Exhibit
4.1
CITIZENS
COMMUNICATIONS COMPANY
$400,000,000
7.875%
SENIOR NOTES DUE 2027
______________________________
INDENTURE
Dated
as
of December 22, 2006
______________________________
THE
BANK
OF NEW YORK,
as
Trustee
This
INDENTURE dated as of December 22, 2006 is by and between Citizens
Communications Company, a Delaware corporation, and The Bank of New York, as
trustee (the “
Trustee
”).
The
Company and the Trustee agree as follows for the benefit of each other and
for
the equal and ratable benefit of the Holders of the 7.875% Senior Notes due
2027
(the “
Notes
”)
issued
under this Indenture:
DEFINITIONS
AND INCORPORATION BY REFERENCE
For
all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
“
144A
Global Note
”
means
a
Global Note in the form of Exhibit A hereto bearing the Global Note Legend
and
the Private Placement Legend and deposited with and registered in the name
of
the Depositary or its nominee issued in a denomination equal to the outstanding
principal amount of the Notes sold for initial resale in reliance on Rule
144A.
“
Acquired
Indebtedness
”
means
Indebtedness of a Person existing at the time such Person becomes a Subsidiary
of the Company or Indebtedness of a Subsidiary of the Company assumed in
connection with an Asset Acquisition by such Subsidiary; provided such
Indebtedness was not Incurred in connection with or in contemplation of such
Person becoming a Subsidiary or such Asset Acquisition.
“
Additional
Notes
”
means
any Notes (other than Initial Notes, Exchange Notes and Notes issued under
Sections 2.06, 2.07, 2.10 and 9.05 hereof) issued under this Indenture in
accordance with Sections 2.02 and 2.15, as part of the same series as the
Initial Notes or as an additional series.
“
Adjusted
Treasury Rate
”
means,
with respect to any redemption date:
(1)
the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated “H.15(519)” or any successor publication which is published weekly by
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption “Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue shall
be
determined and the Adjusted Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month);
or
(2)
if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
The
Adjusted Treasury Rate shall be calculated on the third Business Day preceding
the redemption 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 the purposes of this definition, “
control
”
when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
“
controlling
”
and
“
controlled
”
have
meanings correlative to the foregoing.
“
Agent
”
means
any Registrar, co-registrar, Paying Agent or additional paying
agent.
“
Applicable
Procedures
”
means,
with respect to any transfer, redemption 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, redemption or
exchange.
“
Asset
Acquisition
”
means
(1) an investment by the Company or any of its Subsidiaries in any other
Person pursuant to which such Person shall become a Subsidiary or shall be
merged into or consolidated with the Company or any of its Subsidiaries; or
(2) an acquisition by the Company or any of its Subsidiaries of the
property and assets of any Person other than the Company or any of its
Subsidiaries that constitute substantially all of a division, operating unit
or
line of business of such Person.
“
Bankruptcy
Law
”
means
Title 11, U.S. Code or any similar federal or state law for the relief of
debtors, or the law of any other jurisdiction relating to bankruptcy,
insolvency, winding up, liquidation, reorganization or 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 such term is used in Section 13(d)(3) of the
Exchange Act, such “person” will be deemed to have beneficial ownership of all
securities that such “person” has the right to acquire by conversion or exercise
of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition.
“
Board
of Directors
”
means
either the Board of Directors of the Company or any committee of such Board
duly
authorized to act on its behalf.
“
Board
Resolution
”
means
one or more resolutions, certified by the secretary or an assistant secretary
of
the Company to have been duly adopted or consented to by the Board of Directors
and to be in full force and effect, and delivered to the trustee.
“
Business
Day
”
means
a
day that (a) in the Place of Payment (or in any of the Places of Payment,
if more than one) in which amounts are payable and (b) in the city in which
the Corporate Trust Office is located, is not a Saturday or Sunday or a day
on
which banking institutions are authorized or required by law or regulation
to
close.
“
Capital
Lease Obligations
”
means
Indebtedness represented by obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with generally
accepted accounting principles. The amount of Indebtedness will be the
capitalized amount of the obligations determined in accordance with generally
accepted accounting principles consistently applied.
“
Capital
Stock
”
means,
with respect to any entity, any and all shares, interests, participations or
other equivalents (however designated) of or in such entity’s Common Stock or
other equity interests, and options, rights or warrants to purchase such Common
Stock or other equity interests, whether now outstanding or issued after the
Issue Date.
“
Clearstream
”
means
Clearstream Banking S.A. and any successor thereto.
“
Change
of Control
”
means
the occurrence of any of the following:
(1)
the
adoption of a plan relating to the liquidation or dissolution of the
Company;
(2)
any
“person,” as such term is used in Section 13(d)(3) of the Exchange Act,
becomes the Beneficial Owner, directly or indirectly, of more than 50% of the
voting power of the Voting Stock of the Company;
provided
that
a
transaction in which the Company becomes a Subsidiary of another Person shall
not constitute a Change of Control if (a) the stockholders of the Company
immediately prior to such transaction Beneficially Own, directly or indirectly
through one or more intermediaries, 50% or more of the voting power of the
outstanding Voting Stock of such other Person of whom the Company is then a
Subsidiary and (b) immediately following such transaction no person (as
defined above) other than such other Person, Beneficially Owns, directly or
indirectly, more than 50% of the voting power of the Voting Stock of the
Company; or
(3)
the
first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.
“
Change
of Control Triggering Event
”
means
the occurrence of both a Change of Control and a Ratings Decline.
“
Code
”
means
the U.S. Internal Revenue Code of 1986, as amended.
“
Commission
”
means
the Securities and Exchange Commission.
“
Commodity
Agreement
”
means
any forward contract, commodity swap agreement, commodity option agreement
or
other similar agreement or arrangement.
“
Common
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.
“
Company
”
means
Citizens Communications Company, and any successor thereto.
“
Comparable
Treasury Issue
”
means
the United States Treasury security selected by an Independent Investment Banker
as having a maturity comparable to the remaining term of the Notes that would
be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes (“
Remaining
Life
”).
“
Comparable
Treasury Price
”
means,
for any redemption date, (1) the average of four Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest
Reference Treasury Dealer Quotations, or (2) if the Independent Investment
Banker obtains fewer than four such Reference Treasury Dealer Quotations the
average of all such quotations.
“
Continuing
Director
”
means,
as of any date of determination, any member of the Board of Directors of the
Company who:
(1)
was a
member of such Board of Directors on the 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 at
the
time of such nomination or election.
“
Corporate
Trust Office
”
means
the office of the Trustee at which the Trust created by this Indenture shall,
at
any particular time, be principally administered, which office is, at the date
as of which this Indenture is dated, located at 4 New York Plaza, 15th
Floor, New York, New York 10004.
“
Credit
Facilities
”
means
one or more debt facilities or commercial paper facilities, in each case with
banks or other lenders, including the Rural Telephone Finance Cooperative,
providing for revolving credit loans, term loans, receivables financings,
including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables, letters
of
credit or other borrowings, including capital markets debt, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced in whole
or in part from time to time.
“
Currency
Agreement
”
means
any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement.
“
Custodian
”
means,
with respect to the Notes issuable or issued in whole or in part in global
form,
the Person specified in Section 2.03(c) as Custodian with respect to the Notes,
and any and all successors thereto appointed as Custodian by DTC and having
become such pursuant to the Applicable Provisions of this
Indenture.
“
Default
”
means
any event that is, or after notice or passage of time 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 2.06 or 2.10 hereof, in substantially the form of
Exhibit A hereto 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 2.03(b) hereof 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 provisions of this
Indenture.
“
Designated
Subsidiary
”
means
any Subsidiary of the Company (a) the Capital Stock of which the Company
intends to distribute to its shareholders or (b) the assets or Capital
Stock of which the Company intends to sell or otherwise dispose of to any Person
other than the Company or any of its Subsidiaries, in each case, as evidenced
by
a Board Resolution.
“
Disqualified
Stock
”
means
any class or series of Capital Stock of any Person that by its terms or
otherwise is (1) required to be redeemed prior to the Stated Maturity of
the Notes, (2) redeemable at the option of the holder of such class or
series of Capital Stock at any time prior to the Stated Maturity of the Notes
or
(3) convertible into or exchangeable for Capital Stock referred to in
clause (1) or (2) above or Indebtedness having a scheduled maturity
prior to the Stated Maturity of the Notes.
“
Distribution
Compliance Period
”
means
the 40-day distribution compliance period as defined in Regulation
S.
“
Euroclear
”
means
Euroclear Bank, S.A./N.V., as operator of the Euroclear systems, and any
successor thereto.
“
Exchange
Act
”
means
the Securities Exchange Act of 1934, as amended.
“
Exchange
Notes
”
means
Notes issued in exchange for the Initial Notes or any Additional Notes pursuant
to a Registration Rights Agreement.
“
Exchange
Offer
”
has
the
meaning set forth in a Registration Rights Agreement relating to an exchange
of
Notes registered under the Securities Act for Notes not so
registered.
“
Exchange
Offer Registration Statement
”
has
the
meaning set forth in a Registration Rights Agreement.
“
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, whose determination, unless otherwise specified, shall be conclusive
if evidenced by a Board Resolution.
“
GAAP
”
means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute
of
Certified Public Accountants and 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, as in effect from time to time. All ratios and computations
contained or referred to in this Indenture shall be computed in conformity
with
GAAP applied on a consistent basis.
“
Global
Note Legend
”
means
the legend set forth in Section 2.06(g)(ii), which is required to be placed
on
all Global Notes issued under this Indenture.
“
Global
Notes
”
means
the global Notes in the form of Exhibit A hereto issued in accordance with
Article 2 hereof.
“
Guarantee
”
means
any obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Indebtedness of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent
or
otherwise, of such Person (1) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services (unless such
purchase arrangements are on arm’s-length terms and are entered into in the
ordinary course of business), to take-or-pay, or to maintain financial statement
conditions or otherwise) or (2) entered into for purposes of assuring in
any other manner the obligee of such Indebtedness of the payment thereof or
to
protect such obligee against loss in respect thereof (in whole or in part);
provided
that
the
term “Guarantee” shall not include endorsements for collection or deposit in the
ordinary course of business. The term “Guarantee” used as a verb has a
corresponding meaning.
“
Holder,
Holder of Notes, Noteholder
”
or
other similar terms mean the Person in whose name a Note is registered in the
Security Register kept by the Registrar for that purpose in accordance with
the
terms hereof.
“
IAI
Global Note
”
means
a
Global Note in the form of Exhibit A hereto bearing the Global Note Legend
and
the Private Placement Legend and deposited with and registered in the name
of
the Depositary or its nominee issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors, if
any, to the extent required by the Applicable Procedures.
“
Incur
”
means,
with respect to any Indebtedness, to incur, create, issue, assume, Guarantee
or
otherwise become liable for or with respect to, or become responsible for,
the
payment of, contingently or otherwise, such Indebtedness;
provided
that
(1) any Indebtedness of a Person existing at the time such Person becomes a
Subsidiary will be deemed to be incurred by such Subsidiary at the time it
becomes a Subsidiary and (2) neither the accrual of interest nor the
accretion or amortization of original issue discount nor the payment of interest
or dividend in the form of additional Indebtedness shall be considered an
Incurrence of Indebtedness.
“
Indebtedness
”
means,
with respect to any Person at any date of determination (without
duplication):
(1)
all
indebtedness of such Person for borrowed money;
(2)
all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(3)
all
obligations of such Person in respect of letters of credit or other similar
instruments (including reimbursement obligations with respect thereto, but
excluding obligations with respect to letters of credit (including trade letters
of credit) securing obligations entered into in the ordinary course of business
of such Person to the extent such letters of credit are not drawn upon or,
if
drawn upon, to the extent such drawing is reimbursed no later than the fifth
Business Day following receipt by such Person of a demand for
reimbursement);
(4)
all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, which purchase price is due more than one year after
the
date of placing such property in service or taking delivery and title thereto
or
the completion of such services, except Trade Payables;
(5)
all
Capitalized Lease Obligations of such Person;
(6)
all
Indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such 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;
(7)
all
Indebtedness of other Persons Guaranteed by such Person to the extent such
Indebtedness is Guaranteed by such Person;
(8)
to
the extent not otherwise included in this definition, obligations under Interest
Rate Agreements, Commodity Agreements and Currency Agreements, except for
Interest Rate Agreements, Commodity Agreements and Currency Agreements entered
into for the purpose of fixing, hedging or swapping interest rate, commodity
price or foreign currency exchange rate risk; and
(9)
all
Disqualified Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends, if any.
The
amount of Indebtedness of any Person at 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,
provided:
(A)
that
the amount outstanding at any time of any Indebtedness issued with original
issue discount is the face amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness at
such
time as determined in conformity with GAAP;
(B)
that
money borrowed and set aside at the time of the Incurrence of any Indebtedness
in order to prefund the payment of the interest on such Indebtedness shall
not
be deemed to be “Indebtedness” so long as such money is held to secure the
payment of such interest; and
(C)
that
Indebtedness shall not include:
(I)
any
liability for federal, state, local or other taxes;
(II)
workers’ compensation claims, self-insurance obligations, performance, surety,
appeal and similar bonds and completion guarantees provided in the ordinary
course of business;
(III)
obligations 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
that
such
Indebtedness is extinguished within two business days of its Incurrence;
or
(IV)
any
Indebtedness defeased or called for redemption.
“
Indenture
”
means
this instrument, as originally executed or as it may from time to time be
supplemented or amended in accordance with Article 9 hereof.
“
Independent
Investment Banker
”
means
one of the Reference Treasury Dealers appointed by the Company.
“
Indirect
Participant
”
means
a
Person who holds a beneficial interest in a Global Note through a
Participant.
“
Initial
Notes
”
means
$400,000,000 aggregate principal amount of Notes issued under this Indenture
on
the date hereof.
“
Institutional
Accredited Investor
”
means
an institution that is an “accredited investor” as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.
“
Interest
Payment Dates
”
shall
have the meaning set forth in paragraph 1 of the face of each Note.
“
Interest
Rate Agreement
”
means
any interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement, option
or future contract or other similar agreement or arrangement.
“
Issue
Date
”
means
the date on which the Notes are originally issued under this
Indenture.
“
Legal
Holiday
”
means
a
Saturday, a Sunday or a day on which banking institutions in the City of New
York, the city in which the Corporate Trust Office of the Trustee is located
or
any other place of payment on the Notes are authorized by law, regulation or
executive order to remain closed.
“
Letter
of Transmittal
”
means
the letter of transmittal, or its electronic equivalent in accordance with
the
Applicable Procedures, to be prepared by the Company and sent to all Holders
of
the Initial Notes or any Additional Notes for use by such Holders in connection
with an Exchange Offer.
“
Lien
”
means,
with respect to any property or assets, including Capital Stock, any mortgage
or
deed of trust, pledge, lien, hypothecation, assignment, deposit arrangement,
security interest, charge, easement or zoning restriction that materially
impairs usefulness or marketability, encumbrance, security agreement, Capital
Lease Obligation, conditional sale, any other agreement that has the same
economic effect as any of the above, or any sale and leaseback
transaction.
“
Moody’s
”
means
Moody’s Investor Services, Inc. or any successor rating agency.
“
Obligations
”
means
all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any
Indebtedness.
“
Officer
”
means
the Chief Executive Officer, the President, the Chief Financial Officer, any
Executive Vice President or any Senior Vice President of the
Company.
“
Officers’
Certificate
”
means,
with respect to any Person, a certificate signed by the Chairman of the Board
of
Directors, the President, or any Vice President and by the Treasurer, any
Assistant Treasurer, the Controller, any Assistant Controller, the Secretary
or
any Assistant Secretary of such Person in accordance with the applicable
provisions of this Indenture.
“
Opinion
of Counsel
”
means
a
written opinion, in form and substance reasonably satisfactory to the Trustee,
from legal counsel who is acceptable to the Trustee and which meets the
requirements of Section 11.05 hereof. The counsel may be an employee of or
counsel to the Company or the Trustee.
“
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
Amount
”
means,
at any time, the sum of (a) 10% of the value of the consolidated total
assets of the Company and (b) 20% of the sum of the total consolidated
current assets and net property, plant and equipment of the Company, in each
case, as shown on, or computed from, the most recent quarterly or annual
consolidated balance sheet filed by the Company with the Commission or provided
to the trustee.
“
Person
”
means
any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, estate, unincorporated
organization or government or any agency or political subdivision thereof or
any
other entity.
“
Place
of Payment
”
means
the place or places where the principal of and interest, if any, on the Notes
are payable as determined in accordance with the Indenture.
“
Predecessor
Note
”
of
any
particular Note means every previous Note evidencing all or a portion of the
same Indebtedness as that evidenced by such particular Note; and any Note
authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or
stolen Note shall be deemed to evidence the same Indebedness as the lost,
destroyed or stolen Note.
“
Private
Placement Legend
”
means
the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes
issued under this Indenture except as otherwise permitted by the provisions
of
this Indenture.
“
QIB
”
means
a
“qualified institutional buyer” as defined in Rule 144A.
“
Ratings
Agencies
”
means
Moody’s and S&P.
“
Ratings
Decline
”
means
the occurrence of the following on, or within 90 days after, the date of
the public notice of the occurrence of a Change of Control or of the intention
by the Company or any third-party to effect a Change of Control (which period
shall be extended so long as the rating of the Notes is under publicly announced
consideration for possible downgrade by any of the Ratings Agencies):
(1) in the event that the Notes have an Investment Grade Rating by both
Ratings Agencies, the Notes cease to have an Investment Grade Rating by one
or
both of the Ratings Agencies, or (2) in any other event, the rating of the
Notes by either of the Ratings Agencies decreases by one or more gradations
(including gradations within ratings categories as well as between rating
categories) or is withdrawn.
“
Reference
Treasury Dealer
”
means
any of the primary U.S. Government securities dealers in New York
City.
“
Reference
Treasury Dealer Quotations
”
means,
with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Independent Investment Banker, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Independent
Investment Banker at 5:00 p.m., New York City time, on the third Business
Day preceding such redemption date.
“
Registered
Note
”
means
any Note registered on the Security Register of the Company.
“
Registration
Rights Agreement
”
means
the Registration Rights Agreement dated as of the Issue Date, among the Company
and the initial purchasers named therein, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements between the Company and the
other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to
the
purchasers of Additional Notes to register such Additional Notes, or exchange
such Additional Notes for registered Notes, under the Securities
Act.
“
Regular
Record Date
”
for
the
interest payable on any Interest Payment Date means the applicable date
specified as a “Record Date” on the face of the Note.
“
Regulation
S
”
means
Regulation S promulgated under the Securities Act.
“
Regulation
S Global Note
”
means
a
permanent Global Note in the form of Exhibit A hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with and registered in
the
name of the Depositary or its nominee.
“
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) with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with
the
particular subject.
“
Restricted
Definitive Note
”
means
one or more Definitive Notes bearing the Private Placement Legend.
“
Restricted
Global Notes
”
means
144A Global Notes and Regulation S Global Notes.
“
Rule
144
”
means
Rule 144 promulgated under the Securities Act.
“
Rule
144A
”
means
Rule 144A 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.
“
S&P
”
means
Standard & Poor’s Rating Services, a division of the McGraw Hill Companies,
Inc., or any successor rating agency.
“
Securities
Act
”
means
the Securities Act of 1933, as amended.
“
Shelf
Registration Statement
”
means
the registration statement relating to the registration of the Notes under
Rule
415 of the Securities Act, as may be set forth in a Registration Rights
Agreement.
“
Special
Interest
”
has
the
meaning set forth in a Registration Rights Agreement relating to amounts to
be
paid in the event the Company fails to satisfy certain conditions set forth
therein. For all purposes of this Indenture, the term “interest” shall include
Special Interest, if any, with respect to the Notes.
“
Stated
Maturity
”
means,
(1) with respect to any debt security, the date specified in such debt
security as the fixed date on which the final installment of principal of such
debt security is due and payable and (2) with respect to any scheduled
installment of principal of or interest on any debt security, the date specified
in such debt security as the fixed date on which such installment is due and
payable.
“
Subsidiary
,
”
means,
with respect to any Person, any corporation, association or other business
entity of which more than 50% of the voting power of the outstanding Voting
Stock is owned, directly or indirectly, by such Person and one or more other
Subsidiaries of such Person.
“
TIA
”
means
the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder.
