become Net Proceeds.


 


“Non-Recourse Debt”
means Indebtedness:


 


(1)           as to which neither the Issuer nor any of its
Restricted Subsidiaries (a) provides credit support of any kind (including
any undertaking, agreement or instrument that would constitute Indebtedness)
other than a pledge of the Equity Interests of the Unrestricted Subsidiary that
is the obligor thereunder, (b) is directly or indirectly liable as a
guarantor or otherwise, or (c)       constitutes the lender;


 


(2)           no default with respect to which (including any
rights that the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both any
holder of any other Indebtedness (other than the Notes) of the Issuer or any of
its Restricted Subsidiaries to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its stated
maturity; and


 


14

















 


(3)           as to which either (a) the explicit terms
provide that there is no recourse against any of the assets of the Issuer or
any Restricted Subsidiary thereof or (b) the lenders have been notified in
writing that they shall not have any recourse to the stock or assets of the
Issuer or any of its Restricted Subsidiaries, in each case other than recourse
against the Equity Interests of the Unrestricted Subsidiary that is the obligor
thereunder.


 


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


 


“Notes” means the 131/8% Senior Notes due 2018 of the Issuer issued on the
date hereof (including any Capitalized Interest).


 


“Obligations” means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.


 


“Offering Memorandum” means the confidential
exchange offer memorandum and consent solicitation statement, dated June 24,
2009, as supplemented on July 13, 2009, relating to the Exchange Offer.


 


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


 


“Officers’ Certificate” means a certificate
signed on behalf of the Issuer by at least two Officers of the Issuer, one of
whom must be the principal executive officer, the principal financial officer
or the principal accounting officer of the Issuer that meets the requirements
of this Indenture.


 


“Opinion of Counsel”
means an opinion from legal counsel (who may be counsel to or an employee of
the Issuer) that meets the requirements of this Indenture.


 


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


 


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


 


“Permitted Business” means any business
conducted or proposed to be conducted (as described in the Existing Notes
Offering Memorandum) by the Issuer and its Restricted Subsidiaries on the
Original Issue Date and other businesses reasonably related, ancillary or
incidental, thereto or a reasonable extension or expansion thereof.


 


“Permitted Investments” means:


 


(1)           any Investment in the Issuer or in a Restricted
Subsidiary of the Issuer;


 


(2)           any Investment in Cash Equivalents;


 


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


 


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


 


15

















 


(b)           such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Issuer or a Restricted
Subsidiary of the Issuer;


 


(4)           any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10;


 


(5)           Hedging Obligations permitted under Section 4.09(b)(viii) 
that are Incurred for the purpose of fixing, hedging or swapping interest rate,
commodity price or foreign currency exchange rate risk (or to reverse or amend
any such agreements previously made for such purposes), and not for speculative
purposes;


 


(6)           any Investment acquired by the Issuer or any of its
Restricted Subsidiaries (a) in exchange for any other Investment or
accounts receivable held by the Issuer or any such Restricted Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts receivable
or (b) as a result of a foreclosure by the Issuer or any of its Restricted
Subsidiaries with respect to any secured Investment or other transfer of title
with respect to any secured Investment in default;


 


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


 


(8)           Investments consisting of purchases and acquisitions
of inventory, supplies, materials and equipment or purchases of contract rights
or licenses or leases of intellectual property, in each case in the ordinary
course of business;


 


(9)           advances to employees not in excess of $5.0 million
outstanding at any one time in the aggregate;


 


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


 


(11)         Investments consisting of the licensing or
contribution of intellectual property pursuant to joint marketing arrangements
with other Persons;


 


(12)         Investments represented by guarantees that are
otherwise permitted under this Indenture;


 


(13)         Investments resulting from the creation of Liens on
the assets of the Issuer or any of the Restricted Subsidiaries that are
otherwise permitted under this Indenture; and


 


(14)         other Investments in any Person (provided that any
such Person is either (i) not an Affiliate of the Issuer or (ii) is
an Affiliate of the Issuer (A) solely because the Issuer, directly or
indirectly, owns Equity Interests in, or controls, such Person or (B) engaged
in bona fide business operations and is an Affiliate solely because it is under
common control with the Issuer) having an aggregate Fair Market Value (measured
on the date each such Investment was made and without giving effect to
subsequent changes in value), when taken together with all other Investments 


 


16

















 


made pursuant to this clause
(14) since the Original Issue Date, not to exceed the greater of (x) 3.0%
of Tangible Assets at the time of such Investment and (y) $75.0 million.


 


“Permitted Junior Capital” means and includes
(i) any Permitted Unsecured Debt and (ii) any Preferred Stock of the
Issuer.


 


“Permitted Liens” means:


 


(1)           Liens securing Indebtedness permitted to be Incurred
and outstanding at such time under this Indenture in an amount not to exceed
the greater of (x) the amount permitted to be Incurred and outstanding
pursuant to Section 4.09(b)(i), (iv) and (xiv) and (y) 3.0% of
Tangible Assets (on a pro forma basis) at the time of such Incurrence;


 


(2)           Liens in favor of the Issuer or any Restricted
Subsidiary thereof;


 


(3)           Liens on property of a Person existing at the time
such Person is merged with or into or consolidated with the Issuer or any
Restricted Subsidiary thereof; provided that
such Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Issuer or the Restricted Subsidiary;


 


(4)           Liens on property existing at the time of
acquisition thereof by the Issuer or any Restricted Subsidiary thereof; provided that such Liens were in existence prior to the
contemplation of such acquisition and do not extend to any property other than
the property so acquired by the Issuer or the Restricted Subsidiary;


 


(5)           Liens securing the Notes and any Guarantee of the
Notes;


 


(6)           Liens existing on the Original Issue Date (excluding
any such Liens securing Indebtedness under the Credit Agreement);


 


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


 


(8)           Liens on property or assets used to defease or to
satisfy and discharge Indebtedness; provided that (a) the
Incurrence of such Indebtedness was not prohibited by this Indenture and (b) such
defeasance or satisfaction and discharge is not prohibited by this Indenture;


 


(9)           Liens securing obligations that do not exceed $10.0
million at any one time outstanding;


 


(10)         Liens on cash or Cash Equivalents securing Hedging
Obligations of the Issuer or any of its Restricted Subsidiaries (a) that
are Incurred for the purpose of fixing, hedging or swapping interest rate,
commodity price or foreign currency exchange rate risk (or to reverse or amend
any such agreements previously made for such purposes), and not for speculative
purposes, or (b) securing letters of credit that support such Hedging
Obligations;


 


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


 


17

















 


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


 


(13)         survey exceptions, encumbrances, easements or
reservations of, or rights of other for, rights of way, zoning or other
restrictions as to the use of properties, and defects in title which, in the
case of any of the foregoing, were not Incurred or created to secure the
payment of Indebtedness, and which in the aggregate do not materially adversely
affect the value of such properties or materially impair the use for the
purposes of which such properties are held by the Issuer or any of its
Restricted Subsidiaries;


 


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


 


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


 


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


 


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


 


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


 


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


 


(20)         Liens of franchisors in the ordinary course of
business not securing Indebtedness.


 


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


 


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


 


(2)           such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the 


 


18

















 


Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;


 


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


 


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


 


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


 


“Permitted Unsecured
Debt” means Indebtedness of the Issuer that (a) is not secured by any
assets of the Issuer or any other Subsidiary of the Issuer, (b) is not
guaranteed by a Subsidiary of the Issuer and (c) is subordinated in right
of payment and priority to the Notes, or any Guarantee of the Notes, on
customary terms and conditions.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Regulation S Global Notes Legend” means the
legend set forth in Section 2.07(h), which is required to be placed on all
Legended Regulation S Global Notes.


 


“Replacement Assets” means (1) non-current
assets (including any such assets acquired by capital expenditures) that shall
be used or useful in a Permitted Business or (2) substantially all the
assets of a Permitted Business or Capital Stock of any Person engaged in a
Permitted Business that shall become on the date of acquisition of such Capital
Stock of a Restricted Subsidiary of the Issuer.


 


19
















 


“Responsible Officer,”
when used with respect to the Trustee, means any officer within the corporate
trust department of the Trustee (or any successor group of the Trustee) or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of such person’s knowledge of and familiarity with the
particular subject, and who shall have direct responsibility for the
administration of this Indenture.


 


“Restricted Definitive Note” means a
Definitive Note that is a Restricted Note.


 


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


 


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


 


“Restricted Note” has the meaning set forth
in Rule 144(a)(3) under the Securities Act for the term “restricted
securities”; provided, however,
that the Trustee shall be entitled to request and conclusively rely upon an
Opinion of Counsel with respect to whether any Note is a Restricted Note.  Restricted Notes are required to bear the
Private Placement Legend.


 


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


 


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


 


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


 


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


 


“Rule 501(a)” means Rule 501(a) of
Regulation D promulgated under the Securities Act.


 


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


 


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


 


“Sale and Leaseback Transaction” means, with
respect to any Person, any transaction involving any of the assets or
properties of such Person whether now owned or hereafter acquired, whereby such
Person sells or otherwise transfers such assets or properties and then or
thereafter leases such assets or properties or any part thereof or any other
assets or properties which such Person intends to use for substantially the
same purpose or purposes as the assets or properties sold or transferred.


 


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


 


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


 


“Spinco” means Northern New England Spinco
Inc.


 


“Spin-Off” means (i) the contribution by
the Verizon Group to Spinco and entities that will become subsidiaries of
Spinco of (x) specified assets and liabilities associated with the local exchange
business of Verizon New England Inc. in Maine, New Hampshire and Vermont and (y) the
customers of the Verizon Group’s related long distance and Internet service
provider businesses in those states in exchange for the issuance or transfer to
the Verizon Group of common stock of Spinco, the 


 


20

















 


Notes and the making of the
special cash payment made by Spinco to the Verizon Group on the Original Issue
Date and (ii) the distribution by Verizon of Spinco’s common stock to a
third-party distribution agent to be held collectively for the benefit of
holders of Verizon common stock, in each case pursuant to the Distribution
Agreement, dated as of January 15, 2007, between Spinco and Verizon, as
amended.


 


“Stated Maturity” means, with respect to any
installment of interest or principal on any series of Indebtedness, the date on
which such payment of interest or principal was scheduled to be paid in the
original documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.


 


“Subsidiary”
means, with respect to any specified Person:


 


(1)           any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and


 


(2)           any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or one or
more Subsidiaries of such Person (or any combination thereof).


 


“Tangible Assets” means the total
consolidated assets of the Issuer and its Restricted Subsidiaries (less
depreciation, amortization, applicable reserves and other properly deductible
items) after deducting therefrom all goodwill, trade names, trademarks,
patents, purchased technology, unamortized debt discount and other like
intangible assets, as shown on the most recent balance sheet of the Issuer
prepared in conformity with GAAP.


 


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


 


“Transactions” means,
collectively, any or all of the following: (i) the Spin-Off, (ii) the
Merger, (iii) the entry into the Existing Notes Indenture relating to the
Existing Notes, and the offer and issuance of the Existing Notes, (iv) the
entry into the Credit Agreement and Incurrence of Indebtedness thereunder by
one or more of the Issuer and its Subsidiaries and (v) all other
transactions relating to any of the foregoing (including payment of fees and expenses
related to any of the foregoing).


 


“Transition Services Agreement” means the
Transition Services Agreement, dated as of January 15, 2007, by and among
Verizon Information Technologies LLC, Northern New England Telephone Operations
Inc. (subsequently renamed Northern New England Telephone Operations LLC), Enhanced
Communications of Northern New England Inc. and the Issuer, as amended, as in
effect on the Original Issue Date (and any
amendment, modification, or supplement thereto or replacement thereof, as long
as such agreement or arrangement, as so amended, modified, supplemented or
replaced, taken as a whole, is, as determined in good faith by the Issuer’s
Board of Directors, not materially more disadvantageous to the Holders than the
original agreement or arrangement in existence on the Original Issue Date).


 


“Trustee” means
U.S. Bank National Association until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.


 


21

















 


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


 


“Unrestricted Definitive Note” means one or
more Definitive Notes that is an Unrestricted Note.


 


“Unrestricted Global Note” means a Global
Note that is an Unrestricted Note.


 


“Unrestricted Notes” means one or more Notes
that do not and are not required to bear the Private Placement Legend
including, without limitation, any Notes from which the Private Placement
Legend has been removed in accordance with Section 2.07(g)(i) and,
with respect to Unrestricted Global Notes, Notes in which a Holder acquires an
interest pursuant to Section 2.07(k).


 


“Unrestricted Subsidiary” means any
Subsidiary of the Issuer that is designated by the Board of Directors of the
Issuer as an Unrestricted Subsidiary pursuant to a Board Resolution in compliance
with Section 4.16 and any Subsidiary of such Subsidiary.


 


“Verizon” means
Verizon Communications Inc.


 


“Verizon Group”
means, collectively, Verizon and its Subsidiaries (other than Cellco
Partnership doing business as Verizon Wireless).


 


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


 


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


 


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


 


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


 


Section 1.02.                             Other Definitions.


 


	
   

  	
   

  	
  Defined in

  
	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.11

  
	
  “Asset
  Sale Offer”

  	
   

  	
  4.10

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “Basket
  Period”

  	
   

  	
  4.07

  
	
  “Capitalized
  Interest”

  	
   

  	
  2.01

  
	
  “Change
  Of Control Offer”

  	
   

  	
  4.14

  
	
  “Change
  Of Control Payment”

  	
   

  	
  4.14

  
	
  “Change
  Of Control Payment Date”

  	
   

  	
  4.14

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “Event
  Of Default”

  	
   

  	
  6.01

  



 


22

















 


	
   

  	
   

  	
  Defined in

  
	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.10

  
	
  “Excess
  Proceeds Trigger Date”

  	
   

  	
  4.10

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “Offer
  Amount”

  	
   

  	
  3.08

  
	
  “Offer
  Period”

  	
   

  	
  3.08

  
	
  “Offshore
  Transaction”

  	
   

  	
  2.07

  
	
  “Paying
  Agent”

  	
   

  	
  2.04

  
	
  “Payment
  Default”

  	
   

  	
  6.01

  
	
  “Permitted
  Debt”

  	
   

  	
  4.09

  
	
  “Purchase
  Date”

  	
   

  	
  3.08

  
	
  “Registrar”

  	
   

  	
  2.04

  
	
  “Related
  Proceedings”

  	
   

  	
  12.09

  
	
  “Repurchase
  Offer”

  	
   

  	
  3.08

  
	
  “Restricted
  Payments”

  	
   

  	
  4.07

  
	
  “Specified
  Courts”

  	
   

  	
  12.09

  



 


Section 1.03.                             Incorporation by Reference
of Trust Indenture Act.


 


Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a part of this
Indenture.


 


The following TIA terms used in this Indenture have
the following meanings:


 


“Indenture Securities” means the Notes and
any Guarantees;


 


“Indenture Security Holder” means a Holder of
a Note;


 


“Indenture To Be Qualified” means this
Indenture;


 


“Indenture Trustee” or “Institutional
Trustee” means the Trustee; and


 


“Obligor”
on the Notes means the Issuer, the Guarantors, if any, and any successor obligor
upon the Notes or any Guarantees.


 


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


 


Section 1.04.                             Rules of Construction


 


Unless the context otherwise requires:


 


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


 


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


 


(c)           “or” is not exclusive;


 


23

















 


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


 


(e)           “herein”, “hereof” and other
word of similar import refer to this Indenture as a whole and not to any
particular Section, Article or other subdivision;


 


(f)            all references to Sections
or Articles or Exhibits refer to Sections or Articles or Exhibits of or to this
Indenture unless otherwise indicated; and


 


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


 


ARTICLE TWO

THE NOTES


 


Section 2.01.                             Form and Dating.


 


(a)      General.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A.  The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.  Each Note shall be dated the date of its
authentication.  The Notes shall be
issued in registered form without interest coupons in minimum denominations of
$1.00 and integral multiples of $1.00 in excess thereof.


 


The terms and provisions contained in the Notes
shall constitute, and are hereby expressly made, a part of this Indenture, and
the Issuer, the Guarantors, if any, and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.  However, to the extent
any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.


 


Interest payable on the Notes shall be payable in
immediately available funds in accordance with the terms of this Indenture and
the Notes; provided, however
that the interest due and payable on the Notes on October 1, 2009 will be
payable, at the Issuer’s option, in immediately available funds, by capitalizing
such accrued and unpaid interest to the principal amount of the Notes by adding
an amount equal to such accrued and unpaid interest being capitalized to the
principal amount of each Note then outstanding (interest so capitalized, “Capitalized
Interest”), or a combination of immediately available funds and Capitalized
Interest.  Following an increase in the
principal amount of the Notes as a result of Capitalized Interest, the Notes
will bear interest on such increased principal amount from and after the date
of such interest payment date. The Capitalized Interest shall result in
increases in the principal amount of the Notes by an amount equal to the interest
payable rounded up to the next whole $1.00.


 


(b)          Global Notes.  Notes issued to QIBs and Notes issued to
Accredited Investors shall be issued initially in the form of one or more
permanent Restricted Global Notes.  Notes
in global form shall be substantially in the form of Exhibit A (and
shall include the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto).  Notes initially issued to or transferred to
affiliates (as defined in Rule 144) of the Issuer shall only be issued in
definitive form and shall be substantially in the form of Exhibit A
(but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto).  Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
represents the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global


 


24

















 


Note to reflect the amount
of any increase or decrease in the aggregate principal amount of outstanding
Notes represented thereby shall be made by the Trustee or, if the Custodian and
the Trustee are not the same Person, by the Custodian at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.07 hereof. 
For the avoidance of doubt, unless and until the Private Placement
Legend has been removed from the Global Notes in accordance with this
Indenture, affiliates of the Issuer may only hold an interest in the Notes in
the form of Definitive Notes and are prohibited from taking a beneficial
interest in one or more Global Notes.


 


(c)           Regulation S Global Notes.  Notes offered and sold in reliance on
Regulation S, shall be issued initially in the form of the Legended Regulation
S Global Note, which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Trustee, as custodian for DTC in New York,
New York, and registered in the name of the Depositary or the nominee of the
Depositary for the accounts of designated agents holding on behalf of Euroclear
or Clearstream, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided.  Following the
termination of the Restricted Period, beneficial interests in the Legended
Regulation S Global Note may be exchanged for beneficial interests in
Unlegended Regulation S Global Notes pursuant to Section 2.07 and the
Applicable Procedures.  Simultaneously
with the authentication of Unlegended Regulation S Global Notes, the Trustee
shall cancel the Legended Regulation S Global Note.  The aggregate principal amount of the Regulation
S Global Notes may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary or its nominee, as the
case may be, in connection with transfers of interest as hereinafter provided.


 


(d)           Euroclear and Clearstream Procedures Applicable.  The provisions of the  “Operating Procedures of the Euroclear System”
and “Terms and Conditions Governing Use of Euroclear” and the “General Terms
and Conditions of Clearstream Banking” and 
“Customer Handbook” of Clearstream shall be applicable to transfers of
beneficial interests in the Regulation S Global Notes that are held by
Participants through Euroclear or Clearstream.


 


Section 2.02.                             Execution and Authentication.


 


At least one Officer of the Issuer shall sign the
Notes for the Issuer by manual or facsimile signature.


 


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


 


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


 


At any time and from time to time after the
execution of this Indenture, the Trustee shall, upon receipt of a written order
of the Issuer signed by an Officer of the Issuer (an “Authentication Order”),
authenticate Notes for original issue in an aggregate principal amount
specified in such Authentication Order. 
The Authentication Order shall specify the amount of Notes to be
authenticated, the date on which the Notes are to be authenticated, the number
of separate Note certificates, the registered Holder of each of the Notes and
delivery instructions.