“
Trade
Payables
”
means,
with respect to any Person, any accounts payable or any other indebtedness
or
monetary obligation to trade creditors created, assumed or Guaranteed by such
Person or any of its Subsidiaries arising in the ordinary course of business
in
connection with the acquisition of goods or services.
“
Trustee
”
means
the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean such successor
Trustee.
“
Unregistered
Note
”
means
any Note other than a Registered Note.
“
Unrestricted
Definitive Notes
”
means
one or more Definitive Notes that do not and are not required to bear the
Private Placement Legend.
“
Unrestricted
Global Notes
”
means
one or more Global Notes that do not and are not required to bear the Private
Placement Legend and are deposited with and registered in the name of the
Depositary or its nominee.
“
U.S.
Government Securities
”
means
direct obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit
of
the United States of America is pledged and which are not callable or redeemable
at the issuer’s option.
“
Voting
Stock
”
of
any
Person as of any date means the Capital Stock of such Person that is normally
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 of the Indebtedness,
by (b) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment; by
(2)
the
then
outstanding principal amount of such Indebtedness.
|
|
“Authentication
Order”
|
2.02
|
|
|
|
“Change
of Control Offer”
|
4.10
|
|
|
|
“Change
of Control Payment”
|
4.10
|
|
|
|
“Change
of Control Payment Date”
|
4.10
|
|
|
|
“Covenant
Defeasance”
|
8.03
|
|
|
|
“DTC”
|
2.03(b)
|
|
|
|
“Event
of Default”
|
6.01
|
|
|
|
“Investment
Grade Rating”
|
4.11
|
|
|
|
“Legal
Defeasance”
|
8.02
|
|
|
|
“losses”
|
7.07
|
|
|
|
“Paying
Agent”
|
2.03(a)
|
|
|
|
“Registrar”
|
2.03(a)
|
|
|
|
“Security
Register”
|
2.03(a)
|
|
|
|
“successor”
|
5.01
|
|
|
|
“
Temporary
Note
”
|
2.10
|
|
(a)
Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
(b)
The
following TIA terms used in this Indenture have the following
meanings:
“
indenture
securities
”
means
the Notes;
“
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 Company and any successor obligor upon the Notes.
(c)
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 and
not
otherwise defined herein have the meanings so assigned to them either in the
TIA, by another statute or Commission rule, as applicable.
(a)
Unless
the context otherwise requires:
(i)
a
term
has the meaning assigned to it;
(ii)
an
accounting term not otherwise defined herein has the meaning assigned to it
in
accordance with GAAP;
(iii)
“or”
is
not exclusive;
(iv)
words
in
the singular include the plural, and in the plural include the
singular;
(v)
all
references in this instrument to “Articles,” “Sections” and other subdivisions
are to the designated Articles, Sections and subdivisions of this instrument
as
originally executed;
(vi)
the
words
“herein,” “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(vii)
“including”
means “including without limitation;”
(viii)
provisions
apply to successive events and transactions; and
(ix)
references
to sections of or rules under the Securities Act, the Exchange Act or the TIA
shall be deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time thereunder.
THE
NOTES
(a)
General
.
The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form included in Exhibit A hereto, which is hereby incorporated in and
expressly made part of this Indenture. The Notes may have notations, legends
or
endorsements required by law, exchange rule or usage in addition to those set
forth on Exhibit A (but which do not affect the rights, duties or immunities
of
the Trustee). Each Note shall be dated the date of its authentication. The
Notes
shall be in denominations of $1,000 and integral multiples thereof. The terms
and provisions contained in the Notes shall constitute a part of this Indenture
and the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
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.
(b)
Form
of Notes
.
Notes
shall be issued initially in global form and shall be substantially in the
form
of Exhibit A attached hereto (including the Global Note Legend thereon and
the
“Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes
issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (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 aggregate principal amount of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent 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 and transfers of interests
therein. Any endorsement of a Global 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 the Custodian, at the direction of
the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
(c)
Book-Entry
Provisions
.
This
Section 2.01(c) shall apply only to Global Notes deposited with the Trustee,
as
Custodian for the Depositary. Participants and Indirect Participants shall
have
no rights under this Indenture or any Global Note with respect to any Global
Note held on their behalf by the Depositary or by the Trustee as Custodian
for
the Depositary, and the Depositary shall be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Participants or Indirect Participants, the Applicable Procedures or
the
operation of customary practices of the Depositary governing the exercise of
the
rights of a holder of a beneficial interest in any Global Note.
(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” and “Customer Handbook” of Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.
(e)
Certificated
Securities
.
If at
any time the Depositary for any Notes represented by one or more Global Notes
notifies the Company that it is unwilling or unable to continue as Depositary
for such Notes or if at any time the Depositary for such Notes shall no longer
be eligible, the Company shall appoint a successor Depositary with respect
to
such Notes. If a successor Depositary for such Notes is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company’s election that such Notes be represented by
one or more Global Notes shall no longer be effective and the Company shall
execute, and the Trustee, upon receipt of an Authentication Order, will
authenticate and deliver Notes of such series in definitive registered form,
in
any authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Note or Notes representing such Notes in exchange
for such Global Note or Notes.
The
Company may at any time and in its sole discretion determine that the Notes
issued in the form of one or more Global Notes shall no longer be represented
by
a Global Note or Notes. In such event, the Company shall execute, and the
Trustee, upon receipt of an Authentication Order, shall authenticate and
deliver, Notes in definitive registered form, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of the Global
Note or Notes representing such Notes, in exchange for such Global Note or
Notes.
If
specified by the Company with respect to Notes represented by a Global Note,
the
Depositary for such Global Note may surrender such Global Note in exchange
in
whole or in part for Notes in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee, upon receipt of an Authentication Order shall
authenticate and deliver, without service charge,
|
|
(i)
|
to
the
Person specified by such Depositary, a new Note or Notes, of any
authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person’s beneficial
interest in the Global Note; and
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|
|
|
|
|
|
(ii)
|
to
such
Depositary a new Global Note in a denomination equal to the difference,
if
any, between the principal amount of the surrendered Global Note
and the
aggregate principal amount of Notes authenticated and delivered pursuant
to clause (i) above.
|
Upon
the
exchange of a Global Note for Notes in definitive registered form in authorized
denominations, such Global Note shall be cancelled by the Trustee or an agent
of
the Trustee. Notes in definitive registered form issued in exchange for a Global
Note pursuant to this Section 2.01 shall be registered in such names and in
such
authorized denominations as the Depositary for such Global Note, pursuant to
instructions from its Participants or Indirect Participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Company or an agent
of
the Company. The Trustee or such agent shall deliver at its Corporate Trust
Office such Notes to or as directed by the Persons in whose names such Notes
are
so registered.
All
Notes
issued upon any registration of transfer or exchange of Notes shall be valid
and
legally binding obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
|
Section
2.02.
|
Execution
and Authentication
.
|
(a)
One
Officer shall execute the Notes on behalf of the Company by manual or facsimile
signature.
(b)
If
an
Officer whose signature is on a Note no longer holds that office at the time
a
Note is authenticated by the Trustee, the Note shall nevertheless be
valid.
(c)
A
Note
shall not be valid until authenticated by the manual signature of the Trustee.
The signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
(d)
The
Trustee shall, upon a written order of the Company signed by an Officer (an
“
Authentication
Order
”),
authenticate Notes for issuance.
(e)
The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. Unless otherwise provided in such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent shall have the same rights
as the Trustee to deal with Holders, the Company or an Affiliate of the
Company.
|
Section
2.03.
|
Registrar
and Paying Agent
.
|
(a)
The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“
Registrar
”)
and an
office or agency where Notes may be presented for payment (“
Paying
Agent
”).
The
Registrar shall keep a register (the “
Security
Register
”)
of the
Notes and of their transfer and exchange. The Company 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 Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
(b)
The
Company initially appoints The Depository Trust Company (“
DTC
”)
to act
as Depositary with respect to the Global Notes. The Custodian agreed to act
as
Custodian on behalf of DTC with respect to the Global Notes.
(c)
The
Company initially appoints the Trustee to act as Registrar and Paying Agent,
and
the Trustee hereby agrees so to initially act.
|
Section
2.04.
|
Paying
Agent To Hold Money in
Trust
.
|
The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders
or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and shall notify the Trustee of
any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all funds held by
it
relating to the Notes to the Trustee. The Company at any time may require a
Paying Agent to pay all funds held by it to the Trustee. Upon payment over
to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for such funds. If the Company or a Subsidiary acts
as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all funds held by it as Paying Agent. Upon any Event
of
Default under Sections 6.01(d) and (e) hereof relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
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 § 312(a). If the Trustee is not the Registrar,
the Company shall furnish or cause to be furnished 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 or
such
shorter time as the Trustee may allow, as the Trustee may reasonably require
of
the names and addresses of the Holders and the Company shall otherwise comply
with TIA § 312(a).
|
Section
2.06.
|
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. Upon the
occurrence of any of the events set forth in Section 2.01(e) above, Definitive
Notes shall be issued in denominations of $1,000 or integral multiples thereof
and 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 2.07 and 2.10 hereof. Except as provided above, every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or
any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 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 2.06(a), and beneficial interests in a Global Note may not
be
transferred and exchanged other than as provided in Section 2.06(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 Global Notes also shall require compliance with either
clause (i) or (ii) below, as applicable, as well as one or more of the other
following clauses, 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 and any Applicable Procedures. 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.
Except as may be required by any Applicable Procedures, no written orders or
instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.06(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 Section 2.06(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) if permitted under Section 2.06(a), 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 (B)(1)
above. Upon consummation of an Exchange Offer by the Company in accordance
with
Section 2.06(f) hereof, the requirements of this Section 2.06(b)(ii) shall
be
deemed to have been satisfied upon receipt by the Registrar of the instructions
contained in the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes. 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 of the
relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii)
Transfer
of Beneficial Interests in a Restricted Global Note to Another Restricted Global
Note
.
A
holder of a beneficial interest in a Restricted Global Note may transfer such
beneficial interest 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 2.06(b)(ii) above and the Registrar receives
the following:
(A)
if
the
transferee will 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 hereto, including the certifications in item (1) thereof or, if
permitted by the Applicable Procedures, item (3) thereof; and
(B)
if
the
transferee will take delivery in the form of a beneficial interest in the
Regulation S Temporary Global Note or the Regulation S Permanent Global Note,
as
the case may be, then the transferor must deliver a certificate in the form
of
Exhibit B hereto, including the certifications in item (2) thereof.
(iv)
Transfer
or Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note
.
A
holder of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for a beneficial interest in an Unrestricted Global Note
or
may transfer such beneficial interest to a Person who takes delivery thereof
in
the form of a beneficial interest in an Unrestricted Global Note only if the
exchange or transfer complies with the requirements of Section 2.06(b)(ii)
above
and:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with a Registration Rights Agreement and the holder of the beneficial interest,
in the case of an exchange, or the transferee, in the case of a transfer, makes
any and all certifications required in the applicable Letter of Transmittal
(or
is deemed to have made such certifications if delivery is made through the
Applicable Procedures) as may be required by such Registration Rights
Agreement;
(B)
such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;
(C)
such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement;
or
(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 hereto,
including the certifications in item (1)(a) 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 beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and,
in
each such case set forth in this clause (D), if the Registrar so requests or
if
the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer
complies with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order
to
maintain compliance with the Securities Act.
If
any
such transfer is effected pursuant to clause (B) or (D) above at a time when
an
Unrestricted Global Note has not yet been issued, the Company shall execute
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 clause (B) or (D) above.
(v)
Transfer
or Exchange of Beneficial Interests in an Unrestricted Global Note for
Beneficial Interests in a Restricted Global Note Prohibited
.
Beneficial interests in an Unrestricted Global Note may not be exchanged for,
or
transferred to Persons who take delivery thereof in the form of, beneficial
interests in a Restricted Global Note.
(c)
Transfer
and Exchange of Beneficial Interests in Global Notes for Definitive
Notes
.
(i)
Transfer
or Exchange of Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes
.
Subject
to Section 2.06(a) hereof, 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 hereto, including the
certifications in item (2)(a) thereof;
(B)
if
such
beneficial interest is being transferred to a QIB in accordance with Rule 144A,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C)
if
such
beneficial interest is being transferred to a “Non-U.S. Person” in an offshore
transaction (as defined in Section 902(k) of Regulation S) in accordance with
Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D)
if
such
beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit
B
hereto, including the certifications in item (3)(a) thereof; or
(E)
if
such
beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,
the
Trustee shall reduce or cause to be reduced in a corresponding amount pursuant
to Section 2.06(h) hereof, the aggregate principal amount of the applicable
Restricted Global Note, and the Company shall execute and, upon receipt of
an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate and deliver a Restricted Definitive Note in the appropriate
principal amount to the Person designated by the holder of such beneficial
interest in the instructions delivered to the Registrar by the Depositary and
the applicable Participant or Indirect Participant on behalf of such holder.
Any
Restricted Definitive Note issued in exchange for beneficial interests in a
Restricted Global Note pursuant to this Section 2.06(c)(i) shall be registered
in such name or names and in such authorized denomination or denominations
as
the holder of such beneficial interest shall designate in such instructions.
The
Trustee shall deliver such Restricted Definitive Notes to the Persons in whose
names such Notes are so registered. Any Restricted Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant to
this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject
to all restrictions on transfer contained therein.
(ii)
Transfer
or Exchange of Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes
.
Subject
to Section 2.06(a) hereof, 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)
such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder of such beneficial interest,
in the case of an exchange, or the transferee, in the case of a transfer, makes
any and all certifications in the applicable Letter of Transmittal (or is deemed
to have made such certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights
Agreement;
(B)
such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;
(C)
such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement;
or
(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 an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, 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 an Unrestricted Definitive Note, a certificate from such holder
in
the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and,
in
each such case set forth in this clause (D), if the Registrar so requests or
if
the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer
complies with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order
to
maintain compliance with the Securities Act.
Upon
satisfaction of any of the conditions of any of the clauses of this Section
2.06(c)(ii), the Company shall execute and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall authenticate
and
deliver an Unrestricted Definitive Note in the appropriate principal amount
to
the Person designated by the holder of such beneficial interest in instructions
delivered to the Registrar by the Depositary and the applicable Participant
or
Indirect Participant on behalf of such holder, and the Trustee shall reduce
or
cause to be reduced in a corresponding amount pursuant to Section 2.06(h),
the
aggregate principal amount of the applicable Restricted Global
Note.
(iii)
Transfer
or Exchange of Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes
.
Subject
to Section 2.06(a) hereof, if any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for
an
Unrestricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note,
then,
upon satisfaction of the applicable conditions set forth in Section 2.06(b)(ii)
hereof, the Trustee shall reduce or cause to be reduced in a corresponding
amount pursuant to Section 2.06(h) hereof, the aggregate principal amount of
the
applicable Unrestricted Global Note, and the Company shall execute, and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the
Trustee shall authenticate and deliver an Unrestricted Definitive Note in the
appropriate principal amount to the Person designated by the holder of such
beneficial interest in instructions delivered to the Registrar by the Depositary
and the applicable Participant or Indirect Participant on behalf of such holder.
Any Unrestricted Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(iii) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such
beneficial interest shall designate in such instructions. The Trustee shall
deliver such Unrestricted Definitive Notes to the Persons in whose names such
Notes are so registered. Any Unrestricted Definitive Note issued in exchange
for
a beneficial interest pursuant to this Section 2.06(c)(iii) shall not bear
the
Private Placement Legend.
(d)
Transfer
and Exchange of Definitive Notes for Beneficial Interests in the Global
Notes
.
(i)
Transfer
or Exchange of Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes
.
If any
holder of a Restricted Definitive Note proposes to exchange such Restricted
Definitive Note for a beneficial interest in a Restricted Global Note or to
transfer such Restricted Definitive Note 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 Restricted
Definitive Note for a beneficial interest in a Restricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, 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 hereto, including
the
certifications in item (1) thereof;
(C)
if
such
Restricted Definitive Note is being transferred to a “non-U.S. Person” in an
offshore transaction (as defined in Rule 902(k) of Regulation S) in accordance
with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit
B
hereto, including the certifications in item (2) thereof;
(D)
if
such
Restricted Definitive Note is being transferred pursuant to an exemption from
the registration requirements of the Securities Act in accordance with Rule
144,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof; or
(E)
if
such
Restricted Definitive Note is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,
the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased in a corresponding amount pursuant to Section 2.06(h) hereof, the
aggregate principal amount of: in the case of clause (A) above, the
appropriate Restricted Global Note in the case of clause (B) above, a 144A
Global Note; in the case of clause (C) above, a Regulation S Global Note; and
in
all other cases, a IAI Global Note.
(ii)
Transfer
or Exchange of Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes
.
A
holder of a Restricted Definitive Note may exchange such Restricted Definitive
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)
such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder of such beneficial interest,
in the case of an exchange, or the transferee, in the case of a transfer, makes
any and all certifications in the applicable Letter of Transmittal (or is deemed
to have made such certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights
Agreement;
(B)
such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;
(C)
such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement;
or
(D)
the
Registrar receives the following:
(1)
if
the
holder of such Restricted Definitive Note proposes to exchange such Restricted
Definitive Note for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2)
if
the
holder of such Restricted Definitive Note proposes to transfer such Restricted
Definitive Note 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 hereto, including the certifications in item
(4)
thereof;
and,
in
each such case set forth in this clause (D), if the Registrar so requests or
if
the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer shall
be effected in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend shall no longer
be
required in order to maintain compliance with the Securities Act.
Upon
satisfaction of the conditions of any of the clauses in this Section
2.06(d)(ii), the Trustee shall cancel such Restricted Definitive Note and
increase or cause to be increased in a corresponding amount pursuant to Section
2.06(h) hereof, the aggregate principal amount of the Unrestricted Global
Note.
(iii)
Transfer
or Exchange of Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes
.
A
holder of an Unrestricted Definitive Note may exchange such Unrestricted
Definitive 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 in a corresponding amount pursuant to Section 2.06(h)
hereof the aggregate principal amount of one of the Unrestricted Global
Notes.
(iv)
Transfer
or Exchange of Unrestricted Definitive Notes to Beneficial Interests in
Restricted Global Notes Prohibited
.
An
Unrestricted Definitive Note may not be exchanged for, or transferred to Persons
who take delivery thereof in the form of, beneficial interests in a Restricted
Global Note.
(v)
Issuance
of Unrestricted Global Notes
.
If any
such exchange or transfer of a Definitive Note for a beneficial interest in
an
Unrestricted Global Note is effected pursuant to clause (ii)(B), (ii)(D) or
(iii) of this Section 2.06 at a time when an Unrestricted Global Note has not
yet been issued, the Company 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 2.06(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.
In
addition, the requesting holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(i)
Transfer
of 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:
(A)
if
the
transfer will be made pursuant to Rule 144A, a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof;
(B)
if
the
transfer will be made pursuant to Rule 903 or Rule 904, a certificate in the
form of Exhibit B hereto, including the certifications in item (2) thereof;
and
(C)
if
the
transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(ii)
Transfer
or Exchange of 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 only
if:
(A)
such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder, in the case of an exchange,
or the transferee, in the case of a transfer, makes any and all certifications
in the applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable Procedures) as may
be
required by a Registration Rights Agreement;
(B)
any
such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;
(C)
any
such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement;
or
(D)
the
Registrar receives the following:
(1)
if
the
holder of such Restricted Definitive Note proposes to exchange such Restricted
Definitive Notes for an Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit C hereto, including the certifications in item
(1)(d) thereof; or
(2)
if
the
holder of such Restricted Definitive Notes proposes to transfer such Restricted
Definitive Notes 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 hereto, including the certifications in item (4) thereof;
and,
in
each such case set forth in this clause (D), if the Registrar so requests,
an
Opinion of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer complies with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities
Act.
Upon
satisfaction of the conditions of any of the clauses of this Section
2.06(e)(ii), the Trustee shall cancel the prior Restricted Definitive Note
and
the Company shall execute, and upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver
an Unrestricted Definitive Note in the appropriate aggregate principal amount
to
the Person designated by the holder of such prior Restricted Definitive Note
in
instructions delivered to the Registrar by such holder.
(iii)
Transfer
of Unrestricted Definitive Notes to Unrestricted Definitive
Notes
.
A
holder of Unrestricted Definitive Notes may transfer such Unrestricted
Definitive 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)
Exchange
Offer
.