 


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


 


25

















 


If the Issuer elects to pay all or a portion of the October 1,
2009 interest payment on the Notes by paying Capitalized Interest, then the
Issuer shall deliver to the Trustee (i) no later than the record date for
the October 1, 2009 interest payment, a written notice setting forth the
extent to which such interest payment will be made, in whole or in part, in the
form of Capitalized Interest and (ii) no later than one business day prior
to the October 1, 2009 interest payment date, an order to adjust the Notes
by the applicable amount of Capitalized Interest.


 


Section 2.03.                             Methods of Receiving
Payments on the Notes.


 


If a Holder has given wire transfer instructions to
the Issuer, the Issuer shall pay all principal (including any Capitalized
Interest), interest and premium, if any, on that Holder’s Notes in accordance
with those instructions; provided that
Capitalized Interest shall be considered paid on the date due if the principal
of each Note then outstanding is increased in an amount equal to the applicable
amount of the Capitalized Interest.  All
other payments on Notes shall be made at the office or agency of the Paying
Agent and Registrar within the City and State of New York unless the Issuer
elects to make interest payments by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that
Capitalized Interest shall be considered paid on the date due if the principal
of each Note then outstanding is increased in an amount equal to the applicable
amount of the Capitalized Interest.


 


Section 2.04.                             Registrar and Paying Agent.


 


(a)      The Issuer shall maintain a
registrar with an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”)
and a paying agent with an office or agency where Notes may be presented for
payment (“Paying Agent”).  The
Registrar shall keep a register of the Notes and of their transfer and
exchange.  The Issuer may appoint one or
more co-registrars and one or more additional paying agents.  The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying
agent.  The Issuer may change any Paying
Agent or Registrar without prior notice to any Holder.  The Issuer shall promptly notify the Trustee
in writing of the name and address of any Agent not a party to this
Indenture.  If the Issuer fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such.  The Issuer or any of
its Subsidiaries may act as Paying Agent or Registrar.


 


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


 


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


 


Section 2.05.                             Paying Agent to Hold Money
in Trust.


 


The Issuer shall require each Paying Agent other
than the Trustee to agree in writing that the Paying Agent shall hold in trust
for the benefit of the Holders or the Trustee all money held by the Paying
Agent for the payment of principal, which shall include Capitalized Interest,
if any, premium, if any, or interest on the Notes, and shall promptly notify
the Trustee of any Default by the Issuer 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 Issuer 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 Issuer or one of its Subsidiaries) shall have no
further liability for the money.  If the
Issuer or one of its Subsidiaries acts as Paying Agent, it shall segregate and
hold in a separate trust fund for the benefit of the Holders all money held by
it as Paying Agent.  Upon any bankruptcy or
reorganization proceedings relating to the Issuer, the Trustee shall serve as
Paying Agent for the Notes.


 


26

















 


Section 2.06.                             Holder Lists.


 


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


 


Section 2.07.                             Transfer and Exchange.


 


(a)      Transfer and
Exchange of Global Notes.  A
Global Note may not be transferred as a whole except by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the Depositary or
to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.  All Global Notes shall be exchanged by the
Issuer for Definitive Notes if: (i) DTC (A) notifies the Issuer that
it is unwilling or unable to continue as Depositary for the Global Notes or (B) has
ceased to be a clearing agency registered under the Exchange Act, and in each
case the Issuer fails to appoint a successor Depositary; (ii) the Issuer,
at its option, notifies the Trustee in writing that it elects to cause the
issuance of Definitive Notes; provided that in no event shall the Legended
Regulation S Global Note be exchanged by the Issuer for Definitive Notes other
than in accordance with Section 2.07(c)(ii); or (iii) there shall
have occurred and be continuing a Default or Event of Default with respect to
the Notes.  Upon the occurrence of any of
the preceding events in (i), (ii) or (iii) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee in
writing.  Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.08 and
2.11 hereof.  Every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.07 or Section 2.08 or 2.11
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note.  A Global Note may not be
exchanged for another Note other than as provided in this Section 2.07(a);
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.07(b), (c) or (f) hereof.


 


(b)      Transfer and
Exchange of Beneficial Interests in the Global Notes.  The transfer and exchange of beneficial interests
in the Global Notes shall be effected through the Depositary, in accordance
with the provisions of this Indenture and the Applicable Procedures.  Beneficial interests in the Restricted Global
Notes shall be subject to restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one
or more of the other following subparagraphs, as applicable:


 


(i)   Transfer of Beneficial
Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial
interests in the Legended Regulation S Global Note may not be made to a Person
or for the account or benefit of a Person. 
Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note.  No written
orders or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.07(b)(i).


 


(ii)  All Other Transfers and
Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and
exchanges of beneficial interests that are not subject to 


 


27

















 


Section 2.07(b)(i) above,
the transferor of such beneficial interest must deliver to the Registrar either
(A) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant account
to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (1) above;
provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial
interests in the Legended Regulation S Global Note other than in accordance
with Section 2.07(c)(ii).  Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount at maturity of the relevant Global Notes pursuant to Section 2.07(i).


 


(iii) Transfer of
Beneficial Interests to Another Restricted Global Note.  A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.07(b)(ii) above and the
Registrar receives the following:


 


(A)          if the transferee shall take
delivery in the form of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B,
including the certifications in item (1) thereof; and


 


(B)           if the transferee shall take
delivery in the form of a beneficial interest in a Legended Regulation S Global
Note, then the transferor must deliver a certificate in the form of Exhibit B,
including the certifications in item (2) thereof.


 


(iv)                Transfer and Exchange of
Beneficial Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note.  A
beneficial interest in any Restricted Global Note may be exchanged by any Holder
thereof for a beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note if the exchange or transfer complies with the
requirements of Section 2.07(b)(ii) above and:


 


(A)          [INTENTIONALLY OMITTED];


 


(B)           [INTENTIONALLY OMITTED];


 


(C)           [INTENTIONALLY OMITTED];


 


(D)          the Registrar receives the
following:


 


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


 


28

















 


(2)           if the holder of such
beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B, including the certifications in
item (4) thereof;


 


and, in each such case set forth in this subparagraph (D), if the
Registrar or the Issuer so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the Registrar and the
Issuer to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required or advisable in order to
maintain compliance with the Securities Act.


 


If any such transfer is effected pursuant to
subparagraph (D) above at a time when an Unrestricted Global Note has not
yet been issued, the Issuer shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount of beneficial interests
transferred pursuant to subparagraph (D) above.


 


Beneficial interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take delivery thereof in
the form of, a beneficial interest in a Restricted Global Note.


 


(c)      Transfer or
Exchange of Beneficial Interests for Definitive Notes.


 


(i)       Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes.  If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:


 


(A)          if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the form of Exhibit C,
including the certifications in item (2) (a) thereof;


 


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


 


(C)           [INTENTIONALLY OMITTED];


 


(D)          [INTENTIONALLY OMITTED];


 


(E)           if such beneficial interest is being transferred to
an Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than that listed in subparagraph (B) above,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable; or


 


29
















 


(F)          if such beneficial interest
is being transferred to the Issuer or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B, including the certifications in
item (3)(a) thereof,


 


the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.07(i) hereof, and the Issuer shall execute and
the Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section 2.07(c) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant.  The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered.  Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.07(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.


 


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


 


(iii)      Beneficial Interests in
Restricted Global Notes to Unrestricted Definitive Notes.  A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note only if:


 


(A)      [INTENTIONALLY OMITTED];


 


(B)       [INTENTIONALLY OMITTED];


 


(C)       [INTENTIONALLY OMITTED];


 


(D)       the Registrar receives the
following:


 


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


 


(2)           if the holder of such beneficial
interest in a Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form of a
Definitive Note that does not bear the Private Placement Legend, a certificate
from such Holder in the form of Exhibit B, including the
certifications in item (4) thereof;


 


and,
in each such case set forth in this subparagraph (D), if the Registrar or the
Issuer so request or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar and the Issuer to the
effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required or advisable in order to maintain compliance with
the Securities Act.


 


30

















 


(iv)                Beneficial Interests in
Unrestricted Global Notes to Unrestricted Definitive Notes.  If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 2.07(b)(ii), the Trustee shall cause
the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.07(i), and the Issuer shall execute and
the Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.07(c)(iv) shall be
registered in such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant.  The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so
registered.  Any Definitive Note issued
in exchange for a beneficial interest pursuant to this Section 2.07(c)(iv) shall
not bear the Private Placement Legend.


 


(d)      Transfer and
Exchange of Definitive Notes for Beneficial Interests.


 


(i)       Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes.  If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following documentation:


 


(A)          if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note, a certificate from such Holder in the form of Exhibit C,
including the certifications in item (2)(b) thereof;


 


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


 


(C)           if such Restricted Definitive Note is being
transferred to a Non-Person in an “Offshore Transaction” in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit B,
including the certifications in item (2) thereof; or


 


(D)          if such Restricted Definitive Note is being
transferred to the Issuer or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B, including the certifications in item
(3)(a) thereof,


 


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


 


(ii)      Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note only if:


 


(A)          [INTENTIONALLY OMITTED];


 


(B)           [INTENTIONALLY OMITTED];


 


31

















 


(C)           [INTENTIONALLY OMITTED];


 


(D)           the Registrar receives the
following:


 


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


 


(2)           if the Holder of such
Restricted Definitive Note proposes to transfer such Note to a Person who shall
take delivery thereof in the form of a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit B,
including the certifications in item (4) thereof;


 


and, in each such case set
forth in this subparagraph (D), if the Registrar or the Issuer so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar and the Issuer to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required or advisable in order to maintain compliance with the
Securities Act.


 


Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.07(d)(ii), the Trustee shall cancel the
Definitive Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.


 


(iii) Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Unrestricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note at
any time.  Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.


 


If any such exchange or transfer from a Definitive
Note to a beneficial interest is effected pursuant to subparagraphs (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been
issued, the Issuer shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.


 


(e)      Transfer and
Exchange of Definitive Notes for Definitive Notes.  Upon request by a Holder of Definitive Notes
and such Holder’s compliance with the provisions of this Section 2.07(e),
the Registrar shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. 
In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.07(e).


 


(i)        Restricted
Definitive Notes to Restricted Definitive Notes.  Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof
in the form of a Restricted Definitive Note if the Registrar receives the following:


 


32

















 


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


 


(B)           [INTENTIONALLY OMITTED]; and


 


(C)           if the transfer shall be
made pursuant to any other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate in the form of Exhibit B,
including the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable.


 


(ii)       Restricted
Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be
exchanged by the Holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:


 


(A)         [INTENTIONALLY OMITTED];


 


(B)          [INTENTIONALLY OMITTED];


 


(C)          [INTENTIONALLY OMITTED];


 


(D)          the Registrar receives the
following:


 


(1)           if the Holder of such
Restricted Definitive Note proposes to exchange such Note for an Unrestricted
Definitive Note, a certificate from such Holder in the form of Exhibit C,
including the certifications in item (1)(d) thereof; or


 


(2)           if the Holder of such
Restricted Definitive Note proposes to transfer such Note to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit B, including
the certifications in item (4) thereof;


 


and,
in each such case set forth in this subparagraph (D), if the Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to the Issuer to
the effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required or advisable in order to maintain
compliance with the Securities Act.


 


(iii)          Unrestricted
Definitive Notes to Unrestricted Definitive Notes.  A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note.  Upon
receipt of a request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.


 


(f)            [INTENTIONALLY
OMITTED]


 


(g)            Legends.  The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.


 


33

















 


(i)   Private Placement Legend.  With respect to a Restricted Global Note,
unless and until all of the beneficial interests in such Restricted Global Note
have been exchanged for beneficial interests in the Unrestricted Global Note in
accordance with Section 2.07(k) or the Private Placement Legend has
been removed from such Restricted Global Note in accordance with Section 2.07(b)(iv),
or the Issuer determines and there is delivered to the Trustee an Opinion of
Counsel reasonably satisfactory to the Trustee and a letter of representation
of the Issuer reasonably satisfactory to the Trustee to the effect that the
following legend and the related restrictions on transfer are not required in
order to maintain compliance with the provisions of the Securities Act, each
Global Note and each Definitive Note (and all Notes issued in exchange therefor
or substitution therefor) shall bear the legend in substantially the following
form:


 


THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS. 
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.  THE HOLDER OF THIS NOTE BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS
THE OWNER OF THIS NOTE HEREON (OR ANY PREDECESSOR OF THIS NOTE) (THE “RESALE
RESTRICTION TERMINATION DATE”) ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S
AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT
TO CLAUSE (D) PRIOR TO THE END OF THE 40 DAY DISTRIBUTION COMPLIANCE
PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT
TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.  THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.


 


34

















 


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


 


(ii)  Global Note Legend.  Each Global Note shall bear a legend in
substantially the following form:


 


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


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.  UNLESS THIS GLOBAL
NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, TO
FAIRPOINT COMMUNICATIONS, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


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


 


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


 


(i)       Cancellation
and/or Adjustment of Global Notes.  At such time as all beneficial interests in a
particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole and not in
part, each such Global Note shall 


 


35

















 


be
returned to or retained and canceled by the Trustee in accordance with Section 2.12
hereof.  At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note or for Definitive Notes, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a
Person who shall take delivery thereof in the form of a beneficial interest in
another Global Note, such other Global Note shall be increased accordingly and
an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.


 


(j)       General Provisions Relating
to Transfers and Exchanges.


 


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


 


(ii)      No service charge shall be
made to a Holder of a beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but the Issuer
may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or transfer
pursuant to Sections 2.11, 3.06, 3.08, 4.10, 4.14 and 9.05).


 


(iii)     The Registrar shall not be
required to register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.


 


(iv)     All Global Notes and
Definitive Notes issued upon any registration of transfer or exchange of Global
Notes or Definitive Notes shall be the valid and legally binding obligations of
the Issuer, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.


 


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


 


(vi)     Prior to due presentment for
the registration of a transfer of any Note, the Trustee, any Agent and the
Issuer may deem and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal (including any Capitalized Interest) of and interest on such Notes
and for all other purposes, and none of the Trustee, any Agent or the Issuer
shall be affected by notice to the contrary.


 


(vii)    The Trustee shall
authenticate Global Notes and Definitive Notes in accordance with the
provisions of Section 2.02.


 


36

















 


(viii)              All certifications,
certificates and Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.07 to effect a registration of transfer or
exchange may be submitted by facsimile (followed promptly by originals).


 


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


 


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


 


(xi) Each Holder agrees to
provide reasonable indemnity to the Issuer and the Trustee against any
liability that may result from the transfer, exchange or assignment of such
Holder’s Note in violation of any provision of this Indenture and/or applicable
United States federal or state securities law.


 


(k)      Automatic
Exchange from Restricted Global Note to Unrestricted Global Note.  Upon compliance with the following
procedures, all of the beneficial interests in a Restricted Global Note shall
be exchanged for beneficial interests in the Unrestricted Global Note.  In order to effect such exchange, the Issuer
shall provide written notice to the Trustee instructing the Trustee to (i) direct
the Depositary to transfer all of the outstanding beneficial interests in a
particular Restricted Global Note to the Unrestricted Global Note and provide
the Depositary with all such information as is necessary for the Depositary to
appropriately credit and debit the relevant Holder accounts and (ii) provide
prior written notice to all Holders of such exchange, which notice must include
the date such exchange is to occur, the CUSIP number of the relevant Restricted
Global Note and the CUSIP number of the Unrestricted Global Note into which
such Holders’ beneficial interests will be exchanged.  As a condition to any such exchange pursuant
to this Section 2.07(k), the Trustee shall be entitled to receive from the
Issuer, and rely conclusively without any liability, upon an officers’
certificate and an Opinion of Counsel to the Issuer, in form and in substance
reasonably satisfactory to the Trustee, to the effect that such transfer of
beneficial interests to the Unrestricted Global Note shall be effected in
compliance with the Securities Act.  Upon
such exchange of beneficial interests pursuant to this Section 2.07(k),
the Registrar shall endorse Schedule A to the relevant Notes and reflect on its
books and records the date of such transfer and a decrease and increase,
respectively, in the principal amount of the applicable Restricted Global Note(s) and
the Unrestricted Global Note, respectively, equal to the principal amount of
beneficial interests transferred. 
Following any such transfer pursuant to this Section 2.07(k), the
relevant Restricted Global Note shall be cancelled.


 


(l)       Transfers of
Notes Held by Affiliates.  Any
certificate (i) evidencing a Note that has been transferred to an
affiliate (as defined in Rule 405) of an Issuer within one year after the
Issue Date, as evidenced by a notation on the assignment form for such transfer
or in the representation letter delivered in respect thereof or (ii) evidencing
a Note that has been acquired from an affiliate (other than by an affiliate) in
a transaction or a chain of transactions not involving any public offering,
shall, until one year after the last date on which either the Issuer or any
affiliate of the Issuer was an owner of such Note, in each case, be in the form
of a permanent Definitive Note and bear the Private Placement Legend subject to
the restrictions in Section 2.07(g)(i). 
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.04 and this Section 2.07.  The Issuer, at its sole cost and expense,
shall have the right to inspect and make copies of all such letters, 


 


37

















 


notices
or other written communications at any reasonable time upon the giving of
reasonable written notice to the Registrar.


 


Section 2.08.          Replacement Notes.


 


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


 


(b)      Every replacement Note is an
additional obligation of the Issuer and shall be entitled to all of the
benefits of this Indenture equally and proportionately with all other Notes
duly issued hereunder.


 


Section 2.09.          Outstanding Notes.


 


(a)      The Notes outstanding at any
time are all the Notes authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions
hereof, and those described in this Section 2.09(a) as not outstanding.  Except as set forth in Section 2.10, a
Note does not cease to be outstanding because the Issuer or an Affiliate of the
Issuer holds the Note.


 


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


 


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


 


(d)      If the Paying Agent (other
than the Issuer, a Subsidiary of the Issuer or an Affiliate of any of the
foregoing) holds, on a redemption date or maturity date, money sufficient to
pay Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue interest.


 


Section 2.10.          Treasury Notes.


 


In determining whether the Holders of the required
aggregate principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Issuer or by any Affiliate of the Issuer, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in conclusively relying on
any such direction, waiver or consent, only Notes shown on the register as
being so owned shall be so disregarded. 
Notwithstanding the foregoing, Notes that are to be acquired by the
Issuer or an Affiliate of the Issuer pursuant to an exchange offer, tender offer
or other agreement shall not be deemed to be owned by such entity until legal
title to such Notes passes to such entity.


 


38

















 


Section 2.11.          Temporary Notes.


 


(a)      Until certificates
representing Notes are ready for delivery, the Issuer may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary
Notes.  Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the
Issuer considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee.  Without
unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes.


 


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


 


Section 2.12.          Cancellation.


 


The Issuer at any time may deliver Notes to the
Trustee for cancellation.  The Registrar
and Paying Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. 
The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall dispose of canceled Notes in accordance with its customary procedures for
the disposition of canceled securities in effect as of the date of such
disposition (subject to the record retention requirement of the Exchange
Act).  Certification of the disposition
of all canceled Notes shall be delivered to the Issuer.  The Issuer may not issue new Notes to replace
Notes that it has paid, redeemed or that have been delivered to the Trustee for
cancellation.


 


Section 2.13.          Defaulted Interest.