Upon
the occurrence of an Exchange Offer in accordance with a Registration Rights
Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate (A)
one
or more Unrestricted Global Notes in an aggregate principal amount equal to
the
aggregate principal amount of the beneficial interests in the applicable
Restricted Global Notes (1) tendered for acceptance by Persons that make any
and
all certifications in the applicable Letters of Transmittal (or are deemed
to
have made such certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights Agreement and (2)
accepted for exchange in such Exchange Offer and (B) Unrestricted Definitive
Notes in an aggregate principal amount equal to the aggregate principal amount
of the Restricted Definitive Notes tendered for acceptance by Persons who made
the foregoing certifications and accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall reduce or cause
to be reduced in a corresponding amount the aggregate principal amount of the
applicable Restricted Global Notes, and the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the
Trustee shall authenticate and deliver to the Persons designated by the holders
of Restricted Definitive Notes so accepted Unrestricted Definitive Notes in
the
appropriate aggregate principal amount.
(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.
(i)
Private
Placement Legend
.
(A)
Except
as
permitted by clause (B) below, each Global Note and each Definitive Note (and
all Notes issued in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY 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, SUCH REGISTRATION.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE (THE “RESALE RESTRICTION
TERMINATION DATE”) WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY
(A)
TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE
SECURITIES ACT (“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 OF THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF $250,000,
FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO
ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY
OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO
EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.”
(B)
Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to clauses
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to
this
Section 2.06 (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 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM,
THIS
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
NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME
OF
CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.”
(h)
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 cancelled in whole and not in part, each such Global Note shall be returned
to or retained and cancelled by the Trustee in accordance with Section 2.11
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 will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the aggregate 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 Custodian 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 will take delivery thereof in
the
form of a beneficial interest in another Global Note, the aggregate principal
amount of such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the Custodian
at the direction of the Trustee to reflect such increase.
(i)
General
Provisions Relating to Transfers and Exchanges
.
(i)
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 Company may require payment of a sum sufficient to cover
any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable
upon
exchange or transfer pursuant to Sections 2.10, 3.02, 4.10 and 9.05
hereof).
(ii)
All
Global Notes and Definitive Notes issued upon any registration of transfer
or
exchange of Global Notes or Definitive Notes shall be the valid obligations
of
the Company, evidencing the same debt as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange and shall be entitled
to all of the benefits of this Indenture equally and proportionately with all
other Notes duly issued hereunder.
(iii)
Neither
the Registrar nor the Company shall 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 any selection of Notes for redemption under
Section 3.02 hereof and ending at the close of business on the date of
selection, (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 or (C) to register the transfer of or to exchange a
Note
between a record date (including a Regular Record Date) and the next succeeding
Interest Payment Date.
(iv)
Prior
to
due presentment for the registration of transfer of any Note, the Trustee,
any
Agent and the Company 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 of, premium, if any, and interest on such Note and for
all
other purposes, in each case regardless of any notice to the
contrary.
(v)
All
certifications, certificates and Opinions of Counsel required to be submitted
to
the Registrar pursuant to this Section 2.06 to effect a registration of transfer
or exchange may be submitted by facsimile.
(vi)
The
Trustee is hereby authorized and directed to enter into a letter of
representation with the Depositary in the form provided by the Company and
to
act in accordance with such letter.
If
any
mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Note, the Company shall issue and, upon receipt of an Authentication Order
in
accordance with Section 2.02 hereof, the Trustee shall authenticate a
replacement Note. If required by the Trustee or the Company, the Holder of
such
Note shall provide indemnity that is sufficient, in the judgment of the Trustee
or the Company, to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer in connection
with such replacement. If required by the Company, such Holder shall reimburse
the Company for its reasonable expenses in connection with such
replacement.
Every
replacement Note issued in accordance with this Section 2.07 shall be the valid
obligation of the Company, evidencing the same Indebtedness as the destroyed,
lost or stolen Note, and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued
hereunder.
(a)
The
Notes
outstanding at any time shall be the entire principal amount of Notes
represented by all of the Global Notes and Definitive Notes authenticated by
the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those subject to reductions in beneficial interests effected
by
the Trustee in accordance with Section 2.06 hereof, and those described in
this
Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof,
a
Note shall not cease to be outstanding because the Company or an Affiliate
of
the Company holds the Note.
(b)
If
a Note
is replaced pursuant to Section 2.07 hereof, it shall cease to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Note
is
held by a protected purchaser.
(c)
If
the
principal amount of any Note is considered paid under Section 4.01 hereof,
it
shall cease to be outstanding and interest on it shall cease to
accrue.
(d)
If
the
Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date or a maturity date, funds 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.
In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company,
or by
any Affiliate of the Company, shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes that
the Trustee knows are so owned shall be so disregarded.
Until
certificates representing Notes are ready for delivery, the Company may prepare
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate temporary Notes (each a
“
Temporary
Note
”
).
Temporary Notes
shall be substantially in the form of Definitive Notes but may have variations
that the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Global Notes or Definitive
Notes in exchange for Temporary Notes, as applicable. After preparation of
Definitive Notes, the Temporary Note will be exchangeable for Definitive Notes
upon surrender of the Temporary Notes.
Holders
of Temporary Notes shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued
hereunder.
The
Company 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. Upon sole direction
of
the Company, the Trustee and no one else shall cancel all Notes surrendered
for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Notes (subject to the record retention requirements
of
the Exchange Act or other applicable laws) unless by written order, signed
by an
Officer of the Company, the Company directs them to be returned to it.
Certification of the destruction of all cancelled Notes shall be delivered
to
the Company from time to time upon request. The Company may not issue new Notes
to replace Notes that it has paid for that have been delivered to the Trustee
for cancellation.
|
Section
2.12.
|
Payment
of Interest; Defaulted Interest
.
|
If
the
Company 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.
The Company 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 Company 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
Interest Payment Date for such defaulted interest. At least 15 days before
the
special record date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) shall mail or cause
to be mailed to Holders a notice that states the special record date, the
related Interest Payment Date and the amount of such interest to be
paid.
|
Section
2.13.
|
CUSIP
or ISIN Numbers
.
|
The
Company in issuing the Notes may use “CUSIP” and/or “ISIN” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” and/or “ISIN”
numbers in notices of redemption or offers to purchase as a convenience to
Holders;
provided,
however,
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 or notice of an offer to purchase and that reliance may be placed
only on the other identification numbers printed on the Notes, and any such
redemption or offer to purchase shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of
any
change in the “CUSIP” and/or “ISIN” numbers.
If
Special Interest is payable by the Company pursuant to a Registration Rights
Agreement and paragraph 3 of the Notes, the Company shall deliver to the Trustee
a certificate to that effect stating (i) the amount of such Special Interest
that is payable and (ii) the date on which such interest is payable pursuant
to
Section 4.01 hereof. Unless and until a Responsible Officer of the Trustee
receives such a certificate or instruction or direction from the Holders in
accordance with the terms of this Indenture, the Trustee may assume without
inquiry that no Special Interest is payable. The foregoing shall not prejudice
the rights of the Holders with respect to their entitlement to Special Interest
as otherwise set forth in this Indenture or the Notes and pursuing any action
against the Company directly or otherwise directing the Trustee to take any
such
action in accordance with the terms of this Indenture and the Notes. If the
Company has paid Special Interest directly to the Persons entitled to it, the
Company shall deliver to the Trustee an Officers’ Certificate setting forth the
details of such payment.
|
Section
2.15.
|
Issuance
of Additional Notes
.
|
The
Company shall be entitled to issue Additional Notes under this Indenture which
shall have identical terms as the Initial Notes issued on the date hereof,
other
than with respect to the date of issuance, issue price and rights under a
related Registration Rights Agreement, if any. The Initial Notes issued on
the
date hereof, any Additional Notes and all Exchange Notes issued in exchange
therefor shall be treated as a single class for all purposes under this
Indenture, including directions, waivers, amendments, consents, redemptions
and
offers to purchase.
With
respect to any Additional Notes, the Company shall set forth in a Board
Resolution and an Officers’ Certificate, a copy of each of which shall be
delivered to the Trustee, the following information:
(a)
the
aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture;
(b)
the
issue
price, the issue date and the CUSIP and/or ISIN number of such Additional Notes;
provided,
however,
that no
Additional Notes may be issued at a price that would cause such Additional
Notes
to have “original issue discount” within the meaning of Section 1273 of the
Code, other than a
de
minimis
original
issue discount within the meaning of Section 1273 of the Code; and
(c)
whether
such Additional Notes shall be subject to the restrictions on transfer set
forth
in Section 2.06 hereof relating to Restricted Global Notes and Restricted
Definitive Notes.
The
record date for purposes of determining the identity of Holders of Notes
entitled to vote or consent to any action by vote or consent or permitted under
this Indenture shall be determined as provided for in TIA Section
316(c).
REDEMPTION
AND PREPAYMENT
|
Section
3.01.
|
Applicability
of Article
.
|
The
provisions of this Article shall be applicable to the Notes which are redeemable
before their maturity.
|
Section
3.02.
|
Notice
of Redemption; Partial Redemptions
.
|
Notice
of
redemption to the Holders of Notes to be redeemed as a whole or in part at
the
option of the Company shall be given by mailing notice of such redemption by
first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to such Holders of Notes at their last
addresses as they shall appear in the Security Register. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been
duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any Notes
designated for redemption as a whole or in part shall not affect the validity
of
the proceedings for the redemption of any other Note. The notice of redemption
to each such Holder shall specify (i) the principal amount of each Note held
by
such Holder to be redeemed, (ii) the date fixed for redemption, (iii) the
redemption price, (iv) the place or places of payment, (v) the CUSIP number
relating to the Notes, (vi) that payment will be made upon presentation and
surrender of the Notes, (vii) whether interest, if any, accrued to the date
fixed for redemption will be paid as specified in such notice and (viii) whether
on and after said date interest, if any, thereon or on the portions thereof
to
be redeemed will cease to accrue. In case any Note is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion thereof will be issued.
The
notice of redemption of Notes to be redeemed at the option of the Company shall
be given by the Company or, at the Company’s request, by the Trustee in the name
and at the expense of the Company.
On
or
before the redemption date specified in the notice of redemption given as
provided in this Section 3.02, the Company will deposit with the Trustee or
with
one or more Paying Agents (or, if the Company is acting as its own Paying Agent,
set aside, segregate and hold in trust as provided in Section 3.05) an amount
of
money sufficient to redeem on the redemption date all the Securities of such
series so called for redemption at the appropriate redemption price, together
with accrued interest, if any, to the date fixed for redemption. The Company
will deliver to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice period shall be satisfactory to the Trustee)
an Officers’ Certificate stating the aggregate principal amount of Notes to be
redeemed. In case of a redemption at the election of the Company prior to the
expiration of any restriction on such redemption, the Company shall deliver
to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers’ Certificate stating that such restriction has been
complied with.
If
less
than all of the Notes are to be redeemed, selection of the Notes for redemption
shall be made by the Trustee as follows:
|
|
(a)
|
if
the Notes are listed on any principal national securities exchange,
in
compliance with the requirements of such principal national securities
exchange; or
|
|
|
|
|
|
|
(b)
|
if
the Notes are not so listed, on a pro rata basis (subject to
the
procedures of DTC) or, to the extent a pro rata basis is not
permitted, in
such manner as the Trustee shall deem to be fair and
appropriate.
|
However,
no Note of $1,000 in principal amount or less shall be redeemed in part. A
new
Note in principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note. Notice of the redemption shall be given
only
after such selection has been made. Notes may be redeemed in part in multiples
equal to the minimum authorized denomination for Notes or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Notes selected
for redemption and, in the case of any Notes selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Notes shall relate, in the case of any Note redeemed or to be redeemed only
in part, to the portion of the principal amount of such Note which has been
or
is to be redeemed.
|
Section
3.03.
|
Payment
of Notes Called for Redemption
.
|
If
notice
of redemption has been given as provided by this Article 3, the Notes or
portions of Notes specified in such notice shall become due and payable on
the
date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any accrued to the date fixed
for
redemption, and on and after said date (unless the Company shall default in
the
payment of such Notes at the redemption price, together with interest, if any,
accrued to said date) interest, if any, on the Notes or portions of Notes so
called for redemption shall cease to accrue, and such Notes shall cease from
and
after the date fixed for redemption except as provided in Sections 7.01 and
8.04, to be entitled to any benefit or security under this Indenture, and the
Holders thereof shall have no right in respect of such Notes except the right
to
receive the redemption price thereof and unpaid interest, if any, to the date
fixed for redemption. On presentation and surrender of such Notes at a place
of
payment specified in said notice, said Notes or the specified portions thereof
shall be paid and redeemed by the Company at the applicable redemption price,
together with interest, if any, accrued thereon to the date fixed for
redemption;
provided
that payment of interest, if any, becoming due on
or prior to the date fixed for redemption shall be payable to the Holders of
Notes registered as such on the relevant record date subject to the terms and
provisions of Sections 3.03 hereof.
If
any
Note called for redemption shall not be so paid upon surrender thereof for
redemption, the redemption price shall, until paid or duly provided for, bear
interest from the date fixed for redemption at the rate of interest borne by
such Note.
Upon
presentation of any Note redeemed in part only, the Company shall execute and
the Trustee shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Company, a new Note or Notes, and of like tenor,
of authorized denominations, in principal amount equal to the unredeemed portion
of the Note so presented.
|
Section
3.04.
|
Exclusion
of Certain Securities from Eligibility for Selection for
Redemption
.
|
Notes
shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in an Officers’ Certificate
delivered to the Trustee at least 45 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and
not
pledged or hypothecated by either (a) the Company, or (b) a Person specifically
identified in such written statement as an Affiliate of the
Company.
|
Section
3.05.
|
Optional
Redemption
.
|
(a)
The
Notes
may be redeemed at the Company’s election, in whole or in part, at any time at a
redemption price equal to the greater of:
(i)
100%
of
the principal amount of the Notes to be redeemed then outstanding;
and
(ii)
as
determined by an Independent Investment Banker, the sum of the present values
of
the remaining scheduled payments of principal and interest on the Notes to
be
redeemed (not including any portion of such payments of interest accrued to
the
date of redemption) discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate, plus 50 basis points;
plus
,
in either of the above cases, accrued and unpaid interest to the date of
redemption on the Notes to be redeemed.
If
the
Company selects a redemption date that is on or after a record date and on
or
before the related interest payment date, the accrued and unpaid interest,
if
any, shall be paid to the person in whose name the Note is registered at the
close of business on such record date.
Any
notice to the Holders of Notes of a redemption pursuant to this Section 3.05(a)
shall include the appropriate calculation of the redemption price, but need
not
include the redemption price itself. The actual redemption price, calculated
as
described above, shall be set forth in an Officers’ Certificate delivered to the
Trustee no later than two Business Days prior to the redemption
date.
(b)
Any
prepayment pursuant to this Section 3.05 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
|
Section
3.06.
|
Mandatory
Redemption
.
|
Except
as
set forth in Section 4.10 hereof, the Company shall not be required to make
mandatory redemption or sinking fund payments with respect to, or offer to
purchase, the Notes.
COVENANTS
The
Company covenants and agrees that it will duly and punctually pay or cause
to be
paid the principal of, premium, if any, and interest, if any, on each of the
Notes at the place, at the respective times and in the manner provided in the
Notes.
|
Section
4.02.
|
Offices
for Notices and Payments, Etc
.
|
So
long
as any of the Notes are outstanding, the Company will maintain in each Place
of
Payment, an office or agency where the Notes may be presented for payment,
an
office or agency where the Notes may be presented for registration of transfer
and for exchange as provided in this Indenture, and an office or agency where
notices and demands to or upon the Company in respect of the Notes or of this
Indenture may be served. In case the Company shall at any time fail to maintain
any such office or agency, or shall fail to give notice to the Trustee of any
change in the location thereof, presentation may be made and notice and demand
may be served in respect of the Notes or of this Indenture at the Corporate
Trust Office. The Company hereby initially designates the Corporate Trust Office
for each such purpose.
|
Section
4.03.
|
No
Interest Extension
.
|
In
order
to prevent any accumulation of claims for interest after maturity thereof,
the
Company will not directly or indirectly extend or consent to the extension
of
the time for the payment of any claim for interest on any of the Notes and
will
not directly or indirectly be a party to or approve any such arrangement by
the
purchase or funding of said claims or in any other manner;
provided,
however
,
that
this Section 4.03 shall not apply in any case where an extension shall be made
pursuant to a plan proposed by the Company to the Holders of all
Notes.
|
Section
4.04.
|
Appointments
To Fill Vacancies in Trustee’s Office
.
|
The
Company, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 7.08, a Trustee, so
that there shall at all times be a Trustee hereunder.
|
Section
4.05.
|
Provision
as to Paying Agent
.
|
(a)
If
the
Company shall appoint a Paying Agent other than the Trustee, it will cause
such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section 4.05,
(i)
that
it
will hold all sums held by it as such Paying Agent for the payment of the
principal of or interest, if any, on the Notes (whether such sums have been
paid
to it by the Issuer or by any other obligor on the Notes) in trust for the
benefit of the Holders of the Notes and the Trustee; and
(ii)
that
it
will give the Trustee notice of any failure by the Company (or by any other
obligor on the Notes) to make any payment of the principal of, premium, if
any,
or interest, if any, on the Notes when the same shall be due and payable;
and
(iii)
that
it
will, at any time during the continuance of any such failure, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
(b)
If
the
Company shall act as its own Paying Agent, it will, on or before each due date
of the principal of or interest, if any, on the Notes, set aside, segregate
and
hold in trust for the benefit of the Holders of the Notes a sum sufficient
to
pay such principal, premium, if any, or interest, if any, so becoming due and
will notify the Trustee of any failure to take such action and of any failure
by
the Company (or by any other obligor under the Notes) to make any payment of
the
principal, premium, if any, of or interest, if any, on the Notes when the same
shall become due and payable.
(c)
Anything
in this Section 4.05 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid to the Trustee
all
sums held in trust by it, or any Paying Agent hereunder, as required by this
Section 4.05, such sums to be held by the Trustee upon the trusts herein
contained.
(d)
Anything
in this
Section 4.05 to the contrary notwithstanding, any agreement of the Trustee
or
any Paying Agent to hold sums in trust as provided in this Section 4.05 is
subject to Sections 8.03 and 8.04.
(e)
Whenever
the Company shall have one or more Paying Agents, it will, on or before each
due
date of the principal of or interest, if any, on any Notes, deposit with a
Paying Agent a sum sufficient to pay the principal, premium, if any, or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium, if any, or interest, if
any,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
|
Section
4.06.
|
Reports
by the Company
.
|
The
Company covenants:
(a)
to
file
with the Trustee, within 15 days after the Company is required to file the
same
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe),
if
any, which the Company may be required to file with the Commission pursuant
to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of such
Sections, then to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
of
the supplementary and periodic information, documents and reports which may
be
required pursuant to Section 13 of the Exchange Act, in respect of a debt
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b)
to
file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be required
from
time to time by such rules and regulations;
(c)
to
transmit by mail to the Holders of the Notes within 30 days after the filing
thereof with the Trustee, in the manner and to the extent provided in Section
4.07, such summaries of any information, documents and reports required to
be
filed by the Company pursuant to subsections (a) and (b) of this Section 4.06
as
may be required to be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission; and
(d)
to
furnish to the Trustee, not less than annually, a brief certificate from the
principal executive officer, principal financial officer or principal accounting
officer as to his knowledge of the Company’s compliance with all conditions and
covenants under this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
|
Section
4.07.
|
Reports
by the Trustee
.
|
(a)
The
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the TIA at the
times
and in the manner provided pursuant thereto. To the extent that any such report
is required by the TIA with respect to any 12 month period, such report shall
cover the 12 month period ending May 15 and shall be transmitted by the next
succeeding July 15.
(a)
A
copy of
each such report shall, at the time of such transmission to Noteholders, be
furnished to the Company and be filed by the Trustee with each stock exchange
upon which the Notes are listed and also with the Commission. The Company agrees
to promptly notify the Trustee when and as the Notes become admitted to trading
on any national securities exchange.
|
Section
4.08.
|
Limitation
on Subsidiary Indebtedness
.
|
(a)
Indebtedness
of any Subsidiary of the Company consisting of (i) Guarantees by such
Subsidiary of Indebtedness of the Company under Credit Facilities or
(ii) Liens granted by such Subsidiary to secure such Guarantee or such
Indebtedness of the Company, in an aggregate principal amount (without
duplication), when taken together with the aggregate principal amount of
Indebtedness secured by Liens on the property or assets (which includes capital
stock) of the Company and its Subsidiaries Incurred pursuant to the second
sentence and clause (1) of the first paragraph of Section 4.09, not to
exceed the Permitted Amount at the time of Incurrence of such Guarantee or
Lien;
(b)
Indebtedness
of any Designated Subsidiary or any Subsidiary of such Designated Subsidiary;
provided
that,
with respect to this clause (b) only, no portion of such Indebtedness is
recourse to the Company or any of its other Subsidiaries;
(c)
Acquired
Indebtedness;
(d)
Indebtedness
existing on the Issue Date of any Subsidiary of the Company;
(e)
Indebtedness
of any Subsidiary of the Company issued in exchange for, or the net proceeds
of
which are used or will be used to extend, refinance, renew, replace, defease
or
refund, other Indebtedness that was permitted by the Indenture to be Incurred
under clause (c) or (d) of this paragraph; or
(f) Indebtedness
in an aggregate principal amount, at anytime outstanding, not to exceed $250
million.
The
maximum amount of Indebtedness that may be Incurred pursuant to this Section
4.08 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.
|
Section
4.09.
|
Limitations
on Liens
.
|
The
Company shall not, and shall not permit any of its Subsidiaries to, allow any
Lien on any of the Company’s or its Subsidiaries’ property or assets (which
includes capital stock) securing Indebtedness, unless the Lien secures the
notes
equally and ratably with, or prior to, any other Indebtedness secured by such
Lien, so long as such other Indebtedness is so secured, subject to certain
exceptions described in this Section 4.09. This Section 4.09 shall not apply
to
secured debt that the Company or its Subsidiaries may issue, assume,
guarantee or permit to exist up to 10% of the value of the consolidated total
assets of the Company as shown on, or computed from, the most recent quarterly
or annual balance sheet filed by the Company with the Commission or provided
to
the Trustee. In addition, this Section 4.09 shall not take into account or
apply
to:
(a)
Liens
securing indebtedness and other obligations under any senior bank financing
of
the Company or any of its Subsidiaries, including guarantees of Indebtedness
and
other obligations under such senior bank financings, in an amount of up to
20%
of the sum of the total consolidated current assets and net property, plant
and
equipment of the Company as shown on, or computed from, the most recent
quarterly or annual balance sheet filed by the Company with the Commission
or
provided to the Trustee;
(b)
Liens
existing on the Issue Date;
(c)
Liens
on
property that exist when the Company acquires the property that secure payment
of the purchase price of the property;
(d)
Liens
securing debt that any Subsidiary of the Company owes to the Company or to
any
other Subsidiary of the Company;
(e)
Liens
on
property, shares of stock or indebtedness of any entity that exists when
(i) it becomes a Subsidiary of the Company, (ii) it is merged into or
consolidated with the Company or any of its Subsidiaries, or (iii) the
Company or any of its Subsidiaries acquires all or substantially all of the
assets of the entity;
provided
that
no
such Lien extends to any other property of the Company or any of its
Subsidiaries;
(f) Liens
on property to secure debt incurred for development or improvement of the
property;
(g)
Liens
securing (i) nondelinquent performance of bids or contracts (other than for
borrowed money, obtaining of advances or credit or the securing of debt),
(ii) contingent obligations on surety and appeal bonds and (iii) other
similar nondelinquent obligations, in each case incurred in the ordinary course
of business;
(h)
Liens
securing purchase money Indebtedness or Capital Lease Obligations,
provided
that (a) any such Lien attaches to the property within
270 days after the acquisition thereof and (b) such Lien attaches solely to
the property so acquired;
(i)
Liens arising solely by virtue of any statutory or common law provision relating
to bankers
’
Liens, rights of set-off or similar rights and remedies as to deposit account
or
other funds;
provided
that
such
deposit account is not a dedicated cash collateral account and is not subject
to
restrictions against the Company’s access in excess of those set forth by
regulations promulgated by the Federal Reserve Board and such deposit account
is
not intended by the Company to provide collateral to the depository
institution;
(j)
pledges
or
deposits under worker’s compensation laws, unemployment insurance laws or
similar legislation;
(k)
statutory
and
tax Liens for sums not yet due or delinquent or which are being contested or
appealed in good faith by appropriate proceedings;
(l)
Liens
arising solely by operation of law and in the ordinary course of business,
such
as mechanics’, materialmen’s, warehousemen’s and carriers’ Liens and Liens of
landlords or of mortgages of landlords on fixtures and movable property located
on premises leased in the ordinary course of business;
(m)
Liens
on personal
property (other than shares or debt of the Company’s Subsidiaries) securing
loans maturing in not more than one year or on accounts receivables in
connection with a receivables financing program;
(n)
Liens
securing financings in amounts up to the value of assets, businesses and
properties acquired after the Issue Date; or any Lien upon any property to
secure all or part of the cost of construction thereof or to secure debt
incurred prior to, at the time of, or within twelve months after completion
of
such construction or the commencement of full operations thereof (whichever
is
later), to provide funds for such purpose; or
(o)
extensions,
renewals or replacement of any of the Liens described above, if limited to
all
or any part of the same property securing the original Lien.
Notwithstanding
the foregoing, the Company shall not, and shall not permit any of its
Subsidiaries to, Incur Liens securing Indebtedness or other obligations pursuant
to the second sentence or clause (a) of the first paragraph of this Section
4.09, unless, after giving effect to the Incurrence of such Liens, the aggregate
amount (without duplication) of (i) the Indebtedness and other obligations
secured by Liens on the property or assets (which includes capital stock) of
the
Company and its Subsidiaries Incurred pursuant to the second sentence and clause
(a) of the first paragraph of this Section 4.09,
plus
(ii) the Indebtedness of the Company’s Subsidiaries Incurred pursuant to
clause (a) of the first paragraph of Section 4.08 shall not exceed the
Permitted Amount at the time of the Incurrence of such Liens.
|
Section
4.10.
|
Repurchase
at the Option of Holders Upon a Change of Control Triggering
Event
.
|
Upon
the
occurrence of a Change of Control Triggering Event, each Holder of Notes will
have the right to require the Company to repurchase all or any part, equal
to
$1,000 or an integral multiple thereof, of that Holder’s Notes pursuant to an
offer (the “
Change
of Control Offer
”)
on the
terms set forth in this Indenture at an offer price in cash equal to 101% of
the
aggregate principal amount of Notes repurchased plus accrued and unpaid interest
on the Notes to the applicable date of repurchase (the “
Change
of Control Payment
”).
Within 30 days following any Change of Control Triggering Event, if the Company
had not, prior to the Change of Control Triggering Event, sent a redemption
notice for all the Notes in connection with an optional redemption permitted
by
Section 3.05 hereof, the Company shall mail a notice to each registered Holder
briefly describing the transaction or transactions that constitute a Change
of
Control Triggering Event and offering to repurchase Notes on the date specified
in such notice (the “
Change
of Control Payment Date
”),
pursuant to the procedures required by this Indenture and described in such
notice.
The
Company shall comply with the requirements of Rule 14e-1 under the Exchange
Act
and any other securities laws and regulations thereunder to the extent such
laws
and regulations are applicable in connection with the repurchase of the Notes
as
a result of a Change of Control Triggering Event. To the extent that the
provisions of any securities laws or regulations conflict with the Change of
Control Triggering Event provisions of this Section 4.10, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the provisions of this Section
4.10 by virtue of such conflict.
On
the
Change of Control Payment Date, the Company shall, to the extent
lawful:
(a)
accept
for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer;
(b)
deposit
with the Paying Agent an amount equal to the Change of Control Payment in
respect of all notes or portions thereof properly tendered; and
(c)
deliver
or cause to be delivered to the Trustee the Notes so accepted together with
an
Officers’ Certificate stating the aggregate principal amount of Notes or
portions thereof being purchased by the Company.
The
Paying Agent will promptly mail to each registered Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee will 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 $1,000 or an integral
multiple thereof. Any Note so accepted for payment shall cease to accrue
interest on and after the Change of Control Payment Date.
This
Section 4.10 shall be applicable, except as described in this Section 4.10,
following a Change of Control Triggering Event notwithstanding Section 3.05
hereof.
Notwithstanding
the foregoing, the Company shall not be required to make a Change of Control
Offer upon a Change of Control Triggering Event 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 4.10 applicable to a Change
of
Control Offer made by the Company and purchases all Notes properly tendered
and
not withdrawn under the Change of Control Offer.
The
Company may make a Change of Control Offer in advance of a Change of Control
Triggering Event, and conditional upon the occurrence of such Change of Control
Triggering Event, if a definitive agreement is in place for the Change of
Control Triggering Event at the time of making the Change of Control
Offer.
|
Section
4.11.
|
Termination
of Certain Covenants
.
|
In
the
event that the Notes receive a rating equal to or greater than BBB- by S&P
and Baa3 by Moody’s, or the equivalent thereof under any new ratings system if
the ratings system of either such agency shall be modified after the date hereof
(with a stable or better outlook in the case of a rating equal to BBB- by
S&P and Baa3 by Moody’s) (each such rating, an “
Investment
Grade Rating
”),
and
notwithstanding that the Notes may later cease to have an Investment Grade
Rating from either S&P or Moody’s or both, the Company and its Subsidiaries
shall not be subject to Section 4.08.
SUCCESSORS
|
Section 5.01
.
|
Limitation
on Mergers, Consolidations and Sales of
Assets
.
|
The
Company may not consolidate or merge with or into, or sell, lease or convey
all
or substantially all of its assets in any one transaction or series of
transactions to any other corporation, unless:
|
|
(a)
|
the
resulting, surviving or transferee corporation (the “
successor
”)
is either the Company or is a corporation organized under the laws
of the
United States, any state or the District of Columbia and expressly
assumes
by supplemental indenture all of the Company’s obligations under this
Indenture and the Notes; and
|
|
|
|
|
|
|
(b)
|
immediately
after giving effect to the transaction no Event of Default or
event which
with notice or lapse of time would be an Event of Default has
occurred and
is continuing.
|
|
Section
5.02.
|
Successor
Corporation To Be Substituted
.
|
In
case
of any such consolidation or merger or any sale, conveyance or lease of all
or
substantially all of the property of the Company 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 due and punctual payment
of the principal of, premium, if any, and interest, if any, on all of the Notes
and the due and punctual performance of all of the covenants and conditions
of
this Indenture to be performed by the Company, such successor Person shall
succeed to and be substituted for the Company, with the same effect as if it
had
been named herein as the party of the first part, and the Company (including
any
intervening successor to the Company which shall have become the obligor
hereunder) shall be relieved of any further obligation under this Indenture
and
the Notes;
provided
,
however
, that in the case of a sale, lease, exchange or other
disposition of the property and assets of the Company (including any such
intervening successor), the Company (including any such intervening successor)
shall continue to be liable for its obligations under this Indenture and the
Notes to the extent, but only to the extent, of liability to pay the principal
of, premium, if any, and interest, if any, on the Notes at the time, places
and
rate prescribed in this Indenture and the Notes. Such successor Person thereupon
may cause to be signed, and may issue either in its own name or in the name
of
the Company, any or all of the Notes issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee; and, upon
the
order of such successor Person instead of the Company and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Notes that previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Notes that such successor Person thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the Notes
so issued shall in all respects have the same legal rank and benefit under
this
Indenture as the Notes theretofore or thereafter issued in accordance with
the
terms of this Indenture as though all of such Notes had been issued at the
date
of the execution hereof.
In
case
of any such consolidation or merger or any sale, lease, exchange or other
disposition of all or substantially all of the property and assets of the
Company, such changes in phraseology and form (but not in substance) may be
made
in the Notes, thereafter to be issued, as may be appropriate.
|
Section
5.03.
|
Opinion
of Counsel To Be Given Trustee
.
|
The
Trustee, subject to Sections 7.01 and 7.02, shall receive an Officers’
Certificate and Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, lease, exchange or other disposition and any such
assumption complies with the provisions of this Article 5.
DEFAULTS
AND REMEDIES
|
Section
6.01.
|
Event
of Default
Defined; Acceleration of Maturity; Waiver of
Default
.
|
“
Event
of Default
”
with
respect to Notes, wherever used herein, means any one of the following events
which shall have occurred and be continuing (whatever the reason for such Event
of Default), whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court
or
any order, rule or regulation of any administrative or governmental
body):
|
|
(a)
|
default
in the payment of any installment of interest upon any of the
Notes as and
when the same shall become due and payable, and continuance of
such
default for a period of 60 days; or
|
|
|
|
|
|
|
(b)
|
default
in the payment of all or any part of the principal or premium
(if any) on
any of the Notes as and when the same shall become due and payable
either
at maturity, upon any redemption, by declaration or otherwise;
or
|
|
|
|
|
|
|
(c)
|
failure
on the part of the Company duly to observe or perform any other
of the
covenants or agreements on the part of the Company in the Notes
or
contained in this Indenture for a period of 90 days after the date
on
which written notice specifying such failure, stating that such
notice is
a “Notice of Default” hereunder and demanding that the Company remedy the
same, shall have been given by registered or certified mail, return
receipt requested, to the Company by the Trustee, or to the Company
and
the Trustee by the holders of at least 25% in aggregate principal
amount
of the outstanding Notes; or
|
|
|
|
|
|
|
(d)
|
without
the consent of the Company a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Company
in an
involuntary case under any applicable bankruptcy, insolvency or
other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company for any substantial part of its property
or
ordering the winding up or liquidation of its affairs, and such
decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or
|
|
|
|
|
|
|
(e)
|
the
Company shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or
consent to
the entry of an order for relief in an involuntary case under any
such
law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property,
or
make any general assignment for the benefit of
creditors.
|
If
an
Event of Default described in clause (a) or (b) occurs and is continuing, then,
and in each and every such case, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding hereunder
by notice in writing to the Company (and to the Trustee if given by Holders),
may declare the entire principal of all Notes, and the interest accrued thereon,
if any, to be due and payable immediately, and upon any such declaration, the
same shall become immediately due and payable.
If
an
Event of Default described in clause (c) above occurs and is continuing for
a
period of 60 days after the notice of the Event of Default, then, and in each
and every such case, unless the Principal of all of the Securities shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of all of the Securities then outstanding
hereunder (treated as one class) by notice in writing to the Company (and to
the
Trustee if given by Holders), may declare the entire principal of all of the
Notes then outstanding, and the interest accrued thereon, if any, to be due
and
payable immediately, and upon such declaration, the same shall become
immediately due and payable. If an Event of Default described in clause (d)
or
(e) above occurs and is continuing, then the principal amount of all the
Securities then outstanding, and the interest accrued thereon, if any, shall
become and be immediately due and payable without any declaration or other
act
on the part of the Trustee or any Holder.
The
foregoing provisions are subject to the condition that if, at any time after
the
principal of the Notes shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided:
|
|
(a)
|
the
Company shall pay or shall deposit with the Trustee a sum sufficient
to
pay:
|
|
|
(i)
|
all
matured installments of interest upon all the Notes;
and
|
|
|
|
|
|
|
(ii)
|
the
principal of any and all Notes which shall have become due otherwise
than
by acceleration; and
|
|
|
|
|
|
|
(iii)
|
interest
upon such principal and, to the extent that payment of such interest
is
enforceable under applicable law, on overdue installments of
interest, at
the same rate as the rate of interest specified in the Notes
to the date
of such payment or deposit; and
|
|
|
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|
|
|
(iv)
|
all
amounts payable to the Trustee pursuant to Section 7.07;
and
|
|
|
(b)
|
all
Events of Default under the Indenture, other than the non-payment
of the
principal of Notes which shall have become due by acceleration,
shall have
been cured, waived or otherwise remedied as provided
herein,
|
then,
and
in every such case, the Holders of a majority, or any applicable supermajority,
in aggregate principal amount of the Notes then outstanding, by written notice
to the Company and to the Trustee, may waive all defaults and rescind and annul
such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon.
|
Section
6.02.
|
Collection
of Indebtedness by Trustee; Trustee May Prove Debt
.
|
The
Company covenants that (a) in case default shall be made in the payment of
any
installment of interest on any of the Notes when such interest shall have become
due and payable, and such default shall have continued for a period of 60 days,
or (b) in case default shall be made in the payment of all or any part of the
principal of any of the Notes when the same shall have become due and payable,
whether upon maturity of the Notes or upon any redemption or by declaration
or
otherwise, then upon demand of the Trustee, the Company will pay to the Trustee
for the benefit of the Holders of the Notes the whole amount that then shall
have become due and payable on all Notes for principal and interest, as the
case
may be (with interest to the date of such payment upon the overdue principal
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest at the same rate as the rate of
interest specified in the Notes); and in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, and such
other amount due the Trustee under Section 7.07 in respect of
Notes.
Until
such demand is made by the Trustee, the Company may pay the principal of and
interest on the Notes to the registered Holders, whether or not the Notes be
overdue.
In
case
the Company shall fail forthwith to pay such amounts upon such demand, the
Trustee, in its own name as trustee of an express trust, shall be entitled
and
empowered to institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such action
or
proceedings to judgment or final decree, and may enforce any such judgment
or
final decree against the Company or other obligor upon the Notes and collect
in
the manner provided by law out of the property of the Company or other obligor
upon the Notes, wherever situated, all the moneys adjudged or decreed to be
payable.
In
case
there shall be pending proceedings relative to the Company or any other obligor
upon the Notes then outstanding under Title 11 of the United States Code or
any
other applicable federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for
or
taken possession of the Company or its property or such other obligor, or in
case of any other similar judicial proceedings relative to the Company or other
obligor upon the Notes, or to the creditors or property of the Company or such
other obligor, the Trustee, irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered,
by
intervention in such proceedings or otherwise:
|
|
(a)
|
to
file and prove a claim or claims for the whole amount of principal
and
interest, if any, owing and unpaid in respect of the Notes,
and, in the
case of any judicial proceedings, to file such other papers
or documents
as may be necessary or advisable in order to have the claims
of the
Trustee (including any claim for amounts payable to the Trustee
under
Section 7.07) and of the Noteholders allowed in any judicial
proceedings
relative to the Company or other obligor upon the Notes, or
to the
creditors or property of the Company or such other obligor;
and
|
|
|
|
|
|
|
(b)
|
unless prohibited by applicable law and regulations,
to
vote on behalf of the holders of the Notes in any election of a
receiver,
assignee, trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings, custodian
or
other prson performing similar functions in respect of any such
proceedings; and
|
|
|
|
|
|
|
(c)
|
to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts
received with respect to the claims of the Noteholders and of the
Trustee
on their behalf; and any trustee, receiver, or liquidator, custodian
or
other similar official performing similar functions in respect
of any such
proceedings is hereby authorized by each of the Noteholders to
make
payments to the Trustee, and, in the event that the Trustee shall
consent
to the making of payments directly to the Noteholders, to pay to
te
Trustee its costs and expenses of collection and all other amounts
due to
it pursuant to Section 7.07.
|
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or vote for or accept or adopt on behalf of any Noteholder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes
or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceeding, except as aforesaid
in
clause (b).
All
rights of action and of asserting claims under this Indenture, or under any
of
the Notes, may be enforced by the Trustee without the possession of any of
the
Notes or the production thereof in any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the Trustee shall
be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall be awarded to the Trustee for ratable distribution to the Holders
of the Notes in respect of which such action was taken, after payment of all
sums due to the Trustee under Section 7.07 in respect of such
Notes.