 


If the Issuer defaults in a payment of interest on
the Notes, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01. 
The Issuer shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Note and the date of the
proposed payment.  The Issuer shall fix
or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than
10 days prior to the related payment date for such defaulted interest.  At least 15 days before the special record
date, the Issuer (or, upon the written request of the Issuer, the Trustee in
the name and at the expense of the Issuer) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.


 


Section 2.14.          CUSIP Numbers.


 


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


 


39
















 


ARTICLE THREE

REDEMPTION AND OFFERS TO PURCHASE


 


Section 3.01.                             Notices to Trustee.


 


If the Issuer elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07, it shall furnish to the
Trustee, at least 15 Business Days before notice of redemption is required to
be mailed or caused to be mailed to Holders pursuant to Section 3.03
hereof (or such shorter period that is acceptable to the Trustee) but not more
than 60 days before a redemption date, an Officers’ Certificate setting forth (i) the
clause of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.


 


Section 3.02.                             Selection of Notes to Be
Redeemed.


 


(a)      If less than all of the
Notes are to be redeemed at any time, the Trustee shall select the Notes to be
redeemed among the Holders of the Notes in compliance with the requirements of
the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee shall deem fair and appropriate
(and in a manner that complies with applicable legal requirements).  In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date, by
the Trustee from the outstanding Notes not previously called for redemption.


 


(b)      The Trustee shall promptly
notify the Issuer in writing of the Notes selected for redemption and, in the
case of any Note selected for partial redemption, the principal amount at maturity
(including Capitalized Interest) thereof to be redeemed.  Notes selected for redemption and portions of
Notes selected will be in amounts of $1.00 or whole multiples of $1.00 in
excess thereof, including any Capitalized Interest; except that if all of the
Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1.00 shall be redeemed.


 


Section 3.03.                             Notice of Redemption.


 


(a)      At least 30 days but not
more than 60 days before a redemption date, the Issuer shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the
notice is issued in connection with a defeasance of the Notes or a satisfaction
and discharge of this Indenture.


 


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


 


(i)   the redemption date;


 


(ii)  the redemption price;


 


(iii) if any Note is
being redeemed in part, the portion of the principal amount at maturity of such
Note (including Capitalized Interest with respect to such Note) to be redeemed
and that, after the redemption date, upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion of the original Note
shall be issued in the name of the Holder thereof upon cancellation of the original
Note;


 


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


 


40

















 


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


 


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


 


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


 


(viii)              the CUSIP
number, or any similar number, if any, printed on the Notes being redeemed; and


 


(ix) that no representation is
made as to the correctness or accuracy of the CUSIP number, if any, listed in
such notice or printed on the Notes.


 


(b)               At the Issuer’s
written request, the Trustee shall give the notice of redemption in the Issuer’s
name and at its expense; provided, however, that the Issuer shall have delivered to the Trustee,
at least 15 Business Days before the notice of redemption is required to be
mailed or caused to be mailed to Holders pursuant to this Section 3.03 (or
such shorter period as is acceptable to the Trustee), an Officers’ Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph.  The notice, if mailed in the manner provided
herein, shall be presumed to have been given, whether or not the Holder
receives such notice.  In any case,
failure to give such notice by mail or any defect in the notice to the Holder
of any Note shall not affect the validity of the proceeding for the redemption
of any other Note.


 


Section 3.04.                             Effect of Notice of
Redemption.


 


Once notice of redemption is mailed in accordance
with Section 3.03 hereof, Notes called for redemption become irrevocably
due and payable on the redemption date at the redemption price.  Interest, if any, on Notes called for
redemption ceases to accrue on and after the redemption date, unless the Issuer
defaults in making the applicable redemption payment.  A notice of redemption may not be conditional.


 


Section 3.05.                             Deposit of Redemption Price.


 


(a)      Not later than 12:00 p.m.
(noon) Eastern Time on the redemption date, the Issuer shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price
of and accrued and unpaid interest on all Notes to be redeemed on that
date.  The Trustee or the Paying Agent
shall promptly return to the Issuer any money deposited with the Trustee or the
Paying Agent by the Issuer in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest on, all Notes to be redeemed.


 


(b)      If the Issuer complies with
the provisions of the preceding paragraph, on and after the redemption date,
interest shall cease to accrue on the Notes or the portions of Notes called for
redemption (regardless of whether certificates for such Notes are actually
surrendered).  If a Note is redeemed on
or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date.  If any Note called for redemption
shall not be so paid upon surrender for redemption because of the failure of
the Issuer to comply with the preceding paragraph, interest shall be paid on
the unpaid principal from the redemption date until such principal is paid and
to 


 


41

















 


the
extent lawful on any interest not paid on such unpaid principal, in each case
at the rate provided in the Notes and in Section 4.01.


 


Section 3.06.                             Notes Redeemed in Part.


 


Upon surrender and cancellation of a Note that is
redeemed in part, the Issuer shall issue and the Trustee shall authenticate for
the Holder at the expense of the Issuer, a new Note equal in principal amount
(including any Capitalized Interest) to the unredeemed portion of the Note
surrendered.


 


Section 3.07.                             Optional Redemption.


 


(a)      The Issuer shall not have
the option to redeem the Notes prior to April 1, 2013.  On or after April 1, 2013, the Issuer
may redeem all or a part of the Notes (including any Capitalized Interest paid
thereon) upon not less than 30 nor more than 60 days’ notice, at the redemption
prices (expressed as percentages of principal amount to be redeemed) set forth
below plus accrued and unpaid interest thereon, to, but not including, the
applicable redemption date, if redeemed during the twelve-month period
beginning on April 1 of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2013

  	
   

  	
  106.563

  	
  %

  
	
  2014

  	
   

  	
  104.375

  	
  %

  
	
  2015

  	
   

  	
  102.188

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)      Any redemption pursuant to
this Section 3.07 shall be made in accordance with the provisions of
Sections 3.01 through 3.06.


 


Section 3.08.                             Repurchase Offers.


 


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


 


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


 


If the Purchase Date is on or after an interest
record date and on or before the related interest payment date, any accrued and
unpaid interest shall be paid to the Person in whose name a Note is registered
at the close of business on such record date, and no additional interest shall
be payable to Holders who tender Notes pursuant to the Repurchase Offer.


 


Upon the commencement of a Repurchase Offer, the
Issuer shall send, or at the Issuer’s request, the Trustee shall send at the
Issuer’s expense, by first class mail, a notice to each of the Holders, 


 


42

















 


with a copy to the
Trustee.  The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Repurchase Offer.  The
Repurchase Offer shall be made to all Holders. 
The notice, which shall govern the terms of the Repurchase Offer, shall
state:


 


(a)           that the Repurchase Offer is
being made pursuant to this Section 3.08 and Section 4.10 or Section 4.14
hereof;


 


(b)           the length of time the
Repurchase Offer shall remain open;


 


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


 


(d)           that any Note not tendered
or accepted for payment shall continue to accrue interest;


 


(e)           that, unless the Issuer
defaults in making such payment, any Note (or portion thereof) accepted for
payment pursuant to the Repurchase Offer shall cease to accrue interest after
the Purchase Date;


 


(f)            that Holders electing to
have a Note purchased pursuant to a Repurchase Offer may elect to have Notes
purchased in integral multiples of $1.00 (including any Capitalized Interest);


 


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


 


(h)           that Holders shall be
entitled to withdraw their election if the Issuer, the Depositary or the Paying
Agent, as the case may be, receives, not later than the expiration of the Offer
Period, a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase and
a statement that such Holder is withdrawing his election to have such Note
purchased;


 


(i)            that, if the aggregate
amount of Notes surrendered by Holders exceeds the Offer Amount, the Trustee
shall, subject in the case of a Repurchase Offer made pursuant to Section 4.10
to the provisions of Section 4.10, select the Notes to be purchased on a
pro rata basis (with such adjustments as may be deemed appropriate by the
Trustee so that only Notes in denominations of $1.00, or integral multiples
thereof (including any Capitalized Interest), shall be purchased); and


 


(j)            that Holders whose Notes
were purchased only in part shall be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).


 


On the Purchase Date, the Issuer shall, to the
extent lawful, subject in the case of a Repurchase Offer made pursuant to the
provisions of Section 4.10, accept for payment on a pro rata basis to the
extent necessary, the Offer Amount of Notes (or portions thereof) tendered
pursuant to the Repurchase Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, and shall deliver to the Trustee an Officers’
Certificate stating that such Notes (or portions thereof) were accepted for payment
by the Issuer in accordance with the terms of this Section 3.08.  The Issuer, the Depositary or the Paying 


 


43

















 


Agent, as the case may be,
shall promptly (but in any case not later than three Business Days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of Notes tendered by such Holder, as the case may be, and
accepted by the Issuer for purchase, and the Issuer shall promptly issue a new
Note.  The Trustee, upon written request
from the Issuer, shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount (including any Capitalized Interest) equal to any
unpurchased portion of the Note surrendered by such Holder. Any Note not so
accepted shall be promptly mailed or delivered by the Issuer to the respective
Holder thereof.  The Issuer shall
publicly announce the results of the Repurchase Offer on the Purchase Date.


 


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


 


Section 3.09.                             No Sinking Fund.


 


The Issuer is not required to make mandatory
redemption or sinking fund payments with respect to the Notes.


 


ARTICLE FOUR

COVENANTS


 


Section 4.01.                             Payment of Notes.


 


(a)      The Issuer shall pay or
cause to be paid the principal (including any Capitalized Interest) of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes.  Principal,
including any Capitalized Interest, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Issuer
or one of its Subsidiaries, holds as of 12:00 p.m. (noon) Eastern Time on
the due date money deposited by the Issuer in immediately available funds and
designated for and sufficient to pay all principal (including any Capitalized
Interest), premium, if any, and interest then due. Capitalized Interest shall
be considered paid on the due date if, in accordance with the terms of the
Notes, the principal amount of the applicable Notes is increased in an amount
equal to the amount of the applicable Capitalized Interest.


 


(b)      The Issuer shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal (including any Capitalized Interest)                                                                                
at the rate equal to 2% per annum in excess of the then applicable
interest rate on the Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest, (without regard to any applicable grace
period), at the same rate to the extent lawful.


 


Section 4.02.                             Maintenance of Office or
Agency.


 


(a)      The Issuer shall maintain in
the Borough of Manhattan, The City of New York, an office or agency (which may
be an office of the Trustee or Registrar or agent of the Trustee or Registrar)
where Notes may be surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served.  The Issuer
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. 
If at any time the Issuer shall fail to maintain any such required
office or agency or 


 


44

















 


shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.


 


(b)      The Issuer may also from
time to time designate one or more other offices or agencies where the Notes
may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or rescission shall in any
manner relieve the Issuer of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes.  The Issuer shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


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


 


Section 4.03.                             Reports.


 


(a)      The Issuer shall furnish to
the Trustee and, upon request, to beneficial owners and prospective investors a
copy of all of the information and reports referred to in clauses (i) and (ii) below
within the time periods specified in the Commission’s rules and
regulations:


 


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


 


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


 


Whether or not required by the Commission, the
Issuer shall comply with the periodic reporting requirements of the Exchange
Act and shall file the reports specified in Section 4.03(a)(i) and Section 4.03(a)(ii) with
the Commission within the time periods specified above unless the Commission
shall not accept such a filing.  The
Issuer agrees that it shall not take any action for the purpose of causing the
Commission not to accept any such filings. 
If, notwithstanding the foregoing, the Commission shall not accept the
Issuer’s filings for any reason, the Issuer shall post the reports referred to
in the preceding paragraph on its website within the time periods that would
apply if the Issuer were required to file those reports with the Commission.


 


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


 


(c)      The Issuer, for so long as
any Notes remain outstanding, shall furnish to the Holders and to prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.


 


(d)      Delivery of such reports,
information and documents to the Trustee pursuant to such provisions is for
informational purposes only and the Trustee’s receipt of such shall not
constitute 


 


45

















 


constructive
notice of any information contained therein or determinable from information
contained therein, including the Issuer’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).


 


(e)      Notwithstanding anything
herein to the contrary, the Issuer will not be deemed to have failed to comply
with any of its obligations hereunder for purposes of Section 6.01(v) until
90 days after the date any report hereunder is due (it being understood, for
the avoidance of doubt, that the time period set forth in Section 6.01(v) shall
be deemed to have begun concurrently with the 90 day period referenced in this
paragraph and in no event shall such time period set forth in Section 6.01(v) be
deemed to conclude after the 90 day period referenced herein).


 


Section 4.04.                             Compliance Certificate.


 


(a)      The Issuer and each
Guarantor, if any (to the extent that it is so required under the TIA), shall
deliver to the Trustee, within 120 days after the end of each fiscal year, an
Officers’ Certificate stating that a review of the activities of the Issuer 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
Issuer and Guarantors, if any, have kept, observed, performed and fulfilled
their obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to his or her knowledge, the Issuer and
Guarantors, if any, have kept, observed, performed and fulfilled their
obligations under this Indenture and are not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Issuer and Guarantors, if any, are taking or propose to take with
respect thereto) and that to his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal
(including any Capitalized Interest) of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Issuer and Guarantors, if any, are taking or propose to take with respect
thereto.


 


Except with respect to receipt of payments on the
Notes and any Default or Event of Default information contained in the Officer’s
Certificate delivered to it pursuant to this Section 4.04, the Trustee
shall have no duty to review, ascertain or confirm the Issuer’s compliance
with, or breach of, any representation, warranty or covenant made in this
Indenture.


 


(b)      So long as not contrary to
the then current recommendations of the American Institute of Certified Public
Accountants or the Public Company Accounting Oversight Board, the year-end
financial statements delivered pursuant to Section 4.03(a)(i) above
shall be accompanied by a written statement of the Issuer’s independent public
accountants (which shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Issuer or any Guarantor has failed to comply with the provisions of Article Four
or Article Five hereof in so far as they relate to financial or accounting
matters or, if an event of noncompliance has come to their attention,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.


 


(c)      The Issuer shall, so long as
any of the Notes are outstanding, deliver to the Trustee, within 30 days after
any Officer becomes aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the
Issuer and the Guarantors, if any, are taking or propose to take with respect
thereto.


 


46

















 


Section 4.05.                             Taxes.


 


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


 


Section 4.06.                             Stay, Extension and Usury
Laws.


 


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


 


Section 4.07.                             Restricted Payments.


 


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


 


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


 


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


 


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


 


(iv)    make any Restricted
Investment


 


(all such payments and other actions set
forth in Section 4.07(a)(i) through (iv) above being collectively
referred to as “Restricted Payments”), unless, at the time of and after
giving pro forma effect to such Restricted Payment:


 


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


 


47

















 


(B)           the Issuer’s Consolidated Leverage Ratio is less
than 5.0 to 1; and


 


(C)           such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Issuer and its Restricted Subsidiaries
after the Original Issue Date (excluding Restricted Payments permitted by
clauses (2), (3), (4), (5), (6), (9), (10), (11), (12) and (13) of Section 4.07(b)),
is less than the sum, without duplication, of:


 


(1)           for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing
after the Original Issue Date to the end of the Issuer’s most recently ended
fiscal quarter for which internal financial statements are available (the “Basket
Period”), an amount equal to the sum of (x) for each fiscal quarter in
which the Issuer’s Consolidated Leverage Ratio is less than 5.0 to 1
(determined at the end of such fiscal quarter), the Issuer’s Consolidated Cash
Flow for such fiscal quarter less 1.6 times the Issuer’s Consolidated Interest
Expense for such fiscal quarter and (y) for each fiscal quarter in which
the Issuer’s Consolidated Leverage Ratio is equal to or greater than 5.0 to 1
(determined at the end of such fiscal quarter), zero, plus


 


(2)           100% of the aggregate net
cash proceeds received by the Issuer since the Original Issue Date as a
contribution to its common equity capital or from the issue or sale of Equity
Interests (other than Disqualified Stock) of the Issuer or from the Incurrence
of Indebtedness (including the issuance of Disqualified Stock) of the Issuer or
any of its Restricted Subsidiaries that has been converted into or exchanged
for such Equity Interests (other than Equity Interests sold to, or Indebtedness
held by, a Subsidiary of the Issuer), plus


 


(3)           with respect to Restricted
Investments made by the Issuer and its Restricted Subsidiaries after the
Original Issue Date, the aggregate amount of cash, or the Fair Market Value of
property other than cash, equal to the net reduction in such Restricted
Investments in any Person resulting from repayments of loans or advances, or
other transfers of assets, in each case to the Issuer or any Restricted
Subsidiary or from the net proceeds received in cash, or in property other than
cash (valued at such property’s Fair Market Value), from the sale of any such
Restricted Investment (except, in each case, to the extent any such payment or
proceeds are included in the calculation of Consolidated Net Income) or from
redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries.


 


(b)      Section 4.07(a) shall
not prohibit, so long as, in the case of Section 4.07(b)(5), (7), (8), (9) and
(12), no Event of Default has occurred and is continuing or would be caused
thereby:


 


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


 


(2)           the payment of
any dividend or other distribution by a Restricted Subsidiary of the Issuer to
the holders of its Common Stock on a pro rata basis;


 


(3)           the making of
any Restricted Payment in exchange for, or out of the net cash proceeds of a
contribution to the common equity of the Issuer or a substantially concurrent
sale (other than to a Subsidiary of the Issuer) of, Equity Interests (other
than Disqualified Stock) of the Issuer; provided that
the amount of any such net cash proceeds that are utilized for any such Restricted
Payment shall be excluded from Section 4.07(a)(C)(2);


 


48

















 


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


 


(5)           the declaration
and payment of dividends or distributions to holders of any class or series of
Disqualified Stock of the Issuer or any Preferred Stock of its Restricted
Subsidiaries issued or incurred in accordance with Section 4.09;


 


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


 


(7)           the repurchase
of Equity Interests of the Issuer constituting fractional shares in an
aggregate amount since the Original Issue Date not to exceed $1.0 million;


 


(8)           the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Issuer or any of its Restricted Subsidiaries held by any current or
former employee, consultant or director of the Issuer or any of its Restricted
Subsidiaries pursuant to the terms of any employee equity subscription
agreement, stock option agreement or similar agreement approved by a majority
of the disinterested members of the Board of Directors of the Issuer; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests in any fiscal year
shall not exceed the sum of:  (i) $15.0
million, with unused amounts pursuant to this subclause (i) being carried
over to succeeding fiscal years up to a maximum of $30.0 million in any fiscal
year; plus (ii) the aggregate net cash proceeds received by the
Issuer since the Original Issue Date as a contribution to its common equity
capital or from the issue or sale of Equity Interests (other than Disqualified
Stock) of the Issuer to any current or former employee, consultant or director
of the Issuer or any of its Restricted Subsidiaries; provided
that the amount of any such net cash proceeds that are used to permit a
repurchase, redemption or other acquisition under this subclause (ii) shall
be excluded from Section 4.07(a)(C)(2); plus
(iii) the cash proceeds of any “key man” life insurance received by the
Issuer or any of its Restricted Subsidiaries (and not included in the
Consolidated Cash Flow of the Issuer) that are used to make such redemptions,
repurchases, redemptions or other acquisitions;


 


(9)           dividends paid
by the Issuer on its Common Stock in an amount not to exceed $50.0 million in
the aggregate for the quarterly dividend payments payable for the fiscal
quarter in which the Merger occurs and the first and second full fiscal
quarters immediately following the Issue Date;


 


(10)         purchase,
redeem, defease or otherwise acquire or retire for value any Indebtedness
subordinated to the Notes or any Guarantee of the Notes pursuant to provisions
requiring the Issuer or any Restricted Subsidiary to offer to purchase, redeem,
defease or otherwise acquire or retire for value such subordinated Indebtedness
upon the occurrence of a “change of control” as defined in the agreements or
instruments governing such subordinated Indebtedness; provided,
however, that the Issuer has made a
Change of Control Offer and have purchased all Notes tendered in connection
with such Change of Control Offer;


 


(11)         Restricted
Payments made as part of the Transactions;


 


(12)         other
Restricted Payments in an aggregate amount not to exceed $40.0 million; and


 


 


49
















 


(13)         the redemption or repurchase of Permitted Junior Capital issued pursuant
to Section 4.09(b)(xv), so long as at the time of each such redemption or
repurchase, the Issuer’s Consolidated Leverage Ratio is less than 4.5 to 1.