In
any
proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall
be
a party) the Trustee shall be held to represent all the Holders of the Notes
in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Notes parties to any such proceedings.
|
Section
6.03.
|
Application
of Proceeds
.
|
Any
moneys collected by the Trustee pursuant to this Article 6 in respect of the
Notes shall be applied in the following order at the date or dates fixed by
the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Notes in respect of which monies
have been collected and stamping (or otherwise noting) thereon the payment,
or
issuing Notes of such series in reduced principal amounts in exchange for the
presented Notes if only partially paid, or upon surrender thereof if fully
paid:
FIRST:
To
the payment of costs and expenses applicable to the Notes in respect of which
monies have been collected, including all amounts due to the Trustee and each
predecessor Trustee pursuant to Section 7.07 in respect to the
Notes;
SECOND:
In case the principal of the Notes in respect of which moneys have been
collected shall not have become and be then due and payable, to the payment
of
interest on the Notes in default in the order of the maturity of the
installments on such interest, with interest (to the extent that such interest
has been collected by the Trustee and is permitted by applicable law) upon
the
overdue installments of interest at the same rate as the rate of interest
specified in the Notes, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD:
In
case the principal of the Notes in respect of which moneys have been collected
shall have become and shall be then due and payable, to the payment of the
whole
amount then owing and unpaid upon all the Notes for principal and interest,
with
interest upon the overdue principal, and (to the extent that such interest
has
been collected by the Trustee and is permitted by applicable law) upon the
overdue installations of interest at the same rate as the rate of interest
specified in the Notes; and in case such moneys shall be insufficient to pay
in
full the whole amount so due and unpaid upon the Notes, then to the payment
of
such principal and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of interest
over
any other installment of interest or of any Note over any other Note, ratably
to
the aggregate of such principal and accrued and unpaid interest;
and
FOURTH:
To the payment of the remainder, if any, to the Company or any other person
lawfully entitled thereto.
|
Section
6.04.
|
Suits
for Enforcements
.
|
In
case
an Event of Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such rights, either
at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by
law.
|
Section
6.05.
|
Restoration
of Rights on Abandonment of Proceedings
.
|
In
case
the Trustee shall have proceeded to enforce any right under this Indenture
and
such proceedings shall have been discontinued or abandoned for any reason,
or
shall have been determined adversely to the Trustee, then and in every such
case
the Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company, the Trustee and the Noteholders shall continue as though no such
proceedings had been taken.
|
Section
6.06.
|
Limitation
on Suits by Noteholders
.
|
No
Holder
of any Note shall have any right by virtue or by availing of any provision
of
this Indenture to institute any action or proceeding at law or in equity or
in
bankruptcy or otherwise upon or under or with respect to this Indenture or
such
Security, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder or thereunder,
unless (a) such Holder previously shall have given to the Trustee written notice
of an Event of Default with respect to Notes and of the continuance thereof,
as
hereinbefore provided, and (b) the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding shall have made written request
upon the Trustee to institute such action or proceedings in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and (c) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall have failed to institute
any such action or proceeding, and (d) no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 6.09.
For the protection and enforcement of the provisions of this Section, each
and
every Noteholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
|
Section
6.07.
|
Right
of Noteholders To Institute Certain Suits
.
|
Notwithstanding
any other provision in this Indenture and any provision of any Note, the right
of any Holder of any Note to receive payment of the principal of and interest
on
such Note on or after the respective due dates expressed in such Note or the
applicable redemption dates provided for in such Note, or to institute suit
for
the enforcement of any such payment on or after such respective dates, shall
not
be impaired or affected without the consent of such Holder.
|
Section
6.08.
|
Powers
and Remedies Cumulative; Delay or Omission Not Waiver of
Default
.
|
Except
as
provided in Section 6.06, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Notes is intended to be exclusive of any
other right or remedy and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
No
delay
or omission of the Trustee or of any Holder of Notes to exercise any right
or
remedy accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or remedy or shall be construed to be a waiver
of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Indenture, any Note or law to the Trustee or to the Holders of
Notes may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or, subject to Section 6.06, by the Holders of
Notes.
|
Section
6.09.
|
Control
by Holders of Notes
.
|
The
Holders of a majority in aggregate principal amount of the Notes affected at
the
time outstanding shall have the right to direct the time, method and place
of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to the Notes by this
Indenture;
provided
that
such direction shall not be otherwise than in accordance with law and the
provisions of this Indenture; and
provided
further
,
that
(subject to the provisions of Section 7.01) the Trustee shall have the right
to
decline to follow any such direction if (a) the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken; or (b) if the Trustee by its board of directors, the
executive committee or a trust committee of directors or Responsible Officers
of
the Trustee shall determine in good faith that the action or proceedings so
directed would involve the Trustee in personal liability; or (c) if the Trustee
in good faith shall so determine that the actions or forbearances specified
in
or pursuant to such direction would be unduly prejudicial to the interests
of
Holders of the Notes not joining in the giving of said direction, it being
understood that (subject to Section 7.01) the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly prejudicial
to
such Holders.
Nothing
in this Indenture shall impair the right of the Trustee in its discretion to
take any action deemed proper by the Trustee that is not inconsistent with
such direction or directions by Noteholders.
|
Section
6.10.
|
Waiver
of Past Defaults
.
|
Prior
to
the declaration of acceleration of the maturity of the Notes as provided in
Section 6.01, the Holders of a majority in aggregate principal amount of the
Notes at the time outstanding may on behalf of the Holders of all the Notes
waive any past default or Event of Default described in Section 6.01 and its
consequences, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Note affected. In the case of any such waiver, the Company, the Trustee and
the
Holders of all the Notes shall be restored to their former positions and rights
hereunder, respectively, and such default shall cease to exist and be deemed
to
have been cured and not to have occurred for purposes of this Indenture; but
no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
|
Section
6.11.
|
Right
of Court To Require Filing of Undertaking To Pay Costs
.
|
All
parties to this Indenture agree, and each Holder of any Note by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken, suffered
or
omitted by it as Trustee, the filing by any party litigant in such suit of
an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 6.11 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder or group of Noteholders
holding in the aggregate more than 10% in aggregate principal amount of the
Notes, or to any suit instituted by any Noteholder for the enforcement of the
payment of the principal of or interest on any Note on or after the due date
expressed in such Note or any date fixed for redemption.
TRUSTEE
(a)
If
an
Event of Default has occurred and is continuing, the Trustee shall exercise
such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in 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:
(1)
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
(2)
in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, 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:
(1)
this
paragraph does not limit the effect of paragraph (b) of this
Section;
(2)
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
(3)
the
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it pursuant to Section
6.09 hereof.
(d)
Whether
or not therein expressly so provided, every provision of this Indenture that
in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this
Section 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
Holder, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or
expense.
(f)
The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by
law.
Subject
to TIA Section 315:
(a)
The
Trustee may conclusively rely 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 any such 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 and the written 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 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.
(d)
Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an Officer
of the Company.
(e)
The
Trustee shall not be bound to make investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture or other paper
or
document, but the Trustee, in its discretion, may make such further inquiry
or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney.
(f)
The
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event that is in fact such a Default or Event
of Default is received by a Responsible Officer of the Trustee at the Corporate
Trust Office of the Trustee from the Company or the Holders of 25% in aggregate
principal amount of the outstanding Notes, and such notice references the
specific Default or Event of Default, the Notes and this Indenture.
(g)
The
Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder.
(h)
The
Trustee shall have no duty to inquire as to the performance of the Company’s
covenants herein.
(i)
The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
|
Section
7.03.
|
Individual
Rights of Trustee
.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the Company
with the same rights it would have if it were not Trustee. However, in the
event
that the Trustee acquires any conflicting interest 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 shall also be subject to Sections 7.10 and 7.11 hereof.
|
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 or the Notes, it shall not be accountable
for the Company’s use of the proceeds from the Notes or any money paid to the
Company or upon the Company’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 of authentication.
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 in payment of principal of, premium, if any, 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
.
|
Within
60
days after each May 15 beginning with the May 15 following the date of this
Indenture, 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 §313(a) (but if no event described in TIA §313(a) has occurred within
the 12 months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA §313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA
§313(c).
A
copy of
each report at the time of its mailing to the Holders shall be mailed to the
Company and filed with the Commission and each stock exchange on which the
Notes
are listed in accordance with TIA §313(d). The Company shall promptly
notify the Trustee when the Notes are listed on any stock exchange and any
delisting thereof.
|
Section
7.07.
|
Compensation
and Indemnity
.
|
The
Company shall pay to the Trustee from time to time reasonable compensation
for
its acceptance of this Indenture and services hereunder. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of
an
express trust. The Company shall reimburse the Trustee 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.
The
Company shall indemnify the Trustee (in its capacity as Trustee) or any
predecessor Trustee (in its capacity as Trustee) against any and all losses,
claims, damages, penalties, fines, liabilities or expenses, including incidental
and out-of-pocket expenses and reasonable attorney
’
s fees
(for
purposes of this Article, “
losses
”)
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 Company (including this Section
7.07) and defending itself against any claim (whether asserted by the Company
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
such
losses may be attributable to its negligence or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company
of
its obligations under this Section 7.07, if and only to the extent the Company
has not been prejudiced thereby. The Company shall defend the claim, and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
if
the Trustee has been reasonably advised by counsel that there may be one or
more
legal defenses available to it that are different from or additional to those
available to the Company and in the reasonable judgment of such counsel it
is
advisable for the Trustee to engage separate counsel, and the Company shall
pay
the reasonable fees and expenses of such counsel. The Company need not pay
for any settlement made without its consent, which consent shall not be
unreasonably withheld. The Company need not reimburse any expense or indemnify
against any loss incurred by the Trustee through the Trustee’s own willful
misconduct, gross negligence or bad faith.
The
obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture, the resignation or removal of
the
Trustee and payment in full of the Notes through the expiration of the
applicable statute of limitations.
To
secure
the Company’s payment obligations in this Section, 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 of premium, if any, and interest
on particular Notes. Such Lien shall survive the satisfaction and discharge
of
this Indenture.
When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(d) or (e), 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.
|
Section
7.08.
|
Replacement
of Trustee
.
|
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.
The
Trustee may resign in writing at any time upon 30 days’ prior notice to the
Company and be discharged from the trust hereby created by so notifying the
Company. The Holders of a majority in aggregate principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company may remove the Trustee if:
(a)
the
Trustee fails to comply with Section 7.10 hereof;
(b)
the
Trustee is adjudged bankrupt or insolvent or an order for relief is entered
with
respect to the Trustee under any Bankruptcy Law;
(c)
a
Custodian or public officer takes charge of the Trustee or its property;
or
(d)
the
Trustee becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason (the Trustee in such event being referred to herein as the
retiring Trustee), the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the
Company.
If
a
successor Trustee does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of
at
least 10% in aggregate principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
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 hereof, such Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Company. 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.
Subject to the Lien provided for in Section 7.07 hereof, the retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee;
provided
,
however
,
that
all sums owing to the Trustee hereunder shall have been paid. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 hereof shall continue for the benefit of the
retiring Trustee.
In
the
case of an appointment hereunder of a separate or successor Trustee with respect
to the Notes, the Company, any retiring Trustee and each successor or separate
Trustee with respect to the Notes shall execute and deliver an indenture
supplemental hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Notes as to which any such retiring
Trustee is not retiring shall continue to be vested in such retiring Trustee
and
(2) that shall add to or change any of the provisions of this Indenture as
shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or
in such supplemental indenture shall constitute such Trustee co-trustee of
the
same trust and that each such separate, retiring or successor Trustee shall
be
Trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any such other 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 corporation or banking
association, the successor corporation or banking association without any
further act shall, if such successor corporation or banking association is
otherwise eligible hereunder, be the successor Trustee.
|
Section
7.10.
|
Eligibility;
Disqualification
.
|
There
shall at all times be a Trustee hereunder that is a Person 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 trustee power, 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 (or a wholly-owned
subsidiary of a bank or trust company, or of a bank holding company, the
principal subsidiary of which is a bank or trust company having 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
§310(a)(1), (2) and (5). The Trustee is subject to TIA §310(b).
|
Section
7.11.
|
Preferential
Collection of Claims Against Company
.
|
The
Trustee is subject to TIA §311(a), excluding any creditor relationship listed in
TIA §311(b). A Trustee who has resigned or been removed shall be subject to TIA
§ 311(a) to the extent indicated therein.
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
|
Section 8.01.
|
Option
To Effect Legal Defeasance or Covenant Defeasance
.
|
The
Company may, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, at any time, elect to have either Section
8.02 or 8.03 hereof applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.
|
Section
8.02.
|
Legal
Defeasance and Discharge
.
|
Upon
the
Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.02, the Company 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 on the date the conditions
set
forth below are satisfied (hereinafter, “
Legal
Defeasance
”).
For
this purpose, Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be outstanding only for the purposes
of Section 8.05 hereof and the other Sections of this Indenture referred to
in
clauses (a) and (b) below, and to have satisfied all of its obligations under
such Notes and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments delivered to it by the Company
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 payments in respect of the principal of, premium,
if any, and interest on such Notes when such payments are due from the trust
referred to below; (b) the Company’s obligations with respect to the Notes
concerning mutilated, destroyed, lost or stolen Notes and the maintenance of
an
office or agency for payment and money for security payments held in trust;
(c)
the rights, powers, trusts, duties and immunities of the Trustee, and the
Company’s obligations in connection therewith; and (d) the Legal Defeasance
provisions of this Indenture. Subject to compliance with this Article 8, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
|
Section
8.03.
|
Covenant
Defeasance
.
|
Upon
the
Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, the Company shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be released from its obligations under the
covenants contained in Articles 4 and 5 with respect to the 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 Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant, or by reason of any reference in any such covenant
to any other provision herein or in any other document, and such omission to
comply shall not constitute a Default or an Event of Default under Section
6.01
hereof, but, except as specified above, the remainder of this Indenture and
such
Notes shall be unaffected thereby. In addition, upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(d) and 6.01(e) hereof shall not constitute Events of Default or defaults
hereunder.
|
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 hereof to the outstanding Notes:
In
order
to exercise either Legal Defeasance or Covenant Defeasance:
(a)
the
Company must irrevocably deposit, or cause to be deposited, with the Trustee,
in
trust, for the benefit of the Holders of the Notes, cash in U.S. dollars,
non-callable U.S. Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm
of
independent public accountants, to pay, without reinvestment, the principal
of,
premium, if any, and interest on the outstanding Notes on the stated maturity
thereof or on the applicable redemption date, as the case may be, and the
Company must specify whether the Notes are being defeased to maturity or to
a
particular redemption date;
(b)
in
the
case of Legal Defeasance, the Company must deliver to the Trustee an Opinion
of
Counsel reasonably acceptable to the Trustee confirming that the Company has
received from, or there has been published by, the Internal Revenue Service
a
ruling, or there has been a change in the applicable United States 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 United States federal income tax purposes
as a result of such Legal Defeasance, and will be subject to United States
federal income tax on the same amounts, in the same manner and at the same
times
as would have been the case if such Legal Defeasance had not
occurred;
(c)
in
the
case of Covenant Defeasance, the Company must deliver 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 United States
federal income tax purposes as a result of such Covenant Defeasance, and such
Holders will be subject to United States federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d)
no
Default or Event of Default shall have occurred and be continuing on the date
of
such deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) or insofar as Events of
Default from bankruptcy or insolvency events are concerned, at any time in
the
period ending on the 91st day after the date of deposit;
(e)
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 (other
than this Indenture) to which the Company or by which the Company is
bound;
(f)
the
Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders
of
the Notes over other creditors of the Company, or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or
others;
(g)
the
Company must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel in the United States reasonably acceptable to the Trustee, each stating
that the conditions precedent provided for or relating to Legal Defeasance
or
Covenant Defeasance, as applicable, in the case of the Officers
’
Certificate,
in
clauses (a) through (f) and, in the case of the Opinion of Counsel, in clauses
(b) and (c) of this paragraph, have been complied with.
|
Section
8.05.
|
Deposited
Money and Government Securities To Be Held in Trust; Other Miscellaneous
Provisions
.
|
Subject
to Section 8.06 hereof, all money and non-callable U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively, and solely for purposes of this Section 8.05, the
“
Trustee
”) pursuant to Section 8.04 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 Company 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, premium, if any,
and
interest, but such money need not be segregated from other funds except to
the
extent required by law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable U.S. Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Notes.
Anything
in this Article 8 to the contrary notwithstanding, the Trustee shall deliver
or
pay to the Company from time to time upon the request of the Company any money
or non-callable U.S. Government Securities held by it as provided in Section
8.04 hereof that, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the
Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are
in excess of the amount thereof that would then be required to be deposited
to
effect an equivalent Legal Defeasance or Covenant Defeasance.
|
Section
8.06.
|
Repayment
to Company
.
|
Any
money
deposited with the Trustee or any Paying Agent, or then held by the Company,
in
trust for the payment of the principal of, premium, if any, or interest on
any
Note and remaining unclaimed for two years after such principal, premium, if
any, or interest has become due and payable shall be paid to the Company at
its
request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as an unsecured creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in
The
New
York Times
and
The
Wall Street Journal
(national edition), notice that such money remains unclaimed and that, after
a
date specified therein, which shall not be less than 30 days from the date
of
such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
If
the
Trustee or Paying Agent is unable to apply any money or non-callable U.S.
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then
the Company’s obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.02 or
8.03 hereof 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 hereof, as the case
may
be;
provided
,
however
, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
The
Trustee’s rights under this Article 8 shall survive termination of this
Indenture.
AMENDMENT,
SUPPLEMENT AND WAIVER
|
Section
9.01.
|
Supplemental
Indentures Without Consent of Noteholders
.
|
The
Company, when authorized by a Board Resolution (which resolution may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an
Officers’ Certificate), and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the TIA as in force at the date of the execution thereof)
for one or more of the following purposes:
(a)
to
convey, transfer, assign, mortgage or pledge to the Trustee as security for
the
Notes any property or assets;
(b)
to
evidence the succession of another Person to the Company, or successive
successions, and the assumption by the successor Person of the covenants,
agreements and obligations of the Company pursuant to Article 5;
(c)
to
add to
the covenants of the Company such further covenants, restrictions, conditions
or
provisions as the Company and the Trustee shall consider to be for the
protection of the Holders of the Notes, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture
as
herein set forth;
provided,
however
,
that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case
of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an
Event
of Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Notes to waive such an Event of Default;
(d)
to
cure
any ambiguity or to correct or supplement any provision contained herein or
in
any supplemental indenture that may be defective or inconsistent with any
other provision contained herein or in any supplemental indenture, or to make
any other provisions as the Company may deem necessary or desirable;
provided,
however
,
that no
such provisions shall materially adversely affect the interests of the Holders
of the Notes;
(e)
to
modify, eliminate or add to the provisions of this Indenture to such extent
as
shall be necessary to effect the qualification of this Indenture under the
TIA,
or under any similar federal statute hereafter enacted, and to add to this
Indenture such other provisions as may be expressly permitted by the TIA,
excluding,
however
,
the
provisions referred to in Section 316(a)(2) of the TIA as in effect at the
date
as of which this instrument was executed or any corresponding provision provided
for in any similar federal statute hereafter enacted;
(f)
to
evidence and provide for the acceptance of appointment hereunder by a successor
trustee with respect to the Notes and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant to
the
requirements of Section 6.11.
The
Trustee is hereby authorized to join with the Company in the execution of any
such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section may be
executed without the consent of the Holders of any of the Notes then
outstanding, notwithstanding any of the provisions of Section 9.02.
|
Section
9.02.
|
Supplemental
Indentures with Consent of Noteholders
.
|
With
the
consent of the Holders of not less than a majority in aggregate principal amount
of the Notes then outstanding affected by such supplemental indenture, the
Company, when authorized by a Board Resolution (which resolution may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an
Officers’ Certificate), and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the TIA as in force at the date of execution thereof)
for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or
of
modifying in any manner the rights of the Holders of the Notes;
provided
,
that no
such supplemental indenture shall (a) extend the stated final maturity of the
principal of any Note, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest, if any, thereon, or reduce
or
alter the method of computation of any amount payable on redemption, repayment
or purchase by the Company thereof (or the time at which any such redemption,
repayment or purchase may be made), or make the principal thereof, or interest,
if any, thereon payable in any coin or currency other than that provided in
the
Notes or in accordance with the terms of the Notes, or impair or affect the
right of any Noteholder to institute suit for the payment thereof or, if the
Notes provide therefor, any right of repayment or purchase at the option of
the
Noteholder, in each case without the consent of the Holder of each Note so
affected, or (b) reduce the aforesaid percentage of Notes, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Note so affected. No consent of any Holder of
any
Note shall be necessary under this Section 9.02 to permit the Trustee and the
Company to execute supplemental indentures pursuant to Sections 9.01 and
9.02.
Upon
the
request of the Company, accompanied by a copy of a resolution of the Board
of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Officers’ Certificate) certified by the
secretary or an assistant secretary of the Company authorizing the execution
of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the Holders of the Notes as aforesaid, the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may
at
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It
shall
not be necessary for the consent of the Noteholders under this Section 9.02
to
approve the particular form of any proposed supplemental indenture, but it
shall
be sufficient if such consent shall approve the substance thereof.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section 9.02, the Company (or the Trustee
at
the request and expense of the Company) shall give notice thereof to the Holders
of then outstanding Notes affected thereby, as provided in Section 11.02. Any
failure of the Company to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
|
Section
9.03.
|
Effect
of Supplemental Indenture
.
|
Upon
the
execution of any supplemental indenture pursuant to the provisions hereof,
this
Indenture shall be and shall be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Notes affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and
all
the terms and conditions of any such supplemental indenture shall be and shall
be deemed to be part of the terms and conditions of this Indenture for any
and
all purposes.
|
Section
9.04.
|
Documents
To Be Given to Trustee
.
|
The
Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be entitled
to receive an Officers’ Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article
9
complies with the applicable provisions of this Indenture and that all
conditions precedent to the execution and delivery of such supplemental
indenture have been satisfied.
|
Section
9.05.
|
Notation
on Securities in Respect of Supplemental Indentures
.
|
Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article 9 may bear a notation in form
approved by the Trustee as to any matter provided for by such supplemental
indenture or as to any action taken by Noteholders. If the Company or the
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Company, to any modification of this Indenture contained
in any such supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Notes then
outstanding.
|
Section
9.06.
|
Conformity
with the TIA
.
|
Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect if this Indenture shall then be
qualified under the TIA.
SATISFACTION
AND DISCHARGE
|
Section
10.01.
|
Satisfaction
and Discharge
.
|
This
Indenture shall be discharged and shall cease to be of further effect, except
as
to surviving rights of registration of transfer or exchange of the Notes, as
to
all Notes issued hereunder, when:
(a)
either:
(i)
a
ll
Notes
that have been previously authenticated and delivered (except lost, stolen
or
destroyed Notes that have been replaced or paid, and Notes for whose payment
money has previously been deposited in trust or segregated and held in trust
by
the Company and is thereafter repaid to the Company or discharged from the
trust) have been delivered to the Trustee for cancellation; or
(ii)
(A)
all Notes that have not been previously delivered to the Trustee for
cancellation, have become due and payable by their terms, will become due and
payable at their Stated Maturity within one year, have been called for
redemption, or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name and at the expense of the Company, and the Company
has irrevocably deposited or caused to be deposited with the Trustee, as trust
funds in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable U.S. Government Securities, or a combination thereof, in such
amounts as shall be sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire Indebtedness on the Notes not
previously delivered to the Trustee for cancellation or redemption for
principal, premium, if any, and interest on the Notes to the date of deposit,
in
the case of Notes that have become due and payable, or to the Stated Maturity
or
redemption date, as the case may be; (B) the Company has paid all other sums
payable by the Company with respect to the Notes under this Indenture; and
(C)
the Company has delivered irrevocable instructions to the Trustee to apply
the
deposited money toward the payment of the Notes at Stated Maturity or on the
redemption date, as the case may be.
In
the
case of either clause (i) or (ii):
(b)
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 Company is a party or by which the Company is bound;
and
(c)
the
Company shall have delivered to the Trustee an Officers’ Certificate and Opinion
of Counsel stating that all conditions precedent relating to the satisfaction
and discharge of this Indenture have been satisfied.
|
Section
10.02.
|
Deposited
Cash and U.S. Government Securities To Be Held in Trust; Other
Miscellaneous Provisions
.
|
Subject
to Section 10.03, all cash and non-callable U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 10.02, the
“
Trustee
”) pursuant to Section 10.01 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 Company 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, premium, if any,
and
interest, but such cash and securities need not be segregated from other funds
except to the extent required by law.
|
Section
10.03.
|
Repayment
to Company
.
|
Any
cash
or non-callable U.S. Government Securities deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of, premium, if any, or interest on, any Note and remaining unclaimed
for two years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Company on its request or (if then held
by
the Company) shall be discharged from such trust; and the Holder shall
thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect
to
such cash and securities, and all liability of the Company as trustee thereof,
shall thereupon cease;
provided,
however
,
that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
The
New York Times
and
The
Wall Street Journal
(national
edition), notice that such cash and securities remain 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 cash and
securities then remaining shall be repaid to the Company.
MISCELLANEOUS
If
any
provision of this Indenture limits, qualifies or conflicts with another
provision that is required to be included in this Indenture by the TIA, the
provision required by the TIA shall control.
Any
notice or communication by the Company or the Trustee to the other is duly
given
if in writing and delivered in person or mailed by first class mail (registered
or certified, return receipt requested), facsimile transmission or overnight
air
courier guaranteeing next-day delivery, to the other’s address:
If
to the
Company:
Citizens
Communications Company
3
High
Ridge Park
Stamford,
Connecticut 06905
Attention:
General Counsel
Telecopier
No.: (203) 614-4651
With
a
copy to:
Cravath,
Swaine & Moore LLP
825
Eighth Avenue
New
York,
New York 10019
Attention:
Timothy G. Massad
Telecopier
No.: (212) 474-3700
If
to the
Trustee:
The
Bank
of New York
4
New
York Plaza, 15th Floor
New
York,
New York 10004
Attention:
Vice President
Telecopier
No.: (212) 623-6797
The
Company or the Trustee, by notice to the other, may designate additional or
different addresses for subsequent notices or communications.
All
notices and communications (other than those sent to the Trustee or Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt is acknowledged, if sent by facsimile
transmission; and the next Business Day after timely delivery to the courier,
if
sent by overnight air courier guaranteeing next-day delivery.
Any
notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next-day delivery to its address shown on the Security
Register. Any notice or communication shall also be so mailed to any
Person described in TIA §313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect therein shall not
affect its sufficiency with respect to other Holders.
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.
If
the
Company mails a notice or communication to Holders, it shall mail a copy to
the
Trustee and each Agent at the same time.
|
Section
11.03.
|
Communication
by Holders of Notes with Other Holders of Notes
.
|
Holders
may communicate pursuant to TIA §312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA §312(c).
|
Section
11.04.
|
Certificate
and Opinion as to Conditions Precedent
.
|
Upon
any
request or application by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the
Trustee:
(a)
an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 11.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b)
an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 11.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been complied with.
|
Section
11.05.
|
Statements
Required in Certificate or Opinion
.
|
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant
to
TIA §314(a)(4)) shall comply with the provisions of TIA §314(e) and shall
include:
(a)
a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(b)
a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(c)
a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable such Person to express
an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d)
a
statement as to whether or not, in the opinion of such Person, such condition
or
covenant has been complied with.
With
respect to matters of fact, an Opinion of Counsel may rely on an Officers’
Certificate, certificates of public officials or reports or opinions of
experts.
|
Section
11.06.
|
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
11.07.
|
No
Personal Liability of Directors, Officers, Employees and
Stockholders
.
|
No
past,
present or future director, officer, employee, incorporator or stockholder
of
the Company, as such, shall have any liability for any obligations of the
Company under the Notes or this Indenture, or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes
by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. The waiver and release
may not be effective to waive or release liabilities under the federal
securities laws.
THIS
INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS
OF
THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS.
|
Section
11.09.
|
No
Adverse Interpretation of Other Agreements
.
|
This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
All
covenants and agreements of the Company in this Indenture and the Notes shall
bind its successors. All covenants and agreements of the Trustee in this
Indenture shall bind its successors.
In
case
any provision in this Indenture or in 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
11.12.
|
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
11.13.
|
Table
of Contents, Headings, etc
.
|
The
Table
of Contents, Cross-Reference Table and headings in 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.
|
Section
11.14.
|
Qualification
of this Indenture.
|
The
Company shall qualify this Indenture under the TIA in accordance with the terms
and conditions of any Registration Rights Agreement and shall pay all reasonable
costs and expenses (including attorneys’ fees and expenses for the Company, the
Trustee and the Holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the Notes
and printing this Indenture and the Notes. The Trustee shall be entitled to
receive from the Company any such Officers’ Certificates, Opinions of Counsel or
other documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
[Signatures
on following pages]
Dated
as
of December 22, 2006
|
|
|
|
|
|
COMPANY:
CITIZENS
COMMUNICATIONS COMPANY
|
|
|
|
|
|
|
By:
|
/s/ Donald R. Shassian
|
|
|
Name:
Donald
R.
Shassian
|
|
|
Title:
Chief Financial
Officer
|
|
|
|
|
|
|
TRUSTEE:
THE
BANK OF NEW YORK
|
|
|
|
|
|
|
By:
|
/s/ James D. Heaney
|
|
|
Name:
James
D.
Heaney
|
|
|
Title:
Vice
President
|
EXHIBIT
A
FORM
OF NOTE
[Insert
the Global Note Legend, if applicable, pursuant to the terms of the
Indenture.]
[Insert
the Private Placement Legend, if applicable, pursuant to the terms of the
Indenture.]
Citizens
Communications Company
|
No.
|
7.875%
SENIOR NOTE DUE 2027
|
|
ORIGINAL
ISSUE DATE: December 22, 2006
|
|
$[ ],000,000
|
CUSIP:
[
]
|
Citizens
Communications Company, a corporation duly organized and existing under the
laws
of the State of Delaware (the “
Company
”),
for
value received, hereby promises to pay Cede & Co., or its registered
assigns, the principal sum of $ [ ],000,000 ([ ] hundred million dollars) on
January 15, 2027, at the Corporate Trust Office of The Bank of New York, in
such
coin or currency of the United States of America as at the time of payment
shall
be legal tender for the payment of public and private debts, and to pay
semi-annually in arrears on January 15 and July 15 of each year (each, an
“
Interest
Payment Date
”),
commencing July 15, 2007, and at maturity (or on any redemption or repayment
date) the amount of interest on said principal sum at said office or agency,
in
like coin or currency, at the rate per annum specified in the title of this
Note, from December 22, 2006 or from the most recent Interest Payment Date
to
which interest has been paid or duly provided for until said principal sum
has
been paid or duly provided for. Interest shall be computed on the basis of
a
360-day year consisting of twelve 30-day months.
The
interest payable on any Interest Payment Date, which is punctually paid or
duly
provided for on such Interest Payment Date, will be paid to the person in whose
name this Note (or one or more predecessor Notes) is registered at the close
of
business on January 1 or July 1 (in each case, whether or not a Business Day),
as the case may be (each, a “
Regular
Record Date
”),
immediately preceding such Interest Payment Date. Interest payable on this
Note,
which is not punctually paid or duly provided for on any Interest Payment Date
therefor, shall forthwith cease to be payable to the Person in whose name this
Note is registered at the close of business on the Regular Record Date
immediately preceding such Interest Payment Date, and such interest may either
(i) be paid to the Person in whose name this Note is registered at the close
of
business on a special record date to be established for such payment by the
Trustee or (ii) be paid in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, all
as
more fully provided in the Indenture referred to on the reverse
hereof.
Payment
of the principal of this Note, any premium and the interest due at maturity
(or
on any redemption or repayment date) will be made in immediately available
funds
upon surrender of this Note at the office or agency of the Paying Agent, as
defined on the reverse hereof, maintained for that purpose in the Borough of
Manhattan, The City of New York, or at such other paying agency as the Company
may determine. At the option of the Company, interest on the Notes may be paid
(i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the register of Holders of the Notes or (ii) at the
expense of the Company, by wire transfer to an account maintained by the Person
entitled thereto as specified in writing to The Bank of New York, as trustee,
by
such Person by the applicable record date of the Notes.
Reference
is made to the further provisions of this Note set forth on the reverse hereof.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This
Note
shall not be valid or become obligatory for any purpose until the certificate
of
authentication hereon shall have been signed by the Trustee under the Indenture
referred to on the reverse hereof.
IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or
by
facsimile by its duly authorized officer.
|
|
|
|
|
|
CITIZENS
COMMUNICATIONS COMPANY
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
This
is
one of the Global
Notes
referred to in the
within-mentioned
Indenture:
THE
BANK
OF NEW YORK,
as
Trustee
Dated
December 22, 2006
[REVERSE
OF NOTE]
NOTE
DUE
1.
INDENTURE.
(a) This Note is one of a duly authorized issue of senior debt securities of
the
Company (hereinafter called the “
Notes
”)
of a
series designated as the 7.875% Senior Notes Due 2027 of the Company, in an
aggregate principal amount of $400,000,000, all issued or to be issued under
and
pursuant to the Indenture, dated as of December 22, 2006 (the “
Indenture
”),
between the Company and The Bank of New York (the “
Trustee
”,
which
term includes any successor trustee under the Indenture), to which Indenture
and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Notes, and the
terms upon which the Notes are, and are to be, authenticated and delivered.
The
Company has appointed The Bank of New York at its principal corporate trust
office in The City of New York as the paying agent (the “
Paying
Agent
”,
which
term includes any additional or successor Paying Agent appointed by the Company)
with respect to the Notes. To the extent not inconsistent herewith, the terms
of
the Indenture are hereby incorporated by reference herein.
(b)
All
capitalized terms used in this Note which are defined in the Indenture and
not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
2.
AMENDMENTS
AND WAIVERS. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the
Company and the rights of the Holders of the Notes to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Notes at the time outstanding.
The Indenture also contains provisions permitting the Holders of a majority
in
principal amount of the Notes at the time outstanding to waive compliance by
the
Company with certain provisions of the Indenture and certain past defaults
under
the Indenture and their consequences.
3.
OBLIGATION
TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. No reference herein to the
Indenture and no provision of this Note or of the Indenture shall alter or
impair the obligation of the Company or any other obligor on the Notes, which
is
absolute and unconditional, to pay the principal of, premium, if any, and
interest (and Special Interest, if any, as provided in Section 8 of the
Registration Rights Agreement) on this Note in the manner, at the respective
times, at the rate, at the place and in the coin or currency herein
prescribed.
4.
OPTIONAL
REDEMPTION. This Note is redeemable at the Company’s election, in whole or in
part, at any time at a redemption price equal to the greater of:
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(1)
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100% of the principal amount of the Notes to be redeemed
then outstanding; and
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(2)
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as
determined by an Independent Investment Banker, the sum of the present
values of the remaining scheduled payments of principal and interest
on
the Notes to be redeemed (not including any portion of such payments
of
interest accrued to the date of redemption) discounted to the redemption
date on a semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at the Adjusted Treasury Rate, plus 50 basis
points;
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plus
,
in either of the above cases, accrued and unpaid interest to the date of
redemption on the Notes to be redeemed.
If
the
Company selects a redemption date that is on or after a Regular Record Date
and
on or before the related interest payment date, the accrued and unpaid interest,
if any, shall be paid to the person in whose name the Note is registered at
the
close of business on such record date.
The
Company will mail a notice of redemption at least 30 days, but not more than
60
days, before the redemption date to each Holder of the Notes to be
redeemed.
Unless
the Company defaults in payment of the redemption price, on and after the
redemption date, interest will cease to accrue on the Notes or portions thereof
called for redemption.
For
purposes of the foregoing, the following terms shall have the following
meanings:
“
Adjusted Treasury Rate
”
means,
with respect to any redemption date:
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(1)
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the yield, under the heading which represents the
average
for the immediately preceding week, appearing in the most recently
published statistical release designated “H.15(519)” or any successor
publication which is published weekly by the Board of Governors of
the
Federal Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity under
the
caption “Treasury Constant Maturities,” for the maturity corresponding to
the Comparable Treasury Issue (as defined below) (if no maturity
is within
three months before or after the Remaining Life (as defined below),
yields
for the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Adjusted Treasury
Rate shall be interpolated or extrapolated from such yields on a
straight
line basis, rounding to the nearest month); or
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(2)
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if
such release (or any successor release) is not published during the
week
preceding the calculation date or does not contain such yields, the
rate
per annum equal to the semi-annual equivalent yield to maturity of
the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal
to the Comparable Treasury Price (as defined below) for such redemption
date.
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The
Adjusted Treasury Rate shall be calculated on the third Business Day preceding
the redemption date.
“
Comparable
Treasury Issue
”
means
the United States Treasury security selected by an Independent Investment Banker
(as defined below) as having a maturity comparable to the remaining term of
the
Notes that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Notes (“
Remaining
Life
”).
“
Comparable
Treasury Price
”
means,
for any redemption date, (1) the average of four Reference Treasury Dealer
Quotations (as defined below) for such redemption date, after excluding the
highest and lowest Reference Treasury Dealer Quotations, or (2) if the
Independent Investment Banker obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such quotations.
“
Independent
Investment Banker
”
means
one of the Reference Treasury Dealers appointed by the Company.
“
Reference
Treasury Dealer
”
means
any of the primary U.S. Government securities dealers in New York
City.
“
Reference
Treasury Dealer Quotations
”
means,
with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Independent Investment Banker, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Independent
Investment Banker at 5:00 p.m., New York City time, on the third Business Day
preceding such redemption date.
5.
REPURCHASE
AT OPTION OF HOLDER. Upon the occurrence of a Change of Control Triggering
Event, and subject to certain conditions set forth in the Indenture, the Company
will be required to offer to purchase all of the outstanding Notes at a purchase
price equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, thereon to the date of repurchase.
6.
CERTAIN
COVENANTS. The Indenture restricts the ability of the Company and its
Subsidiaries to incur indebtedness at the Company’s Subsidiaries, create certain
liens and merge or consolidate with other companies. These covenants are subject
to the covenant defeasance procedures outlined in the Indenture.
7.
EFFECT
OF
EVENT OF DEFAULT. If an Event of Default shall have occurred and be continuing
under the Indenture, the principal hereof may be declared, and upon such
declaration shall become, due and payable in the manner, with the effect and
subject to the conditions provided in the Indenture.
8.
DEFEASANCE.
The Indenture contains provisions for defeasance and covenant defeasance at
any
time of the Indebtedness on this Note upon compliance by the Company with
certain conditions set forth therein.
9.
DENOMINATIONS;
EXCHANGES. (a) The Notes are issuable in registered form without coupons
in denominations of $1,000 and any multiple of $1,000 at the office or agency
of
the Company in the Borough of Manhattan, The City of New York, and in the manner
and, subject to the limitations provided in the Indenture, Notes may be
exchanged for a like aggregate principal amount of Notes of other authorized
denomination.
10.
HOLDER
AS
OWNER. Prior to the due presentment of this Note for registration of transfer,
the Company, the Trustee and any Agent of the Company or the Trustee may deem
and treat the registered holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any notation
of
ownership or other writing hereon), for the purpose of receiving payment of,
or
on account of, the principal hereof and, subject to the provisions on the face
hereof, interest hereon, and for all other purposes, and none of the Company
or
the Trustee or any Agent of the Company, the Trustee shall be affected by any
notice to the contrary.
11.
NO
LIABILITY OF CERTAIN PERSONS. No recourse under or upon any obligation, covenant
or agreement of the Company in the Indenture or any indenture supplemental
thereto or in any Note, or because of the creation of any Indebtedness
represented thereby, shall be had against any past, present or future
incorporator, shareholder, officer or director, as such, of the Company or
of
any successor, either directly or through the Company, or any successor
corporation, under any constitution, statute or rule of law or by the
enforcement of any assessment or otherwise, all such liability being expressly
waived and released by the acceptance hereof and as part of the consideration
for the issue hereof.
12.
LOSS,
THEFT OR DESTRUCTION. In case any Note shall at any time become mutilated,
defaced or be destroyed, lost or stolen and such Note or evidence of the loss,
theft or destruction thereof (together with the indemnity hereinafter referred
to and such other documents or proof as maybe required in the premises) shall
be
delivered to the Trustee, a new Note of like tenor will be issued by the Company
in exchange for the Note so mutilated or defaced, or in lieu of the Note so
destroyed or lost or stolen, but, in case of any destroyed or lost or stolen
Note, only upon receipt of evidence satisfactory to the Trustee and the Company
that such Note was destroyed or lost or stolen and, if required by the Company
or the Trustee, upon receipt also of indemnity satisfactory to each of them.
All
expenses and reasonable charges associated with procuring such indemnity and
with the preparation, authentication and delivery of a new Note shall be borne
by the owner of the Note mutilated, defaced, destroyed, lost or
stolen.
13.
ADDITIONAL
RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.
In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Restricted Global Notes and Restricted Definitive Notes that are Initial
Notes shall have all the rights set forth in the Registration Rights Agreement,
dated as of
December
22,
2006,
between the Company and the parties named on the signature pages thereto or,
in
the case of Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have the rights set forth in one or more registration
rights agreements, if any, among the Company and the other parties thereto,
relating to rights given by the Company to the purchasers of any Additional
Notes.
14.
GOVERNING
LAW. This Note shall be governed by, and construed in accordance with, the
laws
of the State of New York without regard to conflict of law provisions
thereof.
ASSIGNMENT
FORM
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto:
PLEASE
INSERT SOCIAL SECURITY NUMBER OR TAXPAYER IDENTIFICATION NUMBER OF
ASSIGNEE
PLEASE
PRINT OR TYPE NAME AND ADDRESS,
INCLUDING
ZIP CODE, OF ASSIGNEE
the
within Note of Citizens Communications Company and all rights thereunder and
hereby irrevocably constitutes and appoints such person attorney to transfer
such Note on the books of Citizens Communications Company, with full power
of
substitution in the premises.