 


(c)      The amount of all Restricted
Payments (other than cash) shall be the Fair Market Value on the date of the
Restricted Payment of the asset(s) or securities proposed to be
transferred or issued to or by the Issuer or such Subsidiary, as the case may
be, pursuant to the Restricted Payment. 
For purposes of determining compliance with this Section 4.07, in
the event that a Restricted Payment meets the criteria of more than one of the
categories described in clauses (1) through (12) above or is entitled to
be made pursuant to Section 4.07(a), the Issuer shall, in its sole
discretion, classify (or from time to time may reclassify) such Restricted
Payment in any manner that complies with this covenant and such Restricted
Payment will be treated as having been made pursuant to only one of such categories.


 


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


 


(a)      The Issuer shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
create or permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to:


 


(i)       pay dividends or make any
other distributions on its Capital Stock to the Issuer or any of its Restricted
Subsidiaries or pay any liabilities owed to the Issuer or any of its Restricted
Subsidiaries;


 


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


 


(iii)     transfer any of
its properties or assets to the Issuer or any of its Restricted Subsidiaries.


 


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


 


(i)       existing under, by reason of
or with respect to the Credit Agreement, Existing Indebtedness or any other
agreements in effect on the Original Issue Date and any amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacements or
refinancings thereof; provided that
the encumbrances and restrictions in any such amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacement or refinancings
are, in the good faith judgment of the Issuer’s Board of Directors, no more
restrictive, taken as a whole, than those contained in the Credit Agreement,
Existing Indebtedness or such other agreements, as the case may be, as in effect
on the Original Issue Date;


 


(ii)      set forth in this Indenture,
the Notes or any Guarantee of the Notes;


 


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


 


(iv)     with respect to any Person
or the property or assets of a Person acquired by the Issuer or any of its
Restricted Subsidiaries existing at the time of such acquisition and not
Incurred in connection with or in contemplation of such acquisition, which
encumbrance or restriction is not applicable to any Person or the properties or
assets of any Person, other than the Person,


 


50





















 


or
the property or assets of the Person, so acquired and any amendments,
modifications, restatements, renewals, extensions, supplements, refundings, replacements
or refinancings thereof, provided that the encumbrances and restrictions in any
such amendments, modifications, restatements, renewals, extensions,
supplements, refundings, replacement or refinancings are, in the good faith
judgment of the Issuer’s Board of Directors, no more restrictive, taken as a
whole, than those in effect on the date of the acquisition;


 


(v)      in the case of Section 4.08(a)(iii):


 


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


 


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


 


(3)      purchase money obligations for property acquired in
the ordinary course of business that impose restrictions on the property so
acquired, or


 


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


 


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


 


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


 


(viii)     existing under,
by reason of or with respect to Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are, in the good faith judgment
of the Issuer’s Board of Directors, no more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being refinanced;


 


(ix)      existing under, by reason of
or with respect to provisions with respect to the disposition or distribution
of assets or property, in each case contained in joint venture agreements,
limited liability company agreements and other similar agreements and which the
Issuer’s Board of Directors determines in good faith will not adversely affect
the Issuer’s ability to make payments of principal or interest payments on the
Notes; and


 


(x)       existing under, by reason of
or with respect to Indebtedness of any Restricted Subsidiary of the Issuer; provided that the Issuer’s Board of Directors determines in
good faith at the time such encumbrances or restrictions are created that they
do not adversely affect the Issuer’s ability to make payments of principal or
interest on the Notes.


 


51





















 


Section 4.09.          Incurrence of Indebtedness.


 


(a)      The Issuer shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
Incur any Indebtedness; provided, however, that the Issuer or any of its Restricted
Subsidiaries may Incur Indebtedness, if the Issuer’s Consolidated Leverage
Ratio at the time of the Incurrence of such additional Indebtedness, and after
giving effect thereto, is less than 5.0 to 1.


 


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


 


(i)       the Incurrence by the Issuer
or any of its Restricted Subsidiaries of Indebtedness under Credit Facilities
in an aggregate principal amount at any one time outstanding pursuant to this
clause (i) not to exceed $2,030.0 million, less the aggregate amount of
all Net Proceeds of Asset Sales applied by the Issuer or any Restricted
Subsidiary thereof to permanently repay any such Indebtedness pursuant to Section 4.10;


 


(ii)      Existing Indebtedness;


 


(iii)     the Incurrence
by the Issuer of Indebtedness represented by (i) the Notes to be issued on
the Issue Date and (ii) any Capitalized Interest paid with respect to the
interest due on the Notes on October 1, 2009;


 


(iv)     the Incurrence by the Issuer
or any Restricted Subsidiary thereof of Indebtedness represented by Capital
Lease Obligations, mortgage financings or purchase money obligations, in each
case, Incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property (real or personal),
plant or equipment used in the business of the Issuer or such Restricted
Subsidiary (whether through the direct acquisition of such assets or the
acquisition of Equity Interests of any Person owning such assets), in an aggregate
principal amount at any time outstanding, including all Permitted Refinancing
Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred
pursuant to this clause (iv), not to exceed the greater of (x) 3.0% of
Tangible Assets at the time of Incurrence and (y) $75.0 million;


 


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


 


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


 


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


 


(B)           (1) any subsequent
issuance or transfer of Equity Interests that results in any such Indebtedness
being held by a Person other than the Issuer or a Restricted Subsidiary thereof
and (2) any sale or other transfer of any such Indebtedness to a Person
that is not either the Issuer or a Restricted Subsidiary thereof, shall be
deemed, in each case, to


 


52

















 


constitute an Incurrence of such Indebtedness by the Issuer or such
Restricted Subsidiary, as the case may be, that was not permitted by this Section 4.09(b)(vi);


 


(vii)       the Guarantee
by the Issuer or any of its Restricted Subsidiaries of Indebtedness of the
Issuer or a Restricted Subsidiary thereof that was permitted to be Incurred by
another provision of this Section 4.09;


 


(viii)      the Incurrence
by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations that
are Incurred for the purpose of fixing, hedging or swapping interest rate,
commodity price or foreign currency exchange rate risk (or to reverse or amend
any such agreements previously made for such purposes), and not for speculative
purposes;


 


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


 


(x)        the Incurrence
by the Issuer or any of its Restricted Subsidiaries of Indebtedness arising
from the honoring by a bank or other financial institution of a check, draft or
similar instrument drawn against insufficient funds in the ordinary course of
business; provided, however,
that such Indebtedness is extinguished within five Business Days of its Incurrence;


 


(xi)       the Incurrence by the Issuer
or any of its Restricted Subsidiaries of Indebtedness constituting
reimbursement obligations with respect to letters of credit in respect of
workers’ compensation claims or self-insurance obligations or bid, performance,
appeal or surety bonds (in each case other than for an obligation for borrowed
money);


 


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


 


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


 


(xiv)       the Incurrence
by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness
in an aggregate principal amount at any time outstanding, including all Indebtedness
Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to
this Section 4.09(b)(xiv), not to exceed $75.0 million; and


 


(xv)      on or after the six-month
anniversary of the Original Issue Date, the Incurrence by the Issuer or any of
its Restricted Subsidiaries of Permitted
Junior Capital issued to Capgemini, U.S. LLC pursuant to the Master Services
Agreement in an aggregate amount not to exceed $50.0 million plus any accrued
dividends or interest paid in kind; provided that (1) 100%
of the


 


53





















 


Net
Proceeds thereof are applied to pay expenses under the Transition Services
Agreement and (2) interest and dividends thereon, as applicable, shall be
payable in kind and not payable in cash.


 


For purposes of determining compliance with this Section 4.09,
in the event that any proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in Section 4.09(b)(i) through
(xiv) above, or is entitled to be Incurred pursuant to Section 4.09(a),
the Issuer will be permitted to classify such item of Indebtedness at the time
of its Incurrence in any manner that complies with this Section 4.09.  Indebtedness under the Credit Agreement
outstanding on the Original Issue Date shall be deemed to have been Incurred on
such date in reliance on the exception provided by Section 4.09(b)(i) and
may not be reclassified.  Additionally,
all or any portion of any item of Indebtedness may later be reclassified as
having been Incurred pursuant to Section 4.09(a) or under any one of
the categories of Permitted Debt described in Section 4.09(b)(i) through
(xiv) so long as such Indebtedness is permitted to be Incurred pursuant to such
provision at the time of reclassification.


 


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


 


(d)      The Issuer shall not incur
any Indebtedness that is contractually subordinate in right of payment to any
other Indebtedness of the Issuer unless it is contractually subordinate in
right of payment to the Notes to the same extent.  No Guarantor, if any, shall Incur any
Indebtedness that is contractually subordinate in right of payment to any other
Indebtedness of such Guarantor unless it is contractually subordinate in right
of payment to any Guarantee of the Notes by such Guarantor to the same extent; provided that no Indebtedness will be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the
Issuer or any Guarantor (as applicable) solely by reason of any Liens or
Guarantees arising or created in respect thereof or by virtue of the fact that
the holders of any secured Indebtedness have entered into intercreditor
agreements giving one or more of such holders priority over the other holders
in the collateral held by them.


 


Section 4.10.          Asset Sales.


 


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


 


(i)       the Issuer (or the
Restricted Subsidiary, as the case may be) receives consideration at the time
of such Asset Sale at least equal to the Fair Market Value of the assets or
Equity Interests issued or sold or otherwise disposed of; and


 


(ii)      at least 75% of the
consideration therefor received by the Issuer or such Restricted Subsidiary is
in the form of cash, Cash Equivalents or Replacement Assets or a combination
thereof.  For purposes of this Section 4.10(a)(ii),
each of the following shall be deemed to be cash:


 


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


 


54

















 


(B)           any securities, notes or
other obligations received by the Issuer or any such Restricted Subsidiary from
such transferee that are converted by the Issuer or such Restricted Subsidiary
into Cash Equivalents or Replacement Assets within 180 days of the receipt
thereof (to the extent of the Cash Equivalents or Replacement Assets received
in that conversion); and


 


(C)           any Designated Noncash
Consideration received by the Issuer or any of its Restricted Subsidiaries in
such Asset Sale having an aggregate Fair Market Value, taken together with all
other Designated Noncash Consideration received pursuant to this clause (C) that
is at that time outstanding, not to exceed the greater of (x) 2.0% of Tangible
Assets or (y) $50.0 million (with the Fair Market Value of each item of
Designated Noncash Consideration being measured at the time received and without
giving effect to subsequent changes in value).


 


(b)      Within 365 days after the
receipt by the Issuer or any of its Restricted Subsidiaries of any Net Proceeds
from an Asset Sale, or, if the Issuer
or such Restricted Subsidiary has entered into a binding commitment or
commitments with respect to any of the actions described below, within the
later of (x) 365 days after the receipt of any Net Proceeds from an Asset
Sale or (y) 180 days after entering into such commitment or commitments,
the Issuer or such Restricted Subsidiary may apply such Net Proceeds at its
option:


 


(i)       (x) to permanently
repay Indebtedness ranking pari passu with the Notes that is secured by assets
of the Issuer or its Restricted Subsidiaries (to the extent of the value of the
assets securing such Indebtedness), (y) (A) to permanently repay
Obligations under the term loan portion of the Credit Agreement or (B) to
repay Obligations under the revolving portion of the Credit Agreement or (z) to
permanently repay Indebtedness of any of the Issuer’s Restricted Subsidiaries;
or


 


(ii)      to purchase Replacement
Assets.


 


Pending the final application of any such Net
Proceeds, the Issuer or such Restricted Subsidiary may temporarily reduce revolving
credit borrowings or otherwise invest such Net Proceeds in any manner that is
not prohibited by this Indenture.


 


(c)      On the 366th day after an
Asset Sale or such earlier date, if any, as the Issuer determines not to apply
the Net Proceeds relating to such Asset Sale as set forth in Section 4.10(b) (each
such date being referred as an “Excess Proceeds Trigger Date”), such
aggregate amount of Net Proceeds that has not been applied on or before the Excess
Proceeds Trigger Date as permitted pursuant to Section 4.10(b) (“Excess
Proceeds”) shall be applied by the Issuer to make an offer (an  “Asset Sale Offer”) to all Holders of
Notes and all holders of other Indebtedness that is pari passu
with the Notes or any Guarantee of the Notes containing provisions similar to
those set forth in this Indenture with respect to offers to purchase with the
proceeds of sales of assets, to purchase the maximum principal amount
(including any Capitalized Interest) of Notes and such other pari passu Indebtedness that may be purchased out of the
Excess Proceeds.  The offer price in any
Asset Sale Offer shall be equal to 100% of the principal amount (including any
Capitalized Interest) of the Notes and such other pari passu
Indebtedness plus accrued and unpaid interest thereon to the date of purchase,
and shall be payable in cash.


 


(d)      The Issuer may defer the
Asset Sale Offer until there are aggregate unutilized Excess Proceeds equal to
or in excess of $25.0 million resulting from one or more Asset Sales, at which
time the entire unutilized amount of Excess Proceeds (not only the amount in
excess of $25.0


 


55





















 


million)
shall be applied as provided in Section 4.10(c).  If any Excess Proceeds remain after consummation
of an Asset Sale Offer, the Issuer and its Restricted Subsidiaries may use such
Excess Proceeds for any purpose not otherwise prohibited by this
Indenture.  If the aggregate principal
amount of Notes and such other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Notes and such other pari passu
Indebtedness shall be purchased on a pro rata basis based on the principal
amount (including any Capitalized Interest) of Notes and such other pari passu Indebtedness tendered.  Upon completion of each Asset Sale Offer, the
Excess Proceeds subject to such Asset Sale shall no longer be deemed to be
Excess Proceeds.


 


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


 


Section 4.11.          Transactions with Affiliates.


 


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


 


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


 


(ii)      the Issuer delivers to the
Trustee:


 


(1)           with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate consideration in excess
of $20.0 million, a Board Resolution set forth in an Officers’ Certificate
certifying that such Affiliate Transaction or series of related Affiliate
Transactions complies with this Section 4.11 and that such Affiliate Transaction
or series of related Affiliate Transactions has been approved by a majority of
the disinterested members of the Board of Directors of the Issuer (if any); and


 


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


 


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


 


(i)       transactions between or
among the Issuer and/or its Restricted Subsidiaries or any Person that shall
become a Restricted Subsidiary as part of any such transactions (but excluding
any such transaction to the extent that any payments thereunder made by the
Issuer or any of


 


56





















 


its
Restricted Subsidiaries to such Person are substantially concurrently paid by
such Person to any other Affiliate of the Issuer, except to the extent that any
such transaction would not be prohibited by this Section 4.11);


 


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


 


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


 


(iv)      any sale of Equity Interests
(other than Disqualified Stock) of the Issuer;


 


(v)       transactions pursuant to
agreements or arrangements in effect on the Original Issue Date, or any
amendment, modification, or supplement thereto or replacement thereof, as long
as such agreement or arrangement, as so amended, modified, supplemented or
replaced, taken as a whole, is, as determined in good faith by the Issuer’s
Board of Directors, not materially more disadvantageous to the Issuer and its
Restricted Subsidiaries than the original agreement or arrangement in existence
on the Original Issue Date;


 


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


 


(vii)      payments or
loans to employees or consultants in the ordinary course of business which are
approved by a majority of the disinterested members of the Board of Directors
of the Issuer in good faith;


 


(viii)      transactions
with a Person that is an Affiliate of the Issuer solely because the Issuer,
directly or indirectly, owns Equity Interests in, or controls, such Person;


 


(ix)       transactions with customers,
clients, suppliers or purchasers or sellers of goods or services, in each case
in the ordinary course of business and otherwise in compliance with the terms
of this Indenture, which are fair to the Issuer and its Restricted Subsidiaries
in the determination of a majority of the disinterested members of the Board of
Directors or the senior management of the Issuer, or are on terms at least as
favorable as might reasonably have been obtained at such time from an
unaffiliated party; and


 


(x)        the
Transactions, all transactions in connection therewith (including but not limited
to the financing thereof), and all fees and expenses paid or payable in
connection with the Transactions.


 


Section 4.12.          Liens.


 


The Issuer shall not, and shall not permit any of
its Restricted Subsidiaries to, create, incur, assume or otherwise cause or
suffer to exist or become effective any Lien of any kind (other than Permitted
Liens) upon any of their property or assets, now owned or hereafter acquired,
unless all payments due under this Indenture and the Notes are secured on an
equal and ratable basis with the obligations


 


57

















 


so secured (or, in the case
of Indebtedness subordinated to the Notes or any Guarantee of the Notes, prior
or senior thereto, with the same relative priority as the Notes shall have with
respect to such subordinated Indebtedness) until such time as such obligations
are no longer secured by a Lien.


 


Section 4.13.          Business Activities.


 


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


 


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


 


(a)      If a Change of Control
occurs, each Holder of Notes shall have the right to require the Issuer to
repurchase all or any part (equal to $1.00 or an integral multiple of $1.00 in
excess thereof) of that Holder’s Notes pursuant to an offer by the Issuer (a “Change
of Control Offer”) at an offer price (a “Change of Control Payment”)
in cash equal to not less than 101% of the aggregate principal amount
(including any Capitalized Interest) of the Notes repurchased plus accrued and
unpaid interest thereon to the date of repurchase (the “Change of Control
Payment Date”).  No later than 30
days following any Change of Control (unless the Issuer has exercised its right
to redeem the Notes pursuant to Section 3.07 hereof), the Issuer shall
mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Notes on the Change
of Control Payment Date specified in such notice, which date shall be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed, pursuant to the procedures described in Section 3.08 (including
the notice required thereby).  The Issuer
shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of the
Notes as a result of a Change of Control. 
To the extent that the provisions of any securities laws or regulations
conflict with the Change of Control provisions of this Indenture, the Issuer
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under the Change of Control provisions
of this Indenture by virtue of such compliance.


 


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


 


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


 


(ii)       deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered; and


 


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


 


(c)      The Paying Agent shall
promptly mail or wire transfer to each Holder of Notes so tendered the Change
of Control Payment for such Notes, and the Trustee shall promptly authenticate
and mail (or cause to be transferred by book entry) to each Holder a “new” Note
equal in principal amount to any unpurchased portion of the Notes surrendered,
if any; provided that each such new Note shall
be in a principal amount of $1.00 or an integral multiple of $1.00 in excess
thereof.


 


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


 


58





















 


(e)      Notwithstanding anything to
the contrary in this Section 4.14, the Issuer shall not be required to
make a Change of Control Offer upon a Change of Control if a third party makes
the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Section 4.14 and all
other provisions of this Indenture applicable to a Change of Control Offer made
by the Issuer and purchases all Notes tendered and not withdrawn under such
Change of Control Offer.


 


Section 4.15.          [INTENTIONALLY LEFT BLANK].


 


Section 4.16.          Designation of Restricted and Unrestricted
Subsidiaries.


 


(a)      The Board of Directors of
the Issuer may designate any Restricted Subsidiary of the Issuer (other than (x) the
Issuer or (y) any Subsidiary of the Issuer that owns Equity Interests in
the Issuer) to be an Unrestricted Subsidiary; provided
that:


 


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


 


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


 


(iii)      the Subsidiary
being so designated:


 


(1)           is not party to any agreement, contract, arrangement
or understanding with the Issuer or any Restricted Subsidiary thereof unless
either (A) such agreement, contract, arrangement or understanding is with
customers, clients, suppliers or purchasers or sellers of goods or services, in
each case in the ordinary course of business and otherwise in compliance with
the terms of this Indenture, which are fair to the Issuer and its Restricted
Subsidiaries in the determination of a majority of the disinterested members of
the Board of Directors or the senior management of the Issuer, or (B) the
terms of any such agreement, contract, arrangement or understanding are no less
favorable to the Issuer or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Issuer;


 


(2)           is a Person with respect to
which neither the Issuer nor any of its Restricted Subsidiaries has any direct
or indirect obligation (A) to subscribe for additional Equity Interests or
(B) to maintain or preserve such Person’s financial condition or to cause
such Person to achieve any specified levels of operating results; and


 


(3)           has not Guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness
of the Issuer or any of its Restricted Subsidiaries, except (A) to the
extent such Guarantee or credit support would be released upon such designation
or (B) a pledge of the Equity Interests of the Unrestricted Subsidiary
that is the obligor thereunder; and


 


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


 


59




















 


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


 


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


 


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


 


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


 


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


 


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


 


Section 4.17.          Payments for Consent.


 


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


 


Section 4.18.          Guarantees.


 


The Issuer will not permit any of its Restricted
Subsidiaries, whether in existence on the Original Issue Date or formed,
purchased or otherwise acquired thereafter, directly or indirectly, by way of a
pledge of any intercompany note or otherwise, to incur or Guarantee or pledge
any assets to secure the payment of any other Indebtedness (other than (1) guarantees
by Restricted Subsidiaries of the Issuer which were guarantors on the Original
Issue Date of obligations pursuant to the Credit Facilities and (2) Indebtedness
permitted under Section 4.09(b)(iv) and Section 4.09(b)(xiv)) of
the Issuer or any Restricted Subsidiary unless such Restricted Subsidiary is a
Guarantor or simultaneously executes and delivers to the Trustee an Opinion of
Counsel and a supplemental indenture providing for the Guarantee of the payment
of the Notes by such Restricted Subsidiary, which Guarantee shall be senior to
or pari passu with such
Subsidiary’s Guarantee of such other Indebtedness.


 


60

















 


Section 4.19.          Sale and Leaseback Transactions.


 


The Issuer shall not, and shall not permit any of
its Restricted Subsidiaries to, enter into any Sale and Leaseback Transaction; provided that the Issuer or any Restricted Subsidiary
thereof may enter into a Sale and Leaseback Transaction if:


 


(i)       the Issuer or such Restricted
Subsidiary, as applicable, could have (A) Incurred Indebtedness in an
amount equal to the Attributable Debt relating to such Sale and Leaseback
Transaction and (B) incurred a Lien to secure such Indebtedness pursuant
to Section 4.12;


 


(ii)       the gross cash proceeds of
that Sale and Leaseback Transaction are at least equal to the Fair Market Value
of the property that is the subject of that Sale and Leaseback Transaction; and


 


(iii)      the transfer of
assets in that Sale and Leaseback Transaction is permitted by, and the Issuer applies
the proceeds of such transaction in compliance with, Section 4.10.


 


ARTICLE FIVE

SUCCESSORS


 


Section 5.01.          Merger, Consolidation or Sale of Assets.


 


(a)      The Issuer shall not,
directly or indirectly:  (1) consolidate
or merge with or into another Person (whether or not the Issuer is the
surviving corporation) or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties and assets of the Issuer
and its Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person, unless:


 


(i)       either:  (1) the Issuer is the surviving
corporation; or (2) the Person formed by or surviving any such
consolidation or merger (if other than the Issuer) or to which such sale, assignment,
transfer, conveyance or other disposition shall have been made (A) is a
corporation or limited liability company organized or existing under the laws
of the United States, any state thereof or the District of Columbia (provided that, if the Person formed by or surviving such consolidation
or merger, or the transferee of such properties or assets, is a limited
liability company, then there shall be a Restricted Subsidiary of such Person
which shall be a corporation organized in the jurisdictions permitted by this Section 5.01(a)(i) and
a co-obligor of the Notes) and (B) assumes all the obligations of the
Issuer under the Notes and this Indenture pursuant to agreements reasonably
satisfactory to the Trustee;


 


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


 


(iii)      immediately
after giving effect to such transaction on a pro forma basis, the Issuer or the
Person formed by or surviving any such consolidation or merger (if other than
the Issuer), or to which such sale, assignment, transfer, conveyance or other
disposition will have been made, shall be permitted to Incur at least $1.00 of
additional Indebtedness pursuant to the Consolidated Leverage Ratio test set
forth in Section 4.09(a); and


 


(iv)      each Guarantor, unless such
Guarantor is the Person with which the Issuer has entered into a transaction
under this Section 5.01, shall have by amendment to its Guarantee of the
Notes confirmed that such Guarantee shall apply to the obligations of the
Issuer or the surviving Person in accordance with the Notes and this Indenture.


 


61





















 


Notwithstanding the foregoing, the provisions
of clauses (ii), (iii) and (iv) above shall not apply to the
consummation of the Merger.


 


(b)      In addition, the Issuer and
its Restricted Subsidiaries may not, directly or indirectly, lease all or
substantially all of the properties or assets of the Issuer and its Restricted
Subsidiaries considered as one enterprise, in one or more related transactions,
to any other Person.  Section 5.01(a)(ii) and
(iii) shall not apply to any merger, consolidation or sale, assignment,
transfer, conveyance or other disposition of assets between or among the Issuer
and any of its Restricted Subsidiaries.  Section 5.01(a)(ii) and
(iii) shall also not apply to any transaction if, in the good faith
determination of the Board of Directors of the Issuer, the sole purpose of the
transaction is to reincorporate the Issuer in another state of the United
States.


 


Section 5.02.          Successor Corporation Substituted.


 


Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Issuer in accordance with Section 5.01
hereof, the successor corporation formed by such consolidation or into or with
which the Issuer is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for (so that from and after the date of such consolidation, merger, sale,
assignment, lease, conveyance or other disposition, the provisions of this
Indenture referring to the  “Issuer”
shall refer instead to the successor corporation and not to the Issuer), and
may exercise every right and power of, the Issuer under the Indenture with the
same effect as if such successor Person had been named as the Issuer in this
Indenture.  In the event of any such
transfer (other than any transfer by way of lease), the predecessor Issuer will
be released and discharged from all liabilities and obligations in respect of
the Notes and the Indenture and the predecessor Issuer may be dissolved, wound
up or liquidated at any time thereafter.


 


ARTICLE SIX

DEFAULTS AND REMEDIES


 


Section 6.01.          Events of Default.


 


Each
of the following is an “Event of Default”:


 


(i)       default for 30 days in the
payment when due of interest on the Notes;


 


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


 


(iii)       failure by the
Issuer or any of its Restricted Subsidiaries to comply with Section 5.01;


 


(iv)       failure by the Issuer or any
of its Restricted Subsidiaries to comply with Section 4.10 or Section 4.14
(other than a failure to purchase Notes);


 


(v)       failure by the Issuer or any
of its Restricted Subsidiaries for 60 days after written notice to comply with
any of the other agreements in this Indenture (other than a failure to purchase
Notes);


 


(vi)       default under any mortgage,
indenture or instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness by the Issuer or any of its


 


62





















 


Restricted
Subsidiaries (or the payment of which is Guaranteed by the Issuer or any of its
Restricted Subsidiaries) whether such Indebtedness or Guarantee now exists, or
is created after the Issue Date, if that default:


 


(A)          is caused by a failure to
make any principal payment when due at the final maturity of such Indebtedness
and prior to the expiration of any grace period provided in such Indebtedness
on the date of such default (a “Payment Default”); or


 


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


 


and,
in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$50.0 million or more;


 


(vii)      failure by the
Issuer or any of its Restricted Subsidiaries to pay final judgments (to the
extent such judgments are not paid or covered by insurance provided by a reputable
carrier that has the ability to perform) aggregating in excess of $50.0
million, which judgments are not paid, discharged or stayed for a period of 60
days;


 


(viii)     except as
permitted by this Indenture, any Guarantee of the Notes provided by a
Significant Subsidiary of the Issuer (or any Restricted Subsidiaries that
together would constitute a Significant Subsidiary of the Issuer) will be held
in any judicial proceeding to be unenforceable or invalid or will cease for any
reason to be in full force and effect or any Guarantor that is a Significant Subsidiary
of the Issuer (or a group that would constitute a Significant Subsidiary of the
Issuer), or any Person acting on behalf of any Guarantor that is a Significant
Subsidiary of the Issuer (or a group that would constitute a Significant
Subsidiary of the Issuer), will deny or disaffirm its obligations under its
Guarantee of the Notes;


 


(ix)       the Issuer or any
Significant Subsidiary of the Issuer (or any Restricted Subsidiaries that
together would constitute a Significant Subsidiary of the Issuer) pursuant to
or within the meaning of Bankruptcy Law:


 


(A)          commences a voluntary case,


 


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


 


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


 


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


 


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


 


(A)          is for relief against the
Issuer or any Significant Subsidiary of the Issuer (or Restricted Subsidiaries
that together would constitute a Significant Subsidiary of the Issuer), in an involuntary
case; or


 


(B)           appoints a custodian of the
Issuer or any Significant Subsidiary of the Issuer (or Restricted Subsidiaries
that together would constitute a Significant Subsidiary of


 


63

















 


the Issuer) or for all or substantially all of the property of the
Issuer or any Significant Subsidiary of the Issuer (or Restricted Subsidiaries
that together would constitute a Significant Subsidiary of the Issuer); or


 


(C)           orders the liquidation of
the Issuer or any Significant Subsidiary of the Issuer (or Restricted
Subsidiaries that together would constitute a Significant Subsidiary of the
Issuer);


 


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


 


Section 6.02.          Acceleration.


 


(a)      In the case of an Event of
Default specified in clause 6.01(ix) or (x) with respect to (i) the
Issuer, (ii) any Significant Subsidiary of the Issuer (or any Restricted
Subsidiaries that together would constitute a Significant Subsidiary of the
Issuer), all outstanding Notes will become due and payable immediately without
further action or notice.  If any other
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount (including any Capitalized Interest) of the then
outstanding Notes may declare all the Notes to be due and payable immediately
by notice in writing to the Issuer specifying the Event of Default.


 


(b)      In the event of a
declaration of acceleration of the Notes because an Event of Default has
occurred and is continuing as a result of the acceleration of any Indebtedness
described in Section 6.01(vi), the declaration of acceleration of the
Notes shall be automatically annulled if the holders of all Indebtedness
described in Section 6.01(vi) have rescinded the declaration of
acceleration in respect of such Indebtedness within 30 Business Days of the
date of such declaration, and if the annulment of the acceleration of the Notes
would not conflict with any judgment or decree of a court of competent
jurisdiction, and all existing Events of Default, except non-payment of
principal (including any Capitalized Interest) or interest on the Notes that
became due solely because of the acceleration of the Notes, have been cured or
waived.


 


(c)      In the case of any Event of
Default occurring by reason of any willful action or inaction taken or not
taken by or on behalf of the Issuer or any of its Restricted Subsidiaries with
the intention of avoiding payment of the premium that the Issuer would have had
to pay if the Issuer then had elected to redeem the Notes pursuant to Section 3.07,
an equivalent premium shall also become and be immediately due and payable to
the extent permitted by law upon the acceleration of the Notes.


 


Section 6.03.          Other Remedies.


 


(a)      If an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal (including any Capitalized Interest), premium,
if any, and interest with respect to the Notes or to enforce the performance of
any provision of the Notes or this Indenture.


 


(b)      The Trustee may maintain a
proceeding even if it does not possess any of the Notes or does not produce any
of them in the proceeding.  A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. 
All remedies are cumulative to the extent permitted by law.


 


64





















 


Section 6.04.          Waiver of Past Defaults.


 


Holders of a majority in aggregate principal amount
(including any Capitalized Interest) of the Notes then outstanding by notice to
the Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences hereunder except a continuing
Default or Event of Default in the payment of interest on, or the principal
(including any Capitalized Interest) of, the Notes.


 


The Issuer shall deliver to the Trustee an Officers’
Certificate stating that the requisite percentage of Holders have consented to
such waiver and attaching copies of such consents.  In case of any such waiver, the Issuer, the
Trustee and the Holders shall be restored to their former positions and rights
hereunder and under the Notes, respectively. 
This Section 6.04 shall be in lieu of Section 316(a)(1)(B) of
the TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly
excluded from this Indenture and the Notes, as permitted by the TIA.  Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture, but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.


 


Section 6.05.          Control by Majority.


 


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


 


Section 6.06.          Limitation on Suits.


 


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


 


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


 


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


 


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


 


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


 


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


 


(b)      A Holder may not use this
Indenture to affect, disturb or prejudice the rights of another Holder or to
obtain a preference or priority over another Holder (it being understood that
the


 


65





















 


Trustee
does not have an affirmative duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holder).


 


Section 6.07.          Rights of Holders of Notes to Receive Payment.


 


Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of the principal
(including any Capitalized Interest) of, premium, if any, or interest on, such
Note or to bring suit for the enforcement of any such payment, on or after the
due date expressed in the Notes, which right shall not be impaired or affected
without the consent of the Holder.


 


Section 6.08.          Collection Suit by Trustee.


 


If an Event of Default specified in Section 6.01(i) or
(ii) occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against the Issuer
for the whole amount of principal (including any Capitalized Interest) of,
premium, if any, and interest remaining unpaid on the Notes and interest on
overdue principal and premium, if any, and, to the extent lawful, interest and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


 


Section 6.09.          Trustee May File Proofs of Claim.


 


The Trustee is authorized to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to the
Issuer or Guarantors, if any (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect, receive
and distribute any money or other securities or property payable or deliverable
on any such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07.  To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 7.07 out
of the estate in any such proceeding shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise.  Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.


 


Section 6.10.          Priorities.


 


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


 


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


 


66

















 


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


 


Third:  to the Issuer or to such party as a court of
competent jurisdiction shall direct.


 


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


 


Section 6.11.          Undertaking for Costs.


 


In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant
in the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. 
This Section 6.11 does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 6.07 hereof, or a suit by Holders of more
than ten percent in principal amount of the then outstanding Notes.


 


ARTICLE SEVEN

TRUSTEE


 


Section 7.01.          Duties of Trustee.


 


Except to the extent, if any, provided otherwise in
the TIA (as from time to time in effect):


 


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


 


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


 


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


 


(ii)       in the absence of bad faith
on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture.  However,
in the case of any certificates or opinions required to be delivered hereunder,
the Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).


 


(c)           The Trustee may not be
relieved from liabilities for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:


 


67

















 


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


 


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


 


(iii)       the Trustee
shall not be liable with respect to any action it takes or omits to take in
good faith in accordance with a direction received by it pursuant to Section 6.05.


 


(d)           Whether or not therein
expressly so provided, every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this Section 7.01.


 


(e)           No provision of this
Indenture shall require the Trustee to expend or risk its own funds or incur
any liability.  The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
costs, liability or expense that might be incurred by it in connection with the
request or direction.


 


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


 


Section 7.02.          Certain Rights of Trustee.


 


(a)      The Trustee may conclusively
rely 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.


 


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


 


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


 


(d)      The Trustee shall not be
liable for any action it takes or omits to take in good faith that it believes
to be authorized or within the rights or powers conferred upon it by this Indenture.


 


(e)      Unless otherwise
specifically provided in this Indenture, any demand, request, direction or notice
from the Issuer shall be sufficient if signed by an Officer of the Issuer.


 


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


 


68




















 


(g)      Except with respect to Section 4.01,
the Trustee shall have not duty to inquire as to the performance of the Issuer
with respect to the covenants contained in Article 4.  In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event
of Default occurring pursuant to Sections 4.01, 6.01(i) or 6.01(ii) or
(ii) any Default or Event of Default of which the Trustee shall have
received written notification or obtained actual knowledge.


 


(h)      In no event shall the
Trustee be responsible or liable for special, indirect, or consequential loss
or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.


 


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


 


(j)       The Trustee may request that
the Issuer deliver a certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant
to this Indenture.


 


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


 


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


 


Section 7.03.          Individual Rights of Trustee.


 


The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may become a creditor of, or otherwise
deal with, the Issuer or any of its Affiliates with the same rights it would
have if it were not Trustee.  However, in
the event that the Trustee acquires any conflicting interest as described in
the Trust Indenture Act of 1939 (as in effect at such time), it must eliminate
such conflict within 90 days, apply to the Commission for permission to continue
as trustee or resign. Any Agent may do the same with like rights and
duties.  The Trustee is also subject to
Sections 7.10 and 7.11.


 


Section 7.04.          Trustee’s Disclaimer.


 


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


 


Section 7.05.          Notice of Defaults.


 


If a Default or Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to Holders a notice
of the Default or Event of Default within 90 days after it occurs.  Except in the case of a Default or Event of
Default relating to the payment of principal (including any


 


69

















 


Capitalized Interest) or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders.


 


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


 


(a)      Within 60 days after each May 15
beginning with the May 15 following the date hereof, and for so long as
Notes remain outstanding, the Trustee shall mail to the Holders a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but
if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be
transmitted).  The Trustee also shall comply
with TIA Section 313(b)(2).  The
Trustee shall also transmit by mail all reports as required by TIA Section 313(c).


 


(b)      A copy of each report at the
time of its mailing to the Holders shall be mailed to the Issuer and filed with
the Commission and each stock exchange on which the Notes are listed in accordance
with TIA Section 313(d).  The Issuer
shall promptly notify the Trustee in writing when the Notes are listed on any
stock exchange or any delisting thereof.


 


Section 7.07.          Compensation and Indemnity.


 


(a)      The Issuer shall pay to the
Trustee from time to time reasonable compensation for its acceptance of this
Indenture and services hereunder in accordance with a written schedule provided
by the Trustee to the Issuer.  The
Trustee’s compensation shall not be limited by any law on compensation of a
trustee of an express trust.  The Issuer
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services.  Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee’s agents and counsel.


 


(b)      The Issuer and the
Guarantors, if any, shall indemnify the Trustee, its officers, directors,
agents and employees against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Issuer and the Guarantors, if
any (including this Section 7.07), and defending itself against any claim
(whether asserted by the Issuer or any Holder or any other Person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence, bad faith or willful misconduct.  The Trustee shall notify the Issuer and the
Guarantors, if any, promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the
Issuer shall not relieve the Issuer of its obligations hereunder unless the
failure to notify the Issuer impairs the Issuer’s ability to defend such
claim.  The Issuer shall defend the claim
and the Trustee shall cooperate in the defense. 
The Issuer need not pay for any settlement made without its
consent.  The indemnity contained herein
shall survive the resignation or removal of the Trustee and the termination of
this Indenture.


 


(c)      The obligations of the
Issuer and the Guarantors, if any, under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture and resignation or removal of
the Trustee.


 


(d)      To secure the Issuer’s
payment obligations in this Section 7.07, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on particular
Notes.  Such Lien shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee.


 


70





















 


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


 


(f)       The Trustee shall comply
with the provisions of TIA Section 313(b)(2) to the extent
applicable.