Dated:
Signature
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NOTICE:
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THE
SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON
THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE WHATSOEVER. THE SIGNATURE SHOULD BE
MEDALLION
GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY, A MEMBER ORGANIZATION
OF
THE NEW YORK STOCK EXCHANGE.
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Tax
Identification No.:
Signature
Guarantee:
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:
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Date
of Exchange
|
Amount
of
Decrease
in
Principal
Amount
of
this Global Note
|
Amount
of Increase
in
Principal Amount
of
this Global Note
|
Principal
Amount
of
this Global Note
following
such
Decrease
(or
Increase)
|
Signature
of
authorized
Signatory
of
Trustee or
Note
Custodian
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EXHIBIT
B
FORM
OF CERTIFICATE OF TRANSFER
Citizens
Communications Company
3
High
Ridge Park
Stamford,
CT 06905
Attention:
The
Bank
of New York
4
New
York Plaza
15th
Floor
New
York,
NY 10004
Attention:
Corporate Trust Department
Telecopier
No.:
Re:
7.875%
Senior Notes due 2027
Reference
is hereby made to the Indenture, dated as of December 22, 2006 (the
“
Indenture
”),
between Citizens Communications Company, as issuer (the “
Company
”),
and
The Bank of New York, 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 Notes or interest in such Notes specified in Annex
A hereto, in the principal amount of
$[ ] in such Notes
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]
1.
o
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 United States 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.
2.
o
Check
if Transferee will take delivery of a beneficial interest in the 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 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(a) 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) if the
proposed transfer is being made prior to the expiration of the Distribution
Compliance Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). 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 Regulation S Global Note, the Regulation S Temporary
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.
3.
o
Check
and complete if Transferee will take delivery of a beneficial interest in the
IAI Global Note or a Definitive Note pursuant to any provision of the Securities
Act other than 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):
(a)
o
such
Transfer is being effected pursuant to and in accordance with Rule 144 under
the
Securities Act;
or
(b)
o
such
Transfer is being effected to the Company or a Subsidiary thereof;
or
(c)
o
such
Transfer is being effected pursuant to an effective registration statement
under
the Securities Act and in compliance with the prospectus delivery requirements
of the Securities Act;
or
(d)
o
such
Transfer is being effected to an Institutional 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 beneficial interests in a Restricted Global
Note or Restricted Definitive Note 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) if such Transfer
is
in respect of a principal amount of Notes at the time of transfer of less than
$250,000, 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 beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on
the IAI Global Note and/or the Definitive Notes and in the Indenture and the
Securities Act.
4.
o
Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note
.
(a)
o
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.
(b)
o
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 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.
(c)
o
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 Company.
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[Insert
Name of
Transferor]
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By:
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Name:
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Title:
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ANNEX
A
TO CERTIFICATE OF TRANSFER
1.
The
Transferor owns and proposes to transfer the following:
[CHECK
ONE OF (a) OR (b)]
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(a)
|
o
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a
beneficial interest in the:
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(i)
|
o
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144A
Global Note (CUSIP 17453BAQ4); or
|
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(ii)
|
o
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Regulation
S Global Note (CUSIP U1743AAD6); or
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(iii)
|
o
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IAI
Global Note (CUSIP _________); or
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(b)
|
o
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a
Restricted Definitive Note.
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2.
After
the
Transfer, the Transferee will hold:
[CHECK
ONE OF (a), (b) OR (c)]
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(a)
|
o
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a
beneficial interest in the:
|
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(i)
|
o
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144A
Global Note (CUSIP 17453BAQ4); or
|
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(ii)
|
o
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Regulation
S Global Note (CUSIP U1743AAD6); or
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(iii)
|
o
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IAI
Global Note (CUSIP _________), or
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(iv)
|
o
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Unrestricted
Global Note (CUSIP _________); or
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(b)
|
o
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a
Restricted Definitive Note; or
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(c)
|
o
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an
Unrestricted Definitive Note,
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in accordance with the terms of the Indenture.
EXHIBIT
C
FORM
OF CERTIFICATE OF EXCHANGE
Citizens
Communications Company
3
High
Ridge Park
Stamford,
CT 06905
Attention:
The
Bank
of New York
4
New
York Plaza
15th
Floor
New
York,
NY 10004
Attention:
Corporate Trust Department
Telecopier
No.:
Re:
7.875%
Senior Notes due 2027
Reference
is hereby made to the Indenture, dated as of December 22, 2006 (the
“
Indenture
”),
between Citizens Communications Company, as issuer (the “
Company
”),
and
The Bank of New York, 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 Notes or interest in such Notes specified herein,
in the principal amount of
$[ ] in such Notes
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
(a)
o
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, 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
Restricted Global Note 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.
(b)
o
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 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 the Restricted Global Note 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.
(c)
o
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.
(d)
o
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
(a)
o
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,
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.
(b)
o
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 [CIRCLE ONE] 144A Global Note, Regulation S Global
Note, IAI Global Note with an equal principal amount, 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 Definitive Note
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.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
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[Insert
Name of
Transferor]
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By:
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Name:
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Title:
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EXHIBIT
D
FORM
OF CERTIFICATE FROM
ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Citizens
Communications Company
3
High
Ridge Park
Stamford,
CT 06905
Attention:
The
Bank
of New York
4
New
York Plaza
15th
Floor
New
York,
NY 10004
Attention:
Corporate Trust Department
Telecopier
No.:
Re:
7.875%
Senior Notes due 2027
Reference
is hereby made to the Indenture, dated as of December 22, 2006 (the
“
Indenture
”),
between Citizens Communications Company, as issuer (the “
Company
”),
and
The Bank of New York, as 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
a
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 United States 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 will do
so
only (A) to the Company or any subsidiary thereof, (B) in accordance
with Rule 144A under the Securities Act to a “qualified institutional buyer” (as
defined therein), (C) to an institutional “accredited investor” (as defined
below) that, prior to such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to you and to the Company a signed letter substantially
in the form of this letter and, if such transfer is in respect of a principal
amount of Notes, at the time of transfer of less than $250,000, an Opinion
of
Counsel in form reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act, (D) outside the United
States in accordance with Rule 904 of Regulation S under the Securities Act,
(E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) 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 Note from us in a transaction meeting
the requirements of clauses (A) through (E) 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 Company such
certifications, legal opinions and other information as you and the Company
may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear
a
legend to the foregoing effect.
4.
We
are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating
the
merits and risks of our investment in the Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment. We have had access to such financial and other information and
have
been afforded the opportunity to ask such questions of representatives of the
Company and receive answers thereto, as we deem necessary in connection with
our
decision to purchase the Notes.
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 institutional
“accredited investor”) as to each of which we exercise sole investment
discretion and are not acquiring the Notes with a view to any distribution
thereof in a transaction that would violate the Securities Act or the securities
laws of any state of the United States or any other applicable
jurisdiction.
You
and
the Company are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. This letter shall be governed by, and construed in
accordance with, the laws of the State of New York.
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[Insert
Name of
Accredited Investor]
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By:
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Name:
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Title:
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ARTICLE
1.
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
1
|
|
|
Definitions
|
1
|
|
|
Other
Definitions
|
10
|
|
|
Incorporation
by Reference of TIA
|
10
|
|
|
Rules
of Construction
|
11
|
|
|
11
|
|
|
Form
and Dating
|
11
|
|
|
Execution
and Authentication
|
13
|
|
|
Registrar
and Paying Agent
|
13
|
|
|
Paying
Agent To Hold Money in Trust
|
13
|
|
|
Holder
Lists
|
14
|
|
|
Transfer
and Exchange
|
14
|
|
|
Replacement
Notes
|
24
|
|
|
Outstanding
Notes
|
24
|
|
|
Treasury
Notes
|
24
|
|
|
Temporary
Notes
|
25
|
|
|
Cancellation
|
25
|
|
|
Payment
of Interest; Defaulted Interest.
|
25
|
|
|
CUSIP
or ISIN Numbers
|
25
|
|
|
Special
Interest.
|
25
|
|
|
Issuance
of Additional Notes.
|
26
|
|
|
Record
Date
|
26
|
|
|
26
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|
|
Applicability
of Article
|
26
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|
|
Notice
of Redemption; Partial Redemptions
|
26
|
|
|
Payment
of Notes Called for Redemption
|
27
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|
Exclusion
of Certain Securities from Eligibility for Selection for
Redemption
|
28
|
|
|
Optional
Redemption
|
28
|
|
|
Mandatory
Redemption
|
28
|
|
|
29
|
|
|
Payment
of Principal and Interest
|
29
|
|
|
Offices
for Notices and Payments, Etc.
|
29
|
|
|
No
Interest Extension
|
29
|
|
|
Appointments
To Fill Vacancies in Trustee’s Office
|
29
|
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|
TABLE
OF CONTENTS
(continued)
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Page
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|
Provision
as to Paying Agent
|
29
|
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|
Reports
by the Company
|
30
|
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|
Reports
by the Trustee
|
30
|
|
|
Limitation
on Subsidiary Indebtedness
|
31
|
|
|
Limitations
on Liens
|
31
|
|
|
Repurchase
at the Option of Holders Upon a Change of Control Triggering
Event
|
33
|
|
|
Termination
of Certain Covenants
|
34
|
|
|
34
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|
|
Limitation
on Mergers, Consolidations and Sales of Assets
|
34
|
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|
Successor
Corporation To Be Substituted
|
34
|
|
|
Opinion
of Counsel To Be Given Trustee
|
34
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|
|
35
|
|
|
Events
of Default Defined; Acceleration of Maturity; Waiver of
Default
|
35
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|
|
Collection
of Indebtedness by Trustee; Trustee May Prove Debt
|
36
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|
|
Application
of Proceeds
|
38
|
|
|
Suits
for Enforcements
|
38
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|
|
Restoration
of Rights on Abandonment of Proceedings
|
38
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|
Limitation
on Suits by Noteholders
|
38
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|
|
Right
of Noteholders To Institute Certain Suits
|
39
|
|
|
Powers
and Remedies Cumulative; Delay or Omission Not Waiver of
Default
|
39
|
|
|
Control
by Holders of Notes
|
39
|
|
|
Waiver
of Past Defaults
|
40
|
|
|
Right
of Court to Require Filing of Undertaking To Pay Costs
|
40
|
|
|
40
|
|
|
Duties
of Trustee.
|
40
|
|
|
Rights
of Trustee
|
41
|
|
|
Individual
Rights of Trustee
|
42
|
|
|
Trustee’s
Disclaimer
|
42
|
|
|
Notice
of Defaults
|
42
|
|
|
Reports
by Trustee to Holders
|
42
|
|
|
Compensation
and Indemnity
|
42
|
|
|
Replacement
of Trustee
|
43
|
|
|
TABLE
OF CONTENTS
(continued)
|
|
|
|
|
Page
|
|
|
Successor
Trustee by Merger, Etc.
|
44
|
|
|
Eligibility;
Disqualification.
|
44
|
|
|
Preferential
Collection of Claims Against Company.
|
44
|
ARTICLE
8.
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
|
45
|
|
|
Option
To Effect Legal Defeasance or Covenant Defeasance
|
45
|
|
|
Legal
Defeasance and Discharge
|
45
|
|
|
Covenant
Defeasance
|
45
|
|
|
Conditions
to Legal or Covenant Defeasance
|
45
|
|
|
Deposited
Money and Government Securities To Be Held in Trust; Other
Miscellaneous
Provisions
|
46
|
|
|
Repayment
to Company
|
47
|
|
|
Reinstatement
|
47
|
|
|
Survival
|
47
|
|
|
47
|
|
|
Supplemental
Indentures Without Consent of Noteholders
|
47
|
|
|
Supplemental
Indentures With Consent of Noteholders
|
48
|
|
|
Effect
of Supplemental Indenture
|
49
|
|
|
Documents
To Be Given to Trustee
|
49
|
|
|
Notation
on Securities in Respect of Supplemental Indentures
|
49
|
|
|
Conformity with the
TIA
|
50
|
|
|
50
|
|
|
Satisfaction
and Discharge
|
50
|
|
|
Deposited
Cash and U.S. Government Securities To Be Held in Trust; Other
Miscellaneous Provisions
|
50
|
|
|
Repayment
to Company
|
51
|
|
|
51
|
|
|
TIA
Controls
|
51
|
|
|
Notices
|
51
|
|
|
Communication
by Holders of Notes with Other Holders of Notes
|
52
|
|
|
Certificate
and Opinion as to Conditions Precedent
|
52
|
|
|
Statements
Required in Certificate or Opinion
|
52
|
|
|
Rules
by Trustee and Agents
|
53
|
|
|
No
Personal Liability of Directors, Officers, Employees and
Stockholders
|
53
|
|
|
Governing
Law
|
53
|
|
|
No
Adverse Interpretation of Other Agreements
|
53
|
|
|
TABLE
OF CONTENTS
(continued)
|
|
|
|
|
Page
|
|
|
Successors
|
53
|
|
|
Severability
|
53
|
|
|
Counterpart
Originals
|
53
|
|
|
Table
of Contents, Headings, etc.
|
54
|
|
|
Qualification
of this Indenture.
|
54
|
CROSS-REFERENCE
TABLE
|
TIA
Section
Reference
|
|
Indenture
Section
|
|
|
|
|
|
|
|
|
|
310(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
(a)(3)
|
N.A.
|
|
(a)(4)
|
N.A.
|
|
(a)(5)
|
7.10
|
|
(b)
|
7.08,
7.10
|
|
(c)
|
N.A.
|
|
311(a)
|
7.11
|
|
(b)
|
7.11
|
|
(c)
|
N.A.
|
|
312(a)
|
2.05
|
|
(b)
|
10.03
|
|
(c)
|
10.03
|
|
313(a)
|
7.06
|
|
(b)(1)
|
N.A.
|
|
(b)(2)
|
7.06,
7.07
|
|
(c)
|
7.06,
10.02
|
|
(d)
|
7.06
|
|
314(a)
|
4.03,
10.02
|
|
(b)
|
N.A.
|
|
(c)(1)
|
10.04
|
|
(c)(2)
|
10.04
|
|
(c)(3)
|
N.A.
|
|
(d)
|
N.A.
|
|
(e)
|
10.05
|
|
315(a)
|
7.01
|
|
(b)
|
7.05,
10.02
|
|
(c)
|
7.01
|
|
(d)
|
7.01
|
|
(e)
|
6.11
|
|
316(a)
(last sentence)
|
2.09
|
|
(a)(1)(A)
|
6.09
|
|
(a)(1)(B)
|
6.10
|
|
(a)(2)
|
N.A.
|
|
(b)
|
6.07
|
|
317(a)(1)
|
6.02
|
|
(a)(2)
|
6.02
|
|
(b)
|
2.04
|
|
318(a)
|
10.01
|
N.A.
means Not Applicable.
Note:
This Cross-Reference Table shall not, for any purpose, be deemed to be part
of
this Indenture.
Exhibit
4.2
CITIZENS
COMMUNICATIONS COMPANY
$400,000,000
7.875% Senior Notes due 2027
REGISTRATION
RIGHTS AGREEMENT
December
22, 2006
Citigroup
Global Markets Inc.
Credit
Suisse Securities (USA) LLC
J.P.
Morgan Securities Inc.
c/o
Citigroup Global Markets Inc.
388
Greenwich Street
New
York,
New York 10013
Ladies
and Gentlemen:
Citizens
Communications Company, a corporation organized under the laws of Delaware
(the
“Company”), proposes to issue and sell to certain purchasers (the “Initial
Purchasers”), for whom you (the “Representatives”) are acting as
representatives, its 7.875% Senior Notes due 2027 (the “Securities”), upon the
terms set forth in the Purchase Agreement between the Company and the
Representatives dated December 18, 2006 (the “Purchase Agreement”) relating to
the initial placement (the “Initial Placement”) of the Securities. To induce the
Initial Purchasers to enter into the Purchase Agreement and to satisfy a
condition to your obligations thereunder, the Company agrees with you for your
benefit and the benefit of the holders from time to time of the Securities
(including the Initial Purchasers) (each a “Holder” and, collectively, the
“Holders”), as follows:
1.
Definitions
. Capitalized
terms used herein without definition shall have their respective meanings set
forth in the purchase agreement. As used in this agreement, the following
capitalized defined terms shall have the following meanings
:
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Affiliate”
shall have the meaning specified in Rule 405 under the Act and the terms
“controlling” and “controlled” shall have meanings correlative
thereto.
“Broker-Dealer”
shall mean any broker or dealer registered as such under the Exchange
Act.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Closing
Date” shall mean the date of the first issuance of the Securities.
“Commission”
shall mean the Securities and Exchange Commission.
“Company
”
shall
have
the
meaning set forth in the preamble hereto.
“Deferral
Period” shall have the meaning indicated in Section 4(k)(ii)
hereof.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Exchange
Offer Registration Period” shall mean the one-year period following the
consummation of the Registered Exchange Offer, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the
Exchange Offer Registration Statement.
“Exchange
Offer Registration Statement”
shall
mean
a
registration statement of the Company on an appropriate form under the Act
with
respect to the Registered Exchange Offer, all amendments and supplements to
such
registration statement, including post-effective amendments
thereto
,
in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
“Exchanging
Dealer”
shall
mean
any
Holder (which may include any Initial Purchaser) that is a Broker-Dealer and
elects to exchange
for
New
Securities any
Securities
that
it
acquired
for its own account as a result of market-making activities or other trading
activities (but not directly from the Company or any Affiliate of the Company)
for New Securities.
“Final
Memorandum”
shall
mean
the
offering memorandum, dated
December
18, 2006
,
relating
to the Securities, including any and all exhibits thereto and any information
incorporated by reference therein as of such date
.
“Holder”
shall
have
the
meaning set forth in the preamble hereto.
“Indenture”
shall
mean
the
Indenture relating to the Securities
,
dated as
of
December
22, 2006
,
between
the Company and
The
Bank
of New York,
as
trustee, as the same may be amended from time to time in accordance with the
terms thereof.
“Initial
Placement”
shall
ha
ve
the
meaning set forth in the preamble hereto.
“Initial
Purchaser” shall have the meaning set forth in the preamble hereto.
“Losses”
shall have the meaning set forth in Section 6(d) hereof.
“Majority
Holders”
shall
mean
,
on any
date,
Holders
of a majority of the aggregate principal amount of Securities registered under
a
Registration Statement.
“Managing
Underwriters”
shall
mean
the
investment banker or investment bankers and manager or managers that administer
an underwritten offering
,
if any,
under
a
Registration Statement.
“NASD
Rules” shall mean the Conduct Rules and the By-Laws of the National Association
of Securities Dealers, Inc.
“New
Securities”
shall
mean
debt
securities
of the Company identical in all material respects to the Securities (except
that
the transfer restrictions
shall
be
modified or eliminated, as appropriate) to be issued under
the
New
Securities Indenture.
“New
Securities Indenture”
shall
mean
an
indenture between the Company and the New Securities Trustee, identical in
all
material respects to the Indenture (except that the transfer restrictions
shall
be
modified or eliminated, as appropriate)
,
which
may be the Indenture if in the terms thereof appropriate provision is made
for
the New Securities
.
“New
Securities Trustee”
shall
mean
a
bank or trust company reasonably satisfactory to the Initial Purchasers, as
trustee with respect to the New Securities under the New Securities
Indenture.
“Prospectus”
shall
mean
the
prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A under the Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Securities or the New Securities covered by such Registration Statement, and
all
amendments and supplements thereto
,
including any and all exhibits thereto and any information incorporated by
reference therein
.
“Purchase
Agreement” shall have the meaning set forth in the preamble hereto.
“Registered
Exchange Offer”
shall
mean
the
proposed offer
of
the
Company
to
issue
and
deliver to
the
Holders
of
the
Securities that are not prohibited by any law or policy of the Commission from
participating in such offer
,
in
exchange for the Securities, a like
aggregate
principal
amount of the New Securities.
“Registrable
Securities” shall mean (i) Securities other than those that have been (A)
registered under a Registration Statement and disposed of in accordance
therewith or (B) distributed to the public pursuant to Rule 144 under the Act
or
any successor rule or regulation thereto
that
may
be adopted by the Commission
and (ii)
any New Securities resale of which by the Holder thereof requires compliance
with the prospectus delivery requirements of the Act.