 


Section 7.08.          Replacement of Trustee.


 


(a)      A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.


 


(b)      The Trustee may resign in
writing at any time and be discharged from the trust hereby created by so
notifying the Issuer.  The Holders of a
majority in principal amount (including any Capitalized Interest) of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the
Issuer in writing.  The Issuer may remove
the Trustee if:


 


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


 


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


 


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


 


(iv)       the Trustee becomes
incapable of acting.


 


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


 


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


 


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


 


(f)       A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Issuer.  Thereupon, the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee
shall have all the rights, powers and duties of the Trustee under this
Indenture.  The successor Trustee shall
mail a notice of its succession to Holders. 
The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided that all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in


 


71





















 


Section 7.07.  Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.


 


Section 7.09.          Successor Trustee by Merger, Etc.


 


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


 


Section 7.10.          Eligibility; Disqualification.


 


There shall at all times be a Trustee hereunder that
is a corporation organized and doing business under the laws of the United
States of America or of any state thereof that is authorized under such laws to
exercise corporate trust powers, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of
at least $50.0 million as set forth in its most recent published annual report
of condition.


 


This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and
(5).  The Trustee is subject to TIA Section 310(b).


 


Section 7.11.          Preferential Collection of Claims Against Issuer.


 


The Trustee is subject to TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b).  A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated
therein.  The Trustee hereby waives any
right to set off any claim that it may have against the Issuer in any capacity
(other than as Trustee and Paying Agent) against any of the assets of the
Issuer held by the Trustee; provided, however, that if the Trustee is or becomes a lender of any
other Indebtedness permitted hereunder to be pari passu
with the Notes, then such waiver shall not apply to the extent of such Indebtedness.


 


ARTICLE EIGHT

DEFEASANCE AND COVENANT DEFEASANCE


 


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


 


The Issuer may, at the option of their Boards of
Directors evidenced by a resolution set forth in an Officers’ Certificate, at
any time, elect to have either Section 8.02 or 8.03 be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article Eight.


 


Section 8.02.          Legal Defeasance and Discharge.


 


Upon the Issuer’s exercise under Section 8.01
hereof of the option applicable to this Section 8.02, the Issuer shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
deemed to have been discharged from its obligations with respect to all
outstanding Notes and all obligations of the Guarantors, if any, shall be
deemed to have been discharged with respect to their obligations under any
Guarantees of the Notes on the date the conditions set forth below are
satisfied (hereinafter,  “Legal
Defeasance”).  For this purpose, Legal
Defeasance means that the Issuer and the Guarantors, if any, shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Notes and any Guarantees of the Notes, respectively, which shall thereafter be
deemed to be “outstanding” only for the purposes of Section 8.05 and the
other Sections of this Indenture referred to in (a) and (b) below,
and to have satisfied all of their other obligations under such Notes and this
Indenture (and


 


72

















 


the Trustee, on demand of
and at the expense of the Issuer, shall execute proper instruments acknowledging
the same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder: 
(a) the rights of Holders of outstanding Notes to receive solely
from the trust fund described in Section 8.04, and as more fully set forth
in such Section, payments in respect of the principal (including any
Capitalized Interest) of, premium, if any, and interest on such Notes when such
payments are due, (b) the Issuer’s obligations with respect to such Notes
under Sections 2.08 and 2.11 and the Issuer’s obligations under Section 4.02,
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Issuer’s and the Guarantors’, if any, obligations in
connection therewith and (d) this Article Eight. Subject to
compliance with this Article Eight, the Issuer may exercise its option
under this Section 8.02 notwithstanding the prior exercise of their option
under Section 8.03 hereof.


 


Section 8.03.          Covenant Defeasance.


 


Upon the Issuer’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03, the Issuer and the
Guarantors, if any, shall, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be released from their obligations under the
covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11,
4.12, 4.13, 4.14, 4.16, 4.17, 4.18, 4.19 and 5.01 with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall
thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). 
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Issuer and the Guarantors, if any, may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 6.01, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby.  In addition, upon the Issuer’s exercise under
Section 8.01 of the option applicable to this Section 8.03, subject
to the satisfaction of the conditions set forth in Section 8.04, Sections
6.01(iii) through (viii) shall not constitute Events of Default.


 


Section 8.04.          Conditions to Legal or Covenant Defeasance.


 


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


 


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


 


(ii)       in the case of Legal
Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that (a) the Issuer has received
from, or there has been published by, the Internal Revenue Service a ruling or (b) since
the Issue Date, there has been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result


 


73





















 


of
such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred;


 


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


 


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


 


(v)       such Legal Defeasance or Covenant
Defeasance will not result in a breach or violation of, or constitute a default
under any material agreement or instrument to which the Issuer or any of its
Restricted Subsidiaries is a party or by which the Issuer or any of its
Restricted Subsidiaries is bound;


 


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


 


(vii)      the Issuer must
deliver to the Trustee an Officers’ Certificate stating that the deposit was
not made by the Issuer with the intent of preferring the Holders over the other
creditors of the Issuer with the intent of defeating, hindering, delaying or
defrauding creditors of the Issuer or others;


 


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


 


(ix)       the Issuer must deliver to
the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent (other than the expiration of the 123-day period
referred to in Section 8.04(a)(vi)) relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.


 


Notwithstanding the foregoing, the requirements of
clause (ii) above with respect to a Legal Defeasance need not be complied
with if all Notes not theretofore delivered to the Trustee for cancellation (x) have
become due and payable or (y) will become due and payable on the maturity
date within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense,
of the Issuer.


 


74

















 


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


 


(a)      Subject to Section 8.06,
all money and non-callable Government Securities (including the proceeds
thereof) deposited with the Trustee pursuant to Section 8.04 in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal
(including any Capitalized Interest), premium, if any, or interest but such
money need not be segregated from other funds except to the extent required by
law.


 


(b)      The Issuer shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the cash or non-callable Government Securities deposited pursuant
to Section 8.04 or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of the outstanding Notes.


 


(c)      Anything in this Article Eight
to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer
from time to time upon the request of the Issuer any money or non-callable
Government Securities held by it as provided in Section 8.04 which, in the
opinion of a nationally recognized investment bank, appraisal firm or firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04),
are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section 8.06.          Repayment to the Issuer.


 


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


 


Section 8.07.          Reinstatement.


 


If the Trustee or Paying Agent is unable to apply
any United States dollars or non-callable Government Securities in accordance
with Section 8.02 or 8.03, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer’s obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 and, in the case of
a Legal Defeasance, the obligations of any Guarantors under their respective
Guarantees shall be revised and reinstated as though no deposit had occurred
pursuant to Section 8.02, in each case until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section 8.02
or 8.03, as the case may be; provided, however, that, if the Issuer makes any payment of principal
(including any


 


75

















 


Capitalized Interest) of,
premium, if any, or interest on any Note following the reinstatement of their
obligations, the Issuer shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.


 


ARTICLE NINE

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01.          Without Consent of Holders of Notes.


 


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


 


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


 


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


 


(iii)       to provide for
the assumption of any of the Issuer’s or any Guarantor’s obligations to Holders
in the case of a merger or consolidation or sale of all or substantially all of
the Issuer’s or such Guarantor’s assets (including in connection with the
Transactions);


 


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


 


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


 


(vi)       to comply with Section 4.18;


 


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


 


(viii)       to provide for
the payment of Capitalized Interest in accordance with this Indenture and the
Notes; or


 


(ix)       to conform the text of this
Indenture or the Notes to any provision of the section of the Offering
Memorandum entitled “Description of Notes” to the extent that such provision in
the “Description of Notes” was intended to conform to the text of this
Indenture or the Notes.


 


Upon the request of the Issuer accompanied by a
Board Resolution authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of any documents requested under Section 7.02(b) hereof,
the Trustee shall join with the Issuer in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.


 


Section 9.02.          With Consent of Holders of Notes.


 


(a)      Except as otherwise provided
in this Section 9.02, the Issuer and the Trustee may amend or supplement
this Indenture or the Notes with the consent of the Holders of at least a
majority


 


76





















 


in
principal amount (including any Capitalized Interest) of the Notes then
outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Notes), and, subject
to Sections 6.04 and 6.07, any existing Default or Event of Default or compliance
with any provision of this Indenture or the Notes may be waived with the
consent of the Holders of a majority in principal amount (including any
Capitalized Interest) of the then outstanding Notes (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes).


 


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


 


(c)      Upon the request of the
Issuer accompanied by resolutions of its Board of Directors authorizing the
execution of any such amendment or supplement to this Indenture, and upon the
filing with the Trustee of evidence satisfactory to the Trustee of the consent
of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the
documents described in Section 7.02(b), the Trustee shall join with the
Issuer in the execution of such amendment or supplement unless such amendment
or supplement directly affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amendment or supplement.


 


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


 


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


 


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


 


(ii)       reduce the principal
(including any Capitalized Interest) of or change the fixed maturity of any
Note or alter the provisions, or waive any payment, with respect to the redemption
of the Notes other than provisions relating to Sections 3.08, 4.10 and 4.14
(except to the extent provided in clause (ix) below);


 


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


 


77




















 


(iv)       waive a Default or Event of
Default in the payment of principal (including any Capitalized Interest) of,
interest, premium, if any, on the Notes (except a rescission of acceleration of
the Notes by the Holders of at least a majority in aggregate principal amount
of the Notes and a waiver of the payment default that resulted from such
acceleration);


 


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


 


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


 


(vii)       release any
Guarantor that is a Significant Subsidiary of the Issuer (or any Restricted
Subsidiaries that together would constitute a Significant Subsidiary of the
Issuer) from any of its obligations under its Guarantee of the Notes or this
Indenture, except in accordance with the terms of this Indenture;


 


(viii)       impair the
right to institute suit for the enforcement of any payment on or with respect
to the Notes or any Guarantee of the Notes provided by a Significant Subsidiary
of the Issuer (or any Restricted Subsidiaries that together would constitute a
Significant Subsidiary of the Issuer);


 


(ix)        amend, change
or modify the obligation of the Issuer to make and consummate an Asset Sale
Offer with respect to any Asset Sale in accordance with Section 4.10 after
the obligation to make such Asset Sale Offer has arisen, or the obligation of
the Issuer to make and consummate a Change of Control Offer in the event of a
Change of Control in accordance with Section 4.14 after such Change of
Control has occurred, including, in each case, amending, changing or modifying
any definition relating thereto;


 


(x)        except as
otherwise permitted under Section 4.18 and Section 5.01, consent to
the assignment, or transfer or release by the Issuer or any Guarantor that is a
Significant Subsidiary of the Issuer (or any Restricted Subsidiaries that
together would constitute a Significant Subsidiary of the Issuer), of any of
their rights or obligations under this Indenture;


 


(xi)        amend or modify
any of the provisions of this Indenture or the related definitions affecting
the ranking of the Notes or any Guarantee of the Notes in any manner adverse to
the Holders of the Notes or any Guarantee of the Notes; or


 


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


 


Section 9.03.          Compliance with Trust Indenture Act.


 


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


 


Section 9.04.          Revocation and Effect of Consents.


 


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


 


78

















 


waiver, supplement or
amendment becomes effective.  An
amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every Holder.


 


Section 9.05.          Notation on or Exchange of Notes.


 


(a)      The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note thereafter
authenticated.  The Issuer in exchange
for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.


 


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


 


Section 9.06.          Trustee To Sign Amendments, Etc.


 


The Trustee shall sign any amendment or supplement
to this Indenture or any Note authorized pursuant to this Article Nine if
the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. 
The Issuer may not sign an amendment or supplemental indenture or Note
until its Board of Directors approves it. 
In executing any amendment or supplement or Note, the Trustee shall
receive and (subject to Section 7.01) shall be fully protected in conclusively
relying upon an Officers’ Certificate and an Opinion of Counsel stating that
the execution of such amendment or supplement is authorized or permitted by
this Indenture.


 


ARTICLE TEN

NOTE GUARANTEES


 


Section 10.01.       Guarantee.


 


(a)      Subject to this Article Ten,
each of the Guarantors, if any, hereby, jointly and severally, and fully and
unconditionally, guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
obligations of the Issuer hereunder or thereunder, that:  (i) the principal (including any
Capitalized Interest) of, premium, if any, and interest on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal (including any
Capitalized Interest) of, premium, if any, and interest on the Notes, if lawful
(subject in all cases to any applicable grace period provided herein), and all
other obligations of the Issuer to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, the same will be
promptly paid in full when due in accordance with the terms of the extension or
renewal, whether at Stated Maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Guarantor, if any, agrees that this is a guarantee of payment
and not a guarantee of collection.


 


(b)      Any Guarantors hereby agree
that, to the maximum extent permitted under applicable law, their obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuer,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.  Subject to Section 6.06, each Guarantor,
if any, hereby waives diligence, presentment, demand of payment, filing of
claims with a


 


79





















 


court
in the event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest, notice and all demands whatsoever
and covenants that this Guarantee of the Notes shall not be discharged except
by complete performance of the obligations contained in the Notes and this Indenture.


 


(c)      If any Holder or the Trustee
is required by any court or otherwise to return to the Issuer, the Guarantors,
if any, or any custodian, trustee, liquidator or other similar official acting
in relation to the Issuer or any Guarantors, any amount paid by any of them to
the Trustee or such Holder, this Guarantee of the Notes, to the extent
theretofore discharged, shall be reinstated in full force and effect.


 


(d)      Each Guarantor, if any,
agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby. Each Guarantor, if any, further
agrees that, as between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six for the
purposes of this Guarantee of the Note, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration
of such obligations as provided in Article Six hereof, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Guarantee of the Note.  The Guarantors, if any shall have the right
to seek contribution from any non-paying Guarantor so long as the exercise of
such right does not impair the rights of the Holders under the Guarantee of the
Note.


 


Section 10.02.        Limitation on Guarantor
Liability.


 


Each Guarantor, if any, and by its acceptance of
Notes, each Holder, hereby confirms that it is the intention of all such
parties that the Guarantee of the Note of such Guarantor not constitute (i) a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law to the extent applicable to its Guarantee of the Note or (ii) an
unlawful distribution under any applicable state law prohibiting shareholder
distributions by an insolvent subsidiary to the extent applicable to its
Guarantee of the Note.  To effectuate the
foregoing intention, the Trustee, the Holders and the Guarantors, if any,
hereby irrevocably agree that the obligations of such Guarantor will be limited
to the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article Ten, result in the
obligations of such Guarantor under its Guarantee of the Note not constituting
a fraudulent transfer or conveyance or such an unlawful distribution.


 


Section 10.03.        Execution and Delivery of
Note Guarantee.


 


(a)      If an Officer whose
signature is on this Indenture no longer holds that office at the time the Trustee
authenticates the Note, the Guarantee of the Note shall be valid nevertheless.


 


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


 


80





















 


(c)      If required by Section 4.18,
the Issuer shall cause such Subsidiaries to execute supplemental indentures to
this Indenture and Guarantees of the Notes in accordance with Section 4.18
and this Article Ten, to the extent applicable.


 


Section 10.04.        Guarantors May Consolidate,
Etc., on Certain Terms.


 


(a)      A Guarantor (other than the
Issuer) may not sell or otherwise dispose of all or substantially all of its
assets to, or consolidate with or merge with or into (whether or not such Guarantor
is the surviving Person), another Person, other than the Issuer or another
Guarantor, unless:


 


(i)       immediately after giving
effect to that transaction, no Default or Event of Default exists; and


 


(ii)       either:


 


(A)          the Person acquiring the
property in any such sale or disposition or the Person formed by or surviving
any such consolidation or merger (if other than the Guarantor) is organized or
existing under the laws of the United States, any state thereof or the District
of Columbia and assumes all the obligations of that Guarantor under this Indenture
and its Guarantee of the Notes pursuant to a supplemental indenture
satisfactory to the Trustee; or


 


(B)           such sale or other
disposition or consolidation or merger complies with Section 4.10.


 


(b)      In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Guarantee of the Notes
and the due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by a Guarantor, such successor Person shall
succeed to and be substituted for a Guarantor with the same effect as if it had
been named herein as a Guarantor.  All
the Guarantees of the Notes so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Guarantees of the Notes
theretofore and thereafter issued in accordance with the terms of this
Indenture as though all of such Guarantees of the Notes had been issued at the
date of the execution hereof.


 


(c)      Except as set forth in Article Five,
and notwithstanding clauses (i) and (ii) of Section 10.04(a),
nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of any Guarantor with or into the Issuer or another
Guarantor, or shall prevent any sale or conveyance of the property of any
Guarantor as an entirety or substantially as an entirety to the Issuer or another
Guarantor.


 


Section 10.05.        Release of Guarantor.


 


(a)      The Guarantee of the Note of
any Guarantor (other than (x) the Issuer and (y) any Subsidiary of
the Issuer that owns Equity Interests in the Issuer) shall be released:


 


(i)       in connection with any
transaction permitted by this Indenture after which such Guarantor would no
longer constitute a Restricted Subsidiary of the Issuer, if the sale of Capital
Stock, if any, complies with Section 4.10;


 


81





















 


(ii)       if the Issuer properly
designates any Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary under this Indenture;


 


(iii)       upon
satisfaction and discharge of the Notes as set forth under Section 11.01
or upon defeasance of the Notes as set forth under Article 8; or


 


(iv)       solely in the case of a
Guarantee of the Note created pursuant to Section 4.18, upon the release
or discharge of the Guarantee which resulted in the creation of such Guarantee
of the Note pursuant to this Section 4.18, except a discharge or release
by or as a result of payment under such Guarantee.


 


(b)      Any Guarantor not released
from its obligations under its Guarantee of the Note shall remain liable for
the full amount of principal (including any Capitalized Interest) of and
interest on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article Ten.


 


ARTICLE ELEVEN

SATISFACTION AND DISCHARGE


 


Section 11.01.        Satisfaction and Discharge.


 


(a)      This Indenture shall be
discharged and shall cease to be of further effect as to all Notes issued
hereunder, when:


 


(i)       either:


 


(A)          all Notes that have been
authenticated (except lost, stolen or destroyed Notes that have been replaced
or paid and Notes for whose payment money has theretofore been deposited in
trust and thereafter repaid to the Issuer) have been delivered to the Trustee
for cancellation; or


 


(B)           all Notes that have not been
delivered to the Trustee for cancellation have become due and payable by reason
of the mailing of a notice of redemption or otherwise or will become due and
payable within one year and the Issuer or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in 
dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient without consideration of any reinvestment
of interest, to pay and discharge the entire indebtedness on the Notes not
delivered to the Trustee for cancellation for principal (including any
Capitalized Interest), premium, if any, and accrued interest to the date of
maturity or redemption;


 


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


 


(iii)       the Issuer has
delivered irrevocable instructions to the Trustee under this Indenture to apply
the deposited money toward the payment of the Notes at maturity or the redemption
date, as the case may be.


 


82





















 


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


 


(c)      Notwithstanding the above,
the Trustee shall pay to the Issuer from time to time upon their request any
cash or Government Securities held by it as provided in this Section 11.01
which, in the opinion of a nationally recognized investment bank, appraisal
firm or firm of independent public accountants expressed in a written
certification delivered to the Trustee, are in excess of the amount thereof
that would then be required to be deposited to effect a satisfaction and
discharge under this Article Eleven.


 


(d)      After the conditions to
discharge contained in this Article Eleven have been satisfied, and the
Issuer has paid or caused to be paid all other sums payable hereunder by the
Issuer, and delivered to the Trustee an Officers’ Certificate and Opinion of
Counsel, each stating that all conditions precedent to satisfaction and
discharge have been satisfied, the Trustee upon written request shall acknowledge
in writing the discharge of the obligations of the Issuer and the Guarantors,
if any, under this Indenture (except for any obligations hereunder that by the
terms of such obligation expressly survive discharge of the Notes in accordance
with this Section 11.01).


 


Section 11.02.            Deposited Money
and Government Securities To Be Held in Trust; Other Miscellaneous Provisions.


 


Subject to Section 11.03 hereof, all money and
non-callable Government Securities (including the proceeds thereof) deposited
with the Trustee pursuant to Section 11.01 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal
(including any Capitalized Interest), premium, if any and interest but such
money need not be segregated from other funds except to the extent required by
law.


 


Section 11.03.        Repayment to the Issuer.


 


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


 


83

















 


ARTICLE TWELVE

MISCELLANEOUS


 


Section 12.01.        Trust Indenture Act Controls.


 


If any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by TIA Section 318(c), the imposed
duties shall control.


 


Section 12.02.        Notices.


 


(a)      Any notice or communication
by the Issuer or any Guarantor, on the one hand, or the Trustee on the other
hand, to the other is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others’ address:


 


If to the Issuer and/or any Guarantor:


 


FairPoint
Communications, Inc.


521 East Morehead Street


Suite 500


Charlotte,
North Carolina 28202


Attention:
General Counsel


Facsimile:
(704) 344-1594


 


With
a copy to:


 


Paul,
Hastings, Janofsky & Walker LLP


75
East 55th Street


New
York, New York 10022


Attention:
Jeffrey J. Pellegrino


Facimile:
(212) 230-7697


 


If to the Trustee:


 


U.S.
Bank National Association

60 Livingston Avenue

EP-MN-WS3C

St. Paul, MN 55107-2292


Facimile:
(651) 495-8097


Attention:
Rick Prokosch


 


(b)      The Issuer or the Trustee,
by notice to the others may designate additional or different addresses for
subsequent notices or communications.


 


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


 


84





















 


(d)      Any notice or communication
to a Holder shall be mailed by first class mail, certified or registered,
return receipt requested, or by overnight air courier guaranteeing next
Business Day delivery to its address shown on the register kept by the
Registrar.  Any notice or communication
shall also be so mailed to any Person described in TIA Section 313(c), to
the extent required by the TIA.  Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.


 


(e)      Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance on such waiver.


 


(f)       In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.


 


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


 


(h)      If the Issuer mails a notice
or communication to Holders, it shall mail a copy to the Trustee and each Agent
at the same time.


 


Section 12.03.        Communication by Holders of
Notes with Other Holders of Notes.


 


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


 


Section 12.04.        Certificate and Opinion as
to Conditions Precedent.


 


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


 


(i)       an Officers’ Certificate
(which shall include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and


 


(ii)       an Opinion of Counsel (which
shall include the statements set forth in Section 12.05 hereof) stating
that, in the opinion of such counsel (who may rely upon an Officers’ Certificate
or certificates of public officials as to matters of fact), all such conditions
precedent and covenants have been satisfied.


 


Section 12.05.        Statements Required in
Certificate or Opinion.


 


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


 


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


 


85




















 


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


 


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


 


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


 


Section 12.06.                       Rules by
Trustee and Agents.


 


The Trustee
may make reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions.


 


Section 12.07.                       No
Personal Liability of Directors, Officers, Employees and Stockholders.


 


No director, officer, employee, incorporator,
stockholder, member, manager or partner of the Issuer shall have any liability
for any obligations of the Issuer or the Guarantors, if any, under the Notes,
this Indenture, any Guarantees of the Notes or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder of Notes by accepting a Note
waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Notes.  The waiver may not be effective
to waive liabilities under the federal securities laws.


 


Section 12.08.                       Governing
Law.


 


THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES, IF ANY.


 


Section 12.09.                       Consent
to Jurisdiction.


 


Any legal suit, action or proceeding arising
out of or based upon this Indenture or the transactions contemplated hereby (“Related
Proceedings”) may be instituted in the federal courts of the United States
of America located in the City of New York or the courts of the State of New
York in each case located in the City of New York (collectively, the “Specified
Courts”), and each party irrevocably submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding.  Service of any process, summons, notice or
document by mail (to the extent allowed under any applicable statute or rule of
court) to such party’s address set forth above shall be effective service of
process for any suit, action or other proceeding brought in any such
court.  The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action
or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court has been brought in an
inconvenient forum.


 


Section 12.10.                       No
Adverse Interpretation of Other Agreements.


 


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


 


86

















 


Section 12.11.                       Successors.


 


All agreements of the Issuer in this
Indenture and the Notes shall bind its successors and assigns.  All agreements of the Trustee in this
Indenture shall bind its successors and assigns.  All agreements of each Guarantor, if any, in
this Indenture shall bind such Guarantor’s successors and assigns, except as
otherwise provided in Section 10.04.


 


Section 12.12.                       Severability.


 


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


 


Section 12.13.                       Counterpart
Originals.


 


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


 


Section 12.14.                       Acts of
Holders.


 


(a)      Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by the Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agents duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Issuer.  Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Issuer if made in
the manner provided in this Section 12.14.


 


(b)      The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to such witness, notary or officer the
execution thereof.  Where such execution
is by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.  The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.


 


(c)      Notwithstanding
anything to the contrary contained in this Section 12.14, the principal
amount and serial numbers of Notes held by any Holder, and the date of holding
the same, shall be proved by the register of the Notes maintained by the
Registrar as provided in Section 2.04.


 


(d)      If
the Issuer shall solicit from the Holders any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Issuer may, at its option, by or pursuant
to a Board of Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Issuer shall have no obligation
to do so. Notwithstanding TIA Section 316(c), such record date shall be
the record date specified in or pursuant to such resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith or the date of the most recent list
of


 


87





















 


Holders forwarded to the Trustee prior to such solicitation pursuant to
Section 2.06 and not later than the date such solicitation is
completed.  If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of the then outstanding Notes have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the then outstanding Notes shall be computed as
of such record date; provided that
no such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than eleven months after the record
date.


 


(e)      Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Note shall bind every future Holder of the same Note and
the Holder of every Note issued upon the registration or transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Issuer in reliance thereon, whether
or not notation of such action is made upon such Note.


 


(f)       Without
limiting the foregoing, a Holder entitled hereunder to take any action
hereunder with regard to any particular Note may do so itself with regard to
all or any part of the principal amount of such Note or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.


 


Section 12.15.                       Benefit
of Indenture.


 


Nothing in this Indenture or the Notes,
express or implied, shall give to any Person, other than the parties hereto, any
Paying Agent, any Registrar and its successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.


 


Section 12.16.                       Table of
Contents, Headings, Etc.


 


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


 


88

















 


IN WITNESS WHEREOF, the parties have executed
this Indenture as of July 29, 2009.


 


[SIGNATURE PAGES FOLLOW]


 


89

















 


	
   

  	
  FAIRPOINT COMMUNICATIONS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Alfred C. Giammarino

  
	
   

  	
   

  	
  Name:  Alfred C. Giammarino

  
	
   

  	
   

  	
  Title:  Executive Vice
  President and Chief Financial Officer

  



 

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Prokosch

  
	
   

  	
   

  	
  Name:  Richard Prokosch

  
	
   

  	
   

  	
  Title:  Vice President

  



 






 












 


EXHIBIT A


 


[Face of Note]


 


[Insert the Global Note Legend, if
applicable, pursuant to the provisions of the Indenture]


 


[Insert the Private Placement Legend, if
applicable, pursuant to the provisions of the Indenture]


 


[Insert the Regulation S Global Note Legend,
if applicable, pursuant to the provisions of the Indenture]


 


CUSIP NO.
305560 AL8


 


	
  No.

  	
  **$                  **

  



 


FAIRPOINT COMMUNICATIONS, INC.


 


131/8% Senior
Notes due 2018


 


Issue Date:


 


FairPoint Communications, Inc., a
Delaware corporation (the “Issuer,” which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to CEDE & CO., or its registered assigns,
the principal sum of
$[                      ],
plus any interest which is capitalized to the principal amount of this Note in
accordance with paragraph 1 of this Note, on April 2, 2018.


 


Interest Payment Dates:  April 1 and October 1, commencing October 1,
2009.


 


Record Dates: 
March 15 and September 15.


 


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


 


[SIGNATURE PAGE FOLLOWS]


 


A-1

















 


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


 


	
   

  	
  FAIRPOINT COMMUNICATIONS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


A-2

















 


(Trustee’s
Certificate of Authentication)


 


This is one of the 131/8% Senior Notes due 2018 described in the
within-mentioned Indenture.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. Bank National Association, as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
  [Reverse Side of Note]

  



 


A-3

















 


FAIRPOINT
COMMUNICATIONS, INC.


 


131/8% Senior Notes due 2018


 


Capitalized terms used herein shall have the
meanings assigned to them in the Indenture referred to below unless otherwise
indicated.


 


1.             Interest.  The Issuer promises to pay interest on the
principal amount of this Note at 131/8%
per annum from the date hereof until maturity; provided,
however, that for the period from the
Issue Date through and including September 30, 2009, the Issuer promises
to pay interest on the principal amount of this Note at 15% per annum.  The Issuer shall pay interest in immediately
available funds semi-annually in arrears on April 1 and October 1 of
each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each an “Interest Payment Date”); provided,
however that the interest due on this
Note on the October 1, 2009 Interest Payment Date will be payable, at the
Issuer’s option, in immediately available funds, by capitalizing such accrued
and unpaid interest to the principal of the Notes by adding an amount equal to
such accrued and unpaid interest being capitalized to the principal amount of
each Note then outstanding (interest so capitalized, “Capitalized Interest”),
or a combination of both immediately available funds and Capitalized
Interest.  Notwithstanding the foregoing,
to the extent the Issuer pays the interest payable on the Existing Notes on October 1,
2009 in the form of immediately available funds, then the Issuer promises to
pay, at the Issuer’s option, either (i) interest on this Note in
immediately available funds at 131/8% per annum for the period from
the Issue Date through and including September 30, 2009, or (ii) interest
on this Note in the form of Capitalized Interest at 17% per annum for the period
from the Issue Date through and including September 30, 2009. Following an
increase in the principal amount of this Note as a result of Capitalized
Interest, this Note will bear interest on such increased principal amount from
and after the date of such interest payment date.  The Capitalized Interest shall result in
increases in the principal amount of this Note by an amount equal to the
interest payable rounded up to the next whole $1.00. Interest on this Note
shall accrue from the most recent date to which interest has been paid or, if
no interest has been paid, from the date of original issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred
to on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; provided  further that
the first Interest Payment Date shall be October 1, 2009.  The Issuer shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal (including any Capitalized Interest) from time to time on demand at a
rate that is 2% per annum in excess of the rate then in effect; they shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful.  Interest shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.  The interest rate on the Notes will in no
event be higher than the maximum rate permitted by New York law as the same may
be modified by United States law of general application.


 


2.             Method
of Payment.  The Issuer shall pay
interest on the Notes (except defaulted interest) to the Persons who are
registered Holders of Notes at the close of business on the record date
immediately preceding the Interest Payment Date, even if this Note is canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.13 of the Indenture with respect to defaulted
interest.  If a Holder has given wire
transfer instructions to the Issuer, the Issuer shall pay all principal
(including any Capitalized Interest), interest and premium, if any, on that
Holder’s Notes in accordance with those instructions; provided that
Capitalized Interest shall be considered paid on the date due if the principal
of each Note then outstanding is increased in an amount equal to the applicable
amount of the Capitalized Interest.  All
other payments on Notes shall be made at the office or agency of the Paying
Agent and Registrar within the City and State of New York unless the Issuer
elects to make interest payments by check mailed to the Holders at their
addresses set forth in the register of Holders; 


 


A-4

















 


provided that
Capitalized Interest shall be considered paid on the date due if the principal
of each Note then outstanding is increased in an amount equal to the applicable
amount of the Capitalized Interest. 
Subject to the foregoing with respect to Capitalized Interest, such
payment of interest in immediately available funds shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.


 


Any payments of principal (including any
Capitalized Interest) of this Note prior to Stated Maturity shall be binding
upon all future Holders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof, whether or not
noted hereon.  The amount due and payable
at the maturity of this Note shall be payable only upon presentation and surrender
of this Note at an office of the Trustee or the Trustee’s agent appointed for
such purposes.


 


3.             Paying
Agent and Registrar.  Initially, the
Trustee under the Indenture shall act as Paying Agent and Registrar.  The Issuer may change any Paying Agent or
Registrar without prior notice to any Holder. 
The Issuer or any of its Subsidiaries may act in any such capacity.


 


4.             Indenture. 
The Issuer issued the Notes under an Indenture dated as of July 29,
2009 (“Indenture”) between the Issuer and
the Trustee.  The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended. 
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms.  To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling.


 


5.             Optional
Redemption.  Except as set forth in
paragraph 5(b) and (c) below, the Issuer shall not have the option to
redeem the Notes prior to April 1, 2013. 
On or after April 1, 2013, the Issuer may redeem all or part of the
Notes (including any Capitalized Interest paid thereon) upon not less than 30
nor more than 60 days’ notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on April 1 of the years indicated below:


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2013

  	
   

  	
  106.563

  	
  %

  
	
  2014

  	
   

  	
  104.375

  	
  %

  
	
  2015

  	
   

  	
  102.188

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


6.             Repurchase
at Option of Holder.


 


(a)           If
a Change of Control occurs, each Holder of Notes shall have the right to require
the Issuer to repurchase all or any part (equal to $1.00 or an integral
multiple of $1.00 in excess thereof) of that Holder’s Notes pursuant to an
offer by the Issuer (a  “Change of
Control Offer”) at an offer price (a 
“Change Of Control Payment”) in cash equal to not less than 101%
of the aggregate principal amount (including any Capitalized Interest) of the
Notes repurchased plus accrued and unpaid interest thereon to the date of repurchase.  No later than 30 days following any Change of
Control, the Issuer shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Notes on a date (the “Change Of Control Payment Date”)
specified in such notice, which shall be no earlier than 30 days and no later
than 60 days from the date such notice is mailed, pursuant to the procedures
required by the Indenture and described in such notice.


 


(b)           Within
365 days after the receipt of any Net Proceeds from an Asset Sale, the Issuer
or Restricted Subsidiary of the Issuer, as applicable, may apply such Net Proceeds
at its option:  to 


 


A-5

















 


repay (A) Indebtedness
ranking pari passu with the Notes that is
secured by assets of the Issuer or its Restricted Subsidiaries (to the extent
of the value of the assets securing such Indebtedness), (B) Obligations
under the Credit Agreement or (C) Indebtedness of the Issuer’s Restricted
Subsidiaries); or to purchase Replacement Assets.  Pending the final application of any such Net
Proceeds, the Issuer or such Restricted Subsidiary may temporarily reduce
revolving credit borrowings or otherwise invest such Net Proceeds in any manner
that is not prohibited by the Indenture.


 


On the 366th day after an Asset Sale or such
earlier date, if any, as the Issuer determines not to apply the Net Proceeds
relating to such Asset Sale as set forth in Section 4.10(b) (each
such date being referred as an “Excess Proceeds Trigger Date”), such
aggregate amount of Net Proceeds that has not been applied on or before the
Excess Proceeds Trigger Date as permitted pursuant to Section 4.10(b) (“Excess
Proceeds”) shall be applied by the Issuer to make an offer (an “Asset
Sale Offer”) to all Holders of Notes and all holders of other Indebtedness
that is pari passu with the Notes or any
Guarantee of the Notes containing provisions similar to those set forth in this
Indenture with respect to offers to purchase with the proceeds of sales of
assets, to purchase the maximum principal amount (including any Capitalized
Interest) of Notes and such other pari passu
Indebtedness that may be purchased out of the Excess Proceeds.  The offer price in any Asset Sale Offer shall
be equal to 100% of the principal amount (including any Capitalized Interest)
of the Notes and such other pari passu
Indebtedness plus accrued and unpaid interest thereon to the date of purchase,
and shall be payable in cash.  The Issuer
may defer the Asset Sale Offer until there are aggregate unutilized Excess
Proceeds equal to or in excess of $25.0 million resulting from one or more
Asset Sales, at which time the entire unutilized amount of Excess Proceeds (not
only the amount in excess of $25.0 million) shall be applied as provided in Section 4.10(c) of
the Indenture.  If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Issuer and its Restricted Subsidiaries
may use such Excess Proceeds for any purpose not otherwise prohibited by this
Indenture.  If the aggregate principal
amount (including any Capitalized Interest) of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata
basis based on the principal amount (including any Capitalized Interest) of
Notes and such other pari passu
Indebtedness tendered.  Upon completion
of each Asset Sale Offer, the Excess Proceeds subject to such Asset Sale shall
no longer be deemed to be Excess Proceeds.


 


7.             Denominations,
Transfer, Exchange.  The Notes are in
registered form without coupons in minimum denominations of $1.00 and integral
multiples of $1.00 in excess thereof. 
The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture.  The Registrar
and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuer may require a
Holder to pay any taxes and fees required by law or permitted by the
Indenture.  The Issuer is not required to
transfer or exchange any Note selected for redemption.  Also, the Issuer is not required to transfer
or exchange any Note (1) for a period of 15 days before the mailing of a
notice of redemption of Notes to be redeemed or (2) tendered and not
withdrawn in connection with a Change of Control Offer or an Asset Sale
Offer.  Transfer may be restricted as provided
in the Indenture.


 


8.             Persons
Deemed Owners.  The registered Holder
of a Note will be treated as its owner for all purposes.


 


9.             Amendment,
Supplement and Waiver.  Subject to
certain exceptions, the Indenture, or the Notes may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount
(including any Capitalized Interest) of the Notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Notes), and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount (including any
Capitalized Interest)


 


A-6

















 


of the then
outstanding Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for,
Notes).  Without the consent of any
Holder of a Note, the Indenture, or the Notes may be amended or supplemented
to, among other things, cure any ambiguity, mistake, defect or inconsistency,
or make any change that does not materially adversely affect the legal rights
under the Indenture of any such Holder.


 


10.           Defaults
and Remedies.  In the case of an
Event of Default arising from certain events of bankruptcy or insolvency with
respect to (i) the Issuer or (ii) any Significant Subsidiary of the
Issuer (or any Restricted Subsidiaries that together would constitute a
Significant Subsidiary of the Issuer), all outstanding Notes will become due
and payable immediately without further action or notice.  If any other Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount (including any
Capitalized Interest) of the then outstanding Notes may declare all the Notes
to be due and payable immediately by notice in writing to the Issuer specifying
the Event of Default.  In the event of a
declaration of acceleration of the Notes because an Event of Default has
occurred and is continuing as a result of the acceleration of any Indebtedness
described in Section 6.01(vi) of the Indenture, the declaration of
acceleration of the Notes shall be automatically annulled if the holders of all
Indebtedness described in Section 6.01(vi) of the Indenture have
rescinded the declaration of acceleration in respect of such Indebtedness
within 30 Business Days of the date of such declaration, and if the annulment
of the acceleration of the Notes would not conflict with any judgment or decree
of a court of competent jurisdiction, and all existing Events of Default,
except non-payment of principal or interest on the Notes that became due solely
because of the acceleration of the Notes, have been cured or waived.


 


In the case of any Event of Default occurring
by reason of any willful action or inaction taken or not taken by or on behalf
of the Issuer or any of its Restricted Subsidiaries with the intention of
avoiding payment of the premium that the Issuer would have had to pay if the
Issuer then had elected to redeem the Notes pursuant to Section 3.07 of
the Indenture, an equivalent premium shall also become and be immediately due and
payable to the extent permitted by law upon the acceleration of the Notes.


 


Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. 
Subject to certain limitations, Holders of a majority in principal
amount (including any Capitalized Interest) of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders notice
of any Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if and so long as a committee
of its Responsible Officers in good faith determines that withholding the
notice is in the interests of the Holders of the Notes.  If certain conditions are satisfied, Holders
of a majority in aggregate principal amount (including any Capitalized
Interest) of the Notes then outstanding by notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture, except a continuing Default
or Event of Default in the payment of interest on, or the principal (including
any Capitalized Interest) of, the Notes.


 


11.           Trustee
Dealings with the Issuer.  The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may become a creditor of, or otherwise deal with the Issuer or any
of its Affiliates, with the same rights it would have if it were not Trustee.


 


12.           No
Recourse Against Others.  No
director, officer, employee, incorporator, stockholder, member, manager or
partner, past, present or future of the Issuer or any Guarantors shall have any
liability for any obligations of the Issuer or any Guarantors under the Notes,
this Indenture or any Guarantees of the Notes or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder of Notes by accepting a Note
waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Notes.  The waiver may not be effective
to waive liabilities under the federal securities laws.


 


A-7

















 


13.           Authentication.  This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


14.           CUSIP
Numbers.  Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and
the Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders.  No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.


 


15.           Copies
of Documents.  The Issuer shall
furnish to any Holder upon written request and without charge a copy of the
Indenture.  Requests may be made to:


 


FairPoint Communications, Inc.


521 East Morehead Street


Suite 500


Charlotte, North Carolina 28202


Attention: 
General Counsel


Telephone: 
(704) 344-8150


 


With a copy to:


 


Paul, Hastings, Janofsky & Walker
LLP


75 East 55th Street


New York, New York 10022


Attention: Jeffrey J. Pellegrino


Fascimile No.: (212) 230-7697


 


A-8

















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form below:


 


	
  (I) or (we) assign and transfer this Note to:

  	
   

  	
   

  
	
   

  	
  (INSERT ASSIGNEE’S LEGAL NAME)

  
	
   

  
	
   

  
	
  (Insert assignee’s soc. sec. or tax
  I.D.  no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type assignee’s name, address and
  zip code)

  
	
   

  
	
  and irrevocably appoint

  	
   

  
	
  to transfer this Note on the books of the Issuer.  The agent may substitute another to act for
  him.

  
				



 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name

  
	
   

  	
   

  	
  appears on the face of this Note)

  
	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  
							



 






* Participant in a recognized
Signature Guarantee Medallion Program (or other signature guarantor acceptable
to the Trustee).


 


A-9

















 


OPTION OF
HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note
purchased by the Issuer pursuant to Section 4.10 or 4.14 of the Indenture,
check the appropriate box below:


 


	
  o Section 4.10

  	
  o Section 4.14

  



 


If you want to elect to have only part of the
Note purchased by the Issuer pursuant to Section 4.10 or Section 4.14
of the Indenture, state the amount you elect to have purchased:


 


	
  $

  	
   

  	
   

  



 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name

  
	
   

  	
   

  	
  appears on the face of this Note)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tax Identification No.:

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  
										



 






* Participant in a recognized
Signature Guarantee Medallion Program (or other signature guarantor acceptable
to the Trustee).


 


A-10

















 


[TO BE
INSERTED FOR RULE 144A GLOBAL NOTE]


 


SCHEDULE OF
EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


The following exchanges of a part of this
Global Note for an interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global Note or Definitive Note for an interest
in this Global Note, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of

  Decrease in

  Principal Amount

  at Maturity of this

  Global Note

  	
   

  	
  Amount of

  Increase in

  Principal Amount

  at Maturity of this

  Global Note

  	
   

  	
  Principal Amount

  at Maturity of this

  Global Note

  Following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  Authorized

  Signatory of

  Trustee or

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


[TO BE
INSERTED FOR ACCREDITED INVESTOR GLOBAL NOTE]


 


SCHEDULE OF
EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


The following exchanges of a part of this
Global Note for an interest in another Global Note or for a Definitive Note:


 


	
  Date of Exchange

  	
   

  	
  Amount of

  Decrease in

  Principal Amount

  at Maturity of this

  Global Note

  	
   

  	
  Amount of

  Increase in

  Principal Amount

  at Maturity of this

  Global Note

  	
   

  	
  Principal Amount

  at Maturity of this

  Global Note

  Following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  Authorized

  Signatory of

  Trustee or

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


[TO BE
INSERTED FOR REGULATION S GLOBAL NOTE]


 


SCHEDULE OF
EXCHANGES OF REGULATION S GLOBAL NOTE


 


The following exchanges of a part of this
Regulation S Global Note for an interest in another Global Note or of other
Restricted Global Notes for an interest in this Regulation S Global Note, have
been made:


 


A-11

















 


	
  Date of Exchange

  	
   

  	
  Amount of

  Decrease in

  Principal Amount

  at Maturity of this

  Global Note

  	
   

  	
  Amount of

  Increase in

  Principal Amount

  at Maturity of this

  Global Note

  	
   

  	
  Principal Amount

  at Maturity of this

  Global Note

  Following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  Authorized

  Signatory of

  Trustee or

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-12






 












 


EXHIBIT B


 


FORM OF CERTIFICATE OF
TRANSFER


 


FairPoint
Communications, Inc.


521 East Morehead Street


Suite 500


Charlotte, North Carolina 28202


Facimile:


Attention:
Chief Financial Officer


 


U.S.
Bank National Association


60
Livingston Avenue


EP-MN-WS3C


St.
Paul, MN 55107-2292


Facimile: (651) 495-8097


Attention: Richard Prokosch


 


Re: 131/8% Senior Notes due 2018


 


Reference is hereby made to the Indenture, dated as
of July 29, 2009 (the “Indenture”),
between FairPoint Communications, Inc., a Delaware corporation (the “Issuer”), and U.S. Bank National Association,
as trustee.  Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.


 


                                      
(the “Transferor”) owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount at maturity of
$                      
in such Note[s] or interests (the “Transfer”),
to
                                                      
(the  “Transferee”),
as further specified in Annex A hereto. 
In connection with the Transfer, the Transferor hereby certifies that:


 


[CHECK
ALL THAT APPLY]


 


o 1.        Check if Transferee will take
delivery of a beneficial interest in the 144A Global Note or a Definitive Note Pursuant
to Rule 144A.  The Transfer is
being effected pursuant to and in accordance with Rule 144A under the
Securities Act of 1933, as amended (the  “Securities
Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that
the Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each such account is a “qualified institutional buyer” within
the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A
and such Transfer is in compliance with any applicable blue sky securities laws
of any state of the United States.  Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.


 


o 2.        Check if Transferee will take
delivery of a beneficial interest in a Legended Regulation S Global Note, or a
Definitive Note pursuant to Regulation S. 
The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and, accordingly, the


 


B-1

















 


Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or
through the facilities of a designated offshore securities market and neither
such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) the transfer is not being made
to a  Person or for the account or
benefit of a  Person.  Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Legended Regulation S Global
Note and/or the Definitive Note and in the Indenture and the Securities Act.


 


o 3.        Check and complete if Transferee will
take delivery of a Restricted Definitive Note pursuant to any provision of the
Securities Act other than Rule 144, Rule 144A or Regulation S.  The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted
Global Notes and Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act and any applicable blue sky securities laws of any
state of the United States, and accordingly the Transferor hereby further
certifies that (check one):


 


o (a)      such Transfer is being effected to the
Issuer or a subsidiary thereof; or


 


o (b)      such Transfer is being effected to an
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities
Act and the Transfer complies with the transfer restrictions applicable to
Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the Transferee
in the form of Exhibit D to the Indenture and (2) an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act.  Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Definitive Notes and in the Indenture and the Securities
Act.


 


4.             Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.


 


o (a)      Check if Transfer is Pursuant to Rule 144.  (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


o (b)      Check if Transfer is Pursuant to
Regulation S.  (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state


 


B-2

















 


of the United States and, in
the case of a transfer from a Restricted Global Note or a Restricted Definitive
Note, the Transferor hereby further certifies that (a) the Transfer is not
being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction
was executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (b) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act, (c) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act and (d) the
transfer is not being made to a  Person
or for the account or benefit of a 
Person, and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


o (c)      Check if Transfer is Pursuant to Other
Exemption.  (i) The Transfer is
being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903
or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.


 


This certificate and the statements contained herein
are made for your benefit and the benefit of the Issuer.


 


	
   

  	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


B-3

















 


ANNEX A TO CERTIFICATE OF
TRANSFER


 


1.             The
Transferor owns and proposes to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


o   (a)    a
beneficial interest in the:


 


(i)             144A Global Note (CUSIP
                    );
or


 


(ii)            Accredited Investor Global Note (CUSIP
                      );
or


 


(iii)           Regulation S Global Note (CUSIP
                    );
or


 


o   (b)    a
Restricted Definitive Note.


 


2.             After
the Transfer the Transferee will hold:


 


[CHECK ONE]


 


o   (a)    a
beneficial interest in the:


 


(i)             144A Global Note (CUSIP
                    );
or


 


(ii)            Regulation S Global Note (CUSIP
                    );
or


 


(iii)           Unrestricted Global Note (CUSIP
                    );
or


 


o   (b)    a
Restricted Definitive Note; or


 


o   (c)    an
Unrestricted Definitive Note, in accordance with the terms of the Indenture.


 


B-4






 












 


EXHIBIT C


 


FORM OF CERTIFICATE OF
EXCHANGE


 


FairPoint
Communications, Inc.


521 East Morehead Street


Suite 500


Charlotte, North Carolina 28202


Facimile:


Attention:
Chief Financial Officer


 


U.S.
Bank National Association


60
Livingston Avenue


EP-MN-WS3C


St.
Paul, MN 55107-2292


Facsimile:


 


Re:  131/8% Senior Notes due 2018


 


Reference is hereby made to the Indenture, dated as
of July 29, 2009 (the “Indenture”),
between FairPoint Communications, Inc., a Delaware corporation, (the “Issuer”) and U.S. Bank National Association,
as trustee.  Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.


 


(the “Owner”) owns and proposes to exchange the Note[s] or interest in
such Note[s] specified herein, in the principal amount at maturity of
$                        
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.             Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted
Global Note


 


o (a)      Check if Exchange is from beneficial
interest in a Restricted Global Note to beneficial interest in an Unrestricted
Global Note.  In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note for a
beneficial interest in an Unrestricted Global Note in an equal principal amount
at maturity, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the “Securities Act”),
(iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


o (b)      Check if Exchange is from beneficial
interest in a Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities


 


C-1

















 


Act and (iv) the
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


o (c)      Check if Exchange is from Restricted
Definitive Note to beneficial interest in an Unrestricted Global Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


o (d)      Check if Exchange is from Restricted
Definitive Note to Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


2.             Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes


 


o (a)      Check if Exchange is from beneficial
interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount at maturity, the Owner hereby certifies
that the Restricted Definitive Note is being acquired for the Owner’s own
account without transfer.  Upon
consummation of the proposed Exchange in accordance with the terms of the Indenture,
the Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Note and in the Indenture and the Securities Act.


 


o (b)      Check if Exchange is from Restricted
Definitive Note to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CHECK ONE]:


 


o            144A Global Note


 


o            Regulation S Global Note


 


with an equal principal amount at maturity,
the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer and (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any
state of the United States.  Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.


 


C-2

















 


This certificate and the statements contained herein
are made for your benefit and the benefit of the Issuer.


 


	
   

  	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
							



 


C-3






 












 


EXHIBIT D


 


FORM OF CERTIFICATE FROM

ACQUIRING ACCREDITED INVESTOR


 


FairPoint
Communications, Inc.


521 East Morehead Street


Suite 500


Charlotte, North Carolina 28202


Facimile:


Attention:
Chief Financial Officer


 


U.S.
Bank National Association


60
Livingston Avenue


EP-MN-WS3C


St.
Paul, MN 55107-2292


Facimile:


Attention:


 


Re:  131/8% Senior Notes due 2018


 


Reference is hereby made to the Indenture, dated as
of July 29, 2009 (the “Indenture”),
between FairPoint Communications, Inc., a Delaware corporation, (the “Issuer”), and U.S. Bank National Association,
as trustee (the “Trustee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


 


In connection with our proposed purchase of
$                        
aggregate principal amount of:


 


(a)           o   beneficial interest in a Global Note, or


 


(b)           o   a Definitive Note,


 


we confirm that:


 


1.             We
understand that any subsequent transfer of the Notes or any interest therein is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the “Securities
Act”).


 


2.             We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we should
sell the Notes or any interest therein, we shall do so only (A) to the
Issuer or any subsidiary thereof, (B) in accordance with Rule 144A
under the Securities Act to a “qualified institutional buyer” (as defined
therein), (C) outside the United States in accordance with Rule 904
of Regulation S under the Securities Act, (D) pursuant to the provisions
of Rule 144(b)(1) under the Securities Act or (E) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest
in a Global 


 


D-1

















 


Note from us in a
transaction meeting the requirements of clauses (A) through (D) of
this paragraph a notice advising such purchaser that resales thereof are restricted
as stated herein.


 


3.             We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Issuer such
certifications, legal opinions and other information as you and the Issuer may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions.  We further
understand that the Notes purchased by us will bear a legend to the foregoing effect.


 


4.             We
are an “accredited investor” (as defined in Rule 501(a) of Regulation
D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are acting are
each able to bear the economic risk of our or its investment.


 


5.             We
are acquiring the Notes or beneficial interest therein purchased by us for our
own account or for one or more accounts (each of which is an “accredited
investor”) as to each of which we exercise sole investment discretion.


 


The Trustee and the Issuer are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [Insert
  Name of Accredited Investor]

  
	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
							



 


D-2






 












 


EXHIBIT E


 


FORM OF SUPPLEMENTAL
INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS


 


Supplemental Indenture (this “Supplemental
Indenture”), dated as of
                          ,
among                                     
(the “Guaranteeing Subsidiary”), a subsidiary of
[                     ],
a Delaware corporation (or its permitted successor) (the “Company”),
[                           ],
a Delaware corporation (the “Issuer”), and
U.S. Bank National Association, a New York banking corporation (or its permitted
successor), as trustee under the Indenture referred to below (the “Trustee”).


 


WITNESSETH


 


WHEREAS, the Issuer and the other Guarantors party
thereto have heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of July 29,
2009 providing for the issuance of the Issuer’s 131/8% Senior Notes due 2018 (the “Notes”);


 


WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall, subject to Article Ten of the Indenture, unconditionally guarantee
the Notes on the terms and conditions set forth therein (the “Note Guarantee”);
and


 


WHEREAS, pursuant to Section 9.01 of the Indenture,
the Trustee is authorized to execute and deliver this Supplemental Indenture.


 


NOW THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Issuer, the Guaranteeing Subsidiary and the Trustee agree as
follows for the equal and ratable benefit of the Holders of the Notes:


 


1.             Capitalized
Terms.  Capitalized terms used herein
without definition shall have the meanings assigned to them in the Indenture.


 


2.             Agreement to Guarantee.


 


(a)           Subject
to Article Ten of the Indenture, the Guaranteeing Subsidiary fully and
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or the
obligations of the Issuer hereunder or thereunder, that:


 


(i)            the
principal (including any Capitalized Interest) of, premium, if any, and
interest on the Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal (including any Capitalized Interest) 
of, premium, if any, and interest on the Notes, if lawful (subject in
all cases to any applicable grace period provided herein), and all other
obligations of the Issuer to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full, all in accordance with the terms hereof and
thereof; and


 


(ii)           in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, the same will be promptly paid in full when due in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. 
Failing payment when due of any amount so guaranteed for whatever
reason, the Guarantors shall be


 


E-1

















 


jointly and severally
obligated to pay the same immediately. 
The Guaranteeing Subsidiary agrees that this is a guarantee of payment and
not a guarantee of collection.


 


(b)           The
Guaranteeing Subsidiary hereby agrees that, to the maximum extent permitted
under applicable law, its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof,
the recovery of any judgment against the Issuer, any action to enforce the same
or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor.


 


(c)           The
Guaranteeing Subsidiary, subject to Section 6.06 of the Indenture, hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest, notice and all demands whatsoever
and covenants that this Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture.


 


(d)           If
any Holder or the Trustee is required by any court or otherwise to return to
the Issuer, the Guarantors, or any custodian, trustee, liquidator or other
similar official acting in relation to the Issuer or any Guarantor, any amount
paid by any of them to the Trustee or such Holder, this Note Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.


 


(e)           The
Guaranteeing Subsidiary agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby.


 


(f)            The
Guaranteeing Subsidiary agrees that, as between the Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Article Six
of the Indenture for the purposes of the Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article Six
of the Indenture, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantors for the purpose of the Note Guarantee.


 


(g)           The
Guaranteeing Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Note Guarantee.


 


(h)           The
Guaranteeing Subsidiary confirms, pursuant to Section 10.02 of the Indenture,
that it is the intention of such Guaranteeing Subsidiary that the Note
Guarantee not constitute (i) a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to the Note Guarantee or (ii) an unlawful distribution under
any applicable state law prohibiting shareholder distributions by an insolvent
subsidiary to the extent applicable to the Note Guarantee.  To effectuate the foregoing intention, the
Guaranteeing Subsidiary and the Trustee hereby irrevocably agree that the obligations
of the Guaranteeing Subsidiary will be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guaranteeing Subsidiary that are relevant under such laws, and after giving
effect to any collections from, rights to receive contribution from or payments
made by or on behalf of any other Guarantor in respect of the obligations of
such other Guarantor under Article Ten of the Indenture, result in the
obligations of the Guaranteeing Subsidiary under the Note Guarantee not
constituting a fraudulent transfer or conveyance or such an unlawful
shareholder distribution.


 


E-2

















 


3.             Execution
and Delivery.  The Guaranteeing
Subsidiary agrees that the Note Guarantee shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of the Note
Guarantee.


 


4.             Guaranteeing
Subsidiary May Consolidate, Etc., on Certain Terms.  The Guaranteeing Subsidiary may not sell or
otherwise dispose of all or substantially all of its assets to, or consolidate
with or merge with or into, any Person other than as set forth in Section 10.04
of the Indenture.


 


5.             Release. 
The Guaranteeing Subsidiary’s Note Guarantee shall be released as set
forth in Section 10.05 of the Indenture.


 


6.             No
Recourse Against Others.  Pursuant to
Section 12.07 of the Indenture, no director, officer, employee,
incorporator or stockholder, past, present or future of the Guaranteeing Subsidiary
shall have any liability for any obligations of the Guaranteeing Subsidiary
under the Notes, the Indenture, this Supplemental Indenture, the Note
Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation.  This waiver
and release are part of the consideration for the Note Guarantee.


 


7.             NEW
YORK LAW TO GOVERN.  THE LAWS OF THE
STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE.


 


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


 


9.             Effect
of Headings.  The Section headings
herein are for convenience only and shall not affect the construction hereof.


 


10.           Trustee. 
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or
in respect of the recitals contained herein, all of which recitals are made
solely by the Guaranteeing Subsidiary and the Company.


 


[SIGNATURE PAGE FOLLOWS]


 


E-3

















 


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


 


	
   

  	
  [NAME
  OF GUARANTEEING SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


	
   

  	
  [                                                                             ]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


	
   

  	
  [                                                                             ]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


	
   

  	
  FAIRPOINT
  COMMUNICATIONS, INC. as Issuer

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, AS TRUSTEE

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


E-4