“Registration
Default Damages” shall have the meaning set forth in Section 8
hereof.
“Registration
Statement”
shall
mean
any
Exchange Offer Registration Statement or Shelf Registration Statement that
covers any of the Securities or the New Securities pursuant to the provisions
of
this Agreement,
any
amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein
)
,
all
exhibits thereto and all material incorporated by reference
therein.
“
Representatives
”
shall have the
meaning set forth in the preamble hereto.
“Securities”
shall
ha
ve
the
meaning set forth in the preamble hereto.
“Shelf
Registration”
shall
mean
a
registration effected pursuant to Section 3 hereof.
“Shelf
Registration Period” has the meaning set forth in Section 3(b)(ii)
hereof.
“Shelf
Registration Statement”
shall
mean
a
“shelf” registration statement of the Company pursuant to the provisions of
Section 3 hereof which covers some or all of the Securities or New
Securities, as applicable, on an appropriate form under Rule 415 under the
Act, or any similar rule that may be adopted by the Commission, amendments
and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
“Trustee”
shall
mean
the
trustee with respect to the Securities under the Indenture.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“underwriter”
shall
mean
any
underwriter of Securities in connection with an offering thereof under a Shelf
Registration Statement.
2.
Registered
Exchange Offer
.
(a)
The Company shall prepare and, not later than 90 days following the closing
date, shall file with the Commission the Exchange Offer Registration Statement
with respect to the Registered Exchange Offer. The Company shall use its
reasonable
best
efforts to cause the Exchange Offer Registration Statement to become effective
under the Act within 180 days of the
C
losing
Date
.
(b)
Upon
the
effectiveness of the Exchange Offer Registration Statement, the Company shall
promptly commence the Registered Exchange Offer, it being the objective of
such
Registered Exchange Offer to enable each Holder electing to exchange Securities
for New Securities (assuming that such Holder is not an Affiliate of the
Company, acquires the New Securities in the ord
inary
course
of
such Holder’s business, has no arrangements with any person to participate in
the distribution of the New Securities
and is
not prohibited by any law or policy of the Commission from participating in
the
Registered Exchange Offer
)
to
trade such New Securities from and after their receipt without any limitations
or restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
(c)
In
connection with the Registered Exchange Offer, the Company shall:
(i)
mail
to
each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal
and
related documents;
(ii)
keep
the
Registered Exchange Offer open for not less than
30
days
and not more than 45 days
after
the date notice thereof is mailed to the Holders (or
,
in each
case,
longer
if required by applicable law);
(iii)
use
its
reasonable
best
efforts to keep the Exchange Offer Registration Statement continuously
effective
under
the Act, supplemented and amended as required
under
the Act,
to
ensure
that it is available for sales of New Securities by Exchanging Dealers during
the Exchange Offer Registration Period;
(iv)
utilize
the services of a depositary for the Registered Exchange Offer with an address
in the Borough of Manhattan
in
New
York
City,
which may be the Trustee, the New Securities Trustee or an Affiliate of either
of them
;
(v)
permit
Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Registered
Exchange Offer is open;
(vi)
prior
to
effectiveness of the Exchange Offer Registration Statement, provide a
supplemental letter to the Commission (A) stating that the Company is conducting
the Registered Exchange Offer in reliance on the position of the Commission
in
Exxon
Capital Holdings Corporation
(pub.
avail. May 13, 1988), and
Morgan
Stanley and Co., Inc.
(pub.
avail. June 5, 1991); and (B) including a representation that the Company has
not entered into any arrangement or understanding with any person to distribute
the New Securities to be received in the Registered Exchange Offer and that,
to
the best of the Company’s information and belief, each Holder participating in
the Registered Exchange Offer is acquiring the New Securities in the ordinary
course of business and has no arrangement or understanding with any person
to
participate in the distribution of the New Securities; and
(vii)
comply
in
all respects with all applicable laws.
(d)
As
soon
as practicable after the close of the Registered Exchange Offer, the Company
shall:
(i)
accept
for exchange all Securities tendered and not validly withdrawn pursuant to
the
Registered Exchange Offer;
(ii)
deliver
to the Trustee for cancellation
in
accordance with Section 4(s)
all
Securities so accepted for exchange; and
(iii)
cause
the
New Securities Trustee promptly to authenticate and deliver to each Holder
of
Securities
a
principal amount of
New
Securities equal to the
principal
amount of the
Securities
of such Holder so accepted for exchange.
(e)
Each
Holder hereby acknowledges and agrees that any Broker-Dealer and any such
Holder
using the Registered Exchange Offer to participate in a distribution of the
New
Securities (x) could not under Commission policy as in effect on the date
of
this Agreement rely
on the position of the Commission in
Exxon
Capital Holdings Corporation
(pub.
avail. May 13, 1988) and
Morgan
Stanley and Co., Inc.
(pub.
avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman
& Sterling dated July 2, 1993 and similar no-action letters; and (y) must
comply with the registration and prospectus delivery requirements of the
Act in
connection with any secondary resale transaction, which must be covered by
an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K
under
the Act if the resales are of New Securities obtained by such Holder in exchange
for Securities acquired by such Holder directly from the Company or one of
its
Affiliates. Accordingly, each Holder participating in the Registered Exchange
Offer shall be required to represent to the Company that, at the time of
the
consummation of the Registered Exchange Offer:
(i)
any
New
Securities received by such Holder will be acquired in the ordinary course
of
business;
(ii)
such
Holder will have no arrangement or understanding with any person to participate
in the distribution of the Securities or the New Securities within the meaning
of the Act; and
(iii)
such
Holder is not an Affiliate of the Company.
(f)
If
any
Initial
Purchaser
determines that it is not eligible to participate in the Registered Exchange
Offer with respect to the exchange of Securities constituting any portion of
an
unsold allotment, at the request of such Initial Purchaser, the Company shall
issue and deliver to such Initial Purchaser or the
person
purchasing New Securities registered under a Shelf Registration Statement as
contemplated by Section 3 hereof from such Initial Purchaser, in exchange for
such Securities, a like principal amount of New Securities. The Company shall
use
its
reasonable best efforts
to
cause
the CUSIP Service Bureau to issue the same CUSIP number for such New Securities
as for New Securities issued pursuant to the Registered Exchange
Offer.
3.
Shelf
Registration
.
(a)
I
f
(i)
due
to
any
change in law or applicable interpretations thereof by the Commission’s staff,
the Company determines upon advice of its outside counsel that it is not
permitted to effect the Registered Exchange Offer as contemplated by
Section 2 hereof; or
(ii)
for
any other reason the Registered Exchange Offer is not consummated within 225
days of the date hereof
;
(iii)
any
Initial Purchaser so requests with respect to Securities
that
are
not eligible to be exchanged for New Securities in the Registered Exchange
Offer
and that are
held
by
it following consummation of the Registered Exchange Offer
;
(iv)
any
Holder (other than a
n
Initial
Purchaser) is not eligible to participate in the Registered Exchange
Offer
;
or
(v)
in
the case of any Initial Purchaser that participates in the Registered Exchange
Offer or acquires New Securities pursuant to Section 2(f) hereof, such
Initial Purchaser does not receive freely tradeable New Securities in exchange
for Securities constituting any portion of an unsold allotment (it being
understood that
(
x)
the
requirement that a
n
Initial
Purchaser deliver a Prospectus containing the information required by Item
507
or 508 of regulation S-K under the Act in connection with sales of New
Securities acquired in exchange for such Securities shall
not
result
in
such New Securities being not “freely tradeable”
;
and
(y) the
requirement that an exchanging Dealer deliver a Prospectus in connection with
sales of New Securities acquired in the Registered Exchange Offer in exchange
for Securities acquired as a result of market-making activities or other trading
activities shall not result in such New Securities being not “freely
tradeable”), the C
ompany
shall effect a Shelf Registration Statement in accordance with subsection (b)
below.
(b)
(i) The Company shall as promptly as practicable (but in no event
more than 90 days after so required or requested pursuant to this Section 3),
file with the Commission
,
or if
permitted by Rule 430B under the Act, otherwise designate an existing filing
with the Commission,
a Shelf
Registration Statement relating to the offer and sale of the Securities or
the
New Securities, as applicable, by the Holders
thereof
from
time
to time in accordance with the methods of distribution elected by such Holders
and set forth in such Shelf Registration Statement;
provided
,
however
,
that
no
Holder
(other than an Initial Purchaser) shall be entitled to have the Securities
held
by it covered by such Shelf Registration Statement unless such Holder agrees
in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder; and
provided further
, that
with
respect to New Securities received by a
n
Initial
Purchaser in exchange for Securities constituting any portion of an unsold
allotment, the Company may, if permitted by current interpretations by the
Commission’s staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Item 507 or
508
of
Regulation S-K
,
as
applicable, in satisfaction of its obligations under this subsection with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
Unless
such Shelf Registration Statement is a previously filed Shelf Registration
Statement that is effective at the
time
it
is so designated, the Company
shall
use
its
reasonable
best
efforts to cause
the
Shelf
Registration Statement
to
be
declared effective under the Act
within
180 days
after
so
required or requested
.
(ii)
The
Company shall use its
reasonable
best
efforts to keep the Shelf Registration Statement continuously
effective
,
supplemented and amended as required by the Act,
in
order
to permit the Prospectus forming part thereof to be usable by Holders for a
period (the “Shelf Registration Period”)
from
the
date the Shelf Registration Statement is declared effective by the Commission
until
(A)
the second anniversary thereof
or
(B)
the date upon which
all the
Securities or New Securities, as applicable, covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement. The
Company shall be deemed not to have used its
reasonable
best
efforts to keep the Shelf Registration Statement effective during the Shelf
Registration Period if it voluntarily takes any action that would result in
Holders of Securities covered thereby not being able to offer and sell such
Securities
at
any
time
during
the Shelf Registration
P
eriod,
unless such action is
(x)
required
by applicable law or
otherwise
under
taken
by
the Company in good faith and for valid business reasons (not including
avoidance
of the Company’s obligations hereunder), including the acquisition or
divestiture of assets,
and
(y) permitted pursuant to
Section 4(k)
(ii)
hereof.
(iii)
The
Company shall cause the Shelf Registration Statement and the related Prospectus
and any amendment or supplement thereto, as of the effective date of the
Shelf
Registration Statement or such amendment or supplement, (A) to comply in
all
material respects with the applicable requirements of the Act; and (B) not
to
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary in order to make the statements
therein
(in
the
case of the Prospectus, in
the
light
of
the circumstances under which they were made)
not
misleading.
4.
Additional
R
egistration
Procedures
. In
connection with any Shelf Registration Statement and, to the extent applicable,
any Exchange Offer Registration Statement, the following provisions shall
apply.
(a)
The
Company shall:
(i)
furnish
to each of the Representatives and to counsel for the Holders,
not
less
than five Business Days
prior
to
the filing
or
designation
thereof
with the Commission, a copy of any Exchange Offer Registration
Statement
and any
Shelf
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein
(including
all documents incorporated by reference therein after the initial filing or
designation)
and
shall
use its
reasonable
best
efforts to reflect in each such document, when so filed
or
designated
with
the
Commission, such comments as the Representatives reasonably propose
;
subject
to the Company
’
s reasonable
determination as to compliance with applicable laws as provided in subsection
(b) below.
(ii)
include
the information set forth in Annex A hereto on the
facing
page
of
the
Exchange Offer Registration Statement, in Annex B hereto in the forepart of
the
Exchange Offer Registration Statement in a section setting forth details of
the
Exchange Offer,
in
Annex
C hereto in the underwriting or plan of distribution section of the Prospectus
contained
in
the
Exchange Offer Registration Statement, and in Annex D hereto in the letter
of
transmittal delivered pursuant to the Registered Exchange Offer;
(iii)
if
requested by a
n
Initial
Purchaser, include the information required by Item 507 or 508 of Regulation
S-K, as applicable, in the Prospectus
contained
in
the
Exchange Offer Registration Statement;
and
(iv)
in
the
case of a Shelf Registration Statement, include the names of the Holders that
propose to sell Securities pursuant to the Shelf Registration Statement as
selling security holders
.
(b)
The
Company shall ensure that:
(i)
any
Registration Statement and any amendment thereto and any Prospectus forming
part
thereof and any amendment or supplement thereto complies in all material
respects with the Act; and
(ii)
any
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading
.
(c)
The
Company shall advise the
R
epresentatives,
the Holders of Securities covered by any Shelf Registration
Statement
and
any
Exchanging Dealer
under
any
Exchange Offer Registration Statement that
has
provided in writing to the Company a telephone or facsimile number and address
for notices
,
and, if
requested by any Representative or any such Holder or Exchanging Dealer,
shall
confirm
such advice in writing
(which
notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the Prospectus until the Company shall have
remedied the basis for such suspension)
:
(i)
when
a
Registration Statement and any amendment thereto has been filed
or
designated
with
the
Commission and when the Registration Statement or any post-effective amendment
thereto has become effective;
(ii)
of
any
request by the Commission for
any
amendment
or supplement to the Registration Statement or the Prospectus or for additional
information;
(iii)
of
the
issuance by the Commission of any stop order suspending the effectiveness of
the
Registration Statement or the institution
or
threatening
of
any
proceeding for that purpose;
(iv)
of
the
receipt by the Company of any notification with respect to the suspension of
the
qualification of the securities included therein for sale in any jurisdiction
or
the institution
or
threatening
of
any
proceeding for such purpose; and
(v)
of
the
happening of any event that requires any change in the Registration Statement
or
the Prospectus so that, as of such date, they
(A)
do
not
contain any untrue statement of a material fact and
(B)
do
not
omit to state a material fact required to be stated therein or necessary to
make
the statements therein (in the case of the Prospectus, in
the
light
of
the circumstances under which they were made) not misleading.
(d)
The
Company shall use its
reasonable
best
efforts to
prevent
the issuance
of
any
order suspending the effectiveness of any Registration Statement
or
the
qualification of the securities therein for sale in any jurisdiction
and,
if
issued,
to
obtain
as
soon
as possible
the
withdrawal
thereof
.
(e)
The
Company shall furnish to each Holder of Securities
covered
by
any
Shelf
Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
all
material incorporated therein by reference
,
and, if
the Holder so requests in writing, all exhibits
thereto
(including
exhibits
incorporated
by reference
therein
).
(f)
The
Company shall, during the Shelf Registration Period, deliver to each Holder
of
Securities
covered
by
any
Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including the Preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request
.
T
he
Company consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Securities in connection with the
offering and sale of the Securities covered by the Prospectus
,
or any
amendment or supplement thereto
,
included in the Shelf Registration Statement
.
(g)
The
Company shall furnish to each Exchanging Dealer which so requests, without
charge, at least one copy of the Exchange Offer Registration Statement and
any
post-effective amendment thereto, including
all
material incorporated by reference therein
,
and, if
the Exchanging Dealer so requests in writing, all exhibits
thereto
(including
exhibits incorporated by reference
therein
).
(h)
The
Company shall promptly deliver to each
Initial
Purchaser, each
Exchanging
Dealer
and
each
other person required to deliver a Prospectus during the Exchange Offer
Registration Period,
without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as
any
such
person may
reasonably
request
.
T
he
Company consents to the use of the Prospectus or any amendment or supplement
thereto by any Initial Purchaser, any Exchanging
Dealer
and
any
such
other person
that
may
be
required
to deliver a
P
r
o
spectus
following the Registered Exchange Offer in connection with the offering and
sale
of the New Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Exchange Offer Registration
S
tatement.
(i)
Prior
to
the Registered Exchange Offer or any other offering of Securities pursuant
to
any Registration Statement, the Company shall arrange, if necessary, for the
qualification of the Securiti
e
s
or the
New Securities for sale under the laws of such jurisdictions
in
the
United States
as
any
Holder
s
hall
reasonably request and
shall
maintain such qualification in effect so long as required
;
provided
t
hat
in no
event shall
the
Company be
obligated
to
qualify to do business in any jurisdiction where it is not then so qualified
or
to take any action
that
w
ould
subject it to service of process
in
suits,
other than those arising out of the Initial Placement, the Registered Exchange
Offer or any offering pursuant to a Shelf Registration Statement,
in any
such jurisdiction where it is not then so subject.
(j)
The
Company shall cooperate with the Holders of Securities to facilitate the timely
preparation and delivery of certificates representing
New
Securities
or
Securities
to be
issued
or
sold
pursuant to any Registration Statement free of any restrictive legends and
in
such denominations and registered in such names as Holders may
request.
(k)
(i)
Upon
the
occurrence of any event contemplated by s
ubsections
(
c
)
(
ii)
through
(v)
above,
the Company shall promptly
(or
within the time period provided for by clause (ii) hereof, if applicable)
prepare
a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to Initial Purchasers of the
securities included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact
required
to be stated therein or
necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
In such
circumstances, the period of effectiveness of the Exchange Offer Registration
Statement provided for in Section 2 shall be extended by the number of days
from
and including the date of the giving of a notice of suspension pursuant to
Section 4(c) to and including the date when the Initial Purchasers, the Holders
of the Securities and any known Exchanging Dealer shall have received such
amended or supplemented Prospectus pursuant to this Section.
(ii)
Upon
the
occurrence or existence of any pending corporate development or any other
material event that, in the reasonable judgment of the Company, makes it
appropriate to suspend the availability of a Shelf Registration Statement and
the related Prospectus, the Company shall give notice (without notice of the
nature or details of such events) to the Holders that the availability of the
Shelf Registration is suspended and, upon actual receipt of any such notice,
each Holder agrees not to sell any Registrable Securities pursuant to the Shelf
Registration until such Holder’s receipt of copies of the supplemented or
amended Prospectus provided for in Section 3(i) hereof, or until it is advised
in writing by the Company that the Prospectus may be used, and has received
copies of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The period during which the
availability of the Shelf Registration and any Prospectus is suspended (the
“Deferral Period”) shall not exceed 45 days in any three-month period or 90 days
in any 12-month period.
(l)
Not
later
than the effective date of any Registration Statement, the Company shall provide
a CUSIP number for the Securities or
the
New
Securities, as the case may be, registered under such Registration Statement
and
provide the
T
rustee
with printed certificates for such Securities or New Securities, in a form
eligible for deposit with The Depository Trust Company.
(m)
The
Company shall comply with all applicable rules and regulations of the Commission
and shall make generally available to its security holders an earnings statement
satisfying the provisions of Section 11(a) of the Act
as
soon
as practicable after the effective date of the applicable Registration Statement
and
in
any event no later than 45 days after the end of a 12-month period (or 90 days,
if such period is a fiscal year) beginning with the first month of the Company’s
first fiscal quarter commencing after the effective date of
the
applicable Registration Statement.
(n)
The
Company shall cause the New Securities Indenture to be qualified under the
Trust
Indenture Act in a timely manner.
(o)
The
Company may require each Holder of securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Company such information regarding
the
H
older
and
the distribution of such securities as the Company may from time to time
reasonably require for inclusion in such Registration Statement.
The
Company
may
exclude from such Shelf Registration Statement the Securities of any Holder
that
unreasonably fails to furnish such information within a reasonable time after
receiving such request. In addition, each Holder further agrees that, neither
such Holder nor any underwriter participating in any disposition pursuant to
any
Registration Statement on such Holder’s behalf, will make any offer relating to
the Registrable Securities that would constitute an Issuer Free Writing
Prospectus (as defined in Rule 433 under the Act) or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405 under the Act)
required to be filed by the Company with the Commission or retained by the
Company under Rule 433 of the Securities Act, unless it has obtained the prior
written consent of the Company.
(p)
In
the
case of any Shelf Registration Statement, t
he
Company shall enter into
customary
agreements
(including,
if requested, an underwriting agreement in customary form)
and
take
all other appropriate actions
in
order
to expedite or facilitate the registration or the disposition of the Securities,
and in connection therewith, if an underwriting agreement is entered into,
cause
the same to contain indemnification provisions and procedures no less favorable
than those set forth in Section 6 hereof.
(q)
In
the
case of any Shelf Registration Statement, the Company shall:
(ii)
cause
the
Company’s officers, directors, employees
,
accountants and auditors
to
supply all relevant information reasonably requested by the Holders or any
such
underwriter, attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations;
(iii)
make
such
representations and warranties to the Holders of Securities registered
thereunder and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten offerings
and covering matters including, but not limited to, those set forth in the
Purchase Agreement;
(iv)
obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the
Managing Underwriters, if any) addressed to each selling
Holder
and the underwriters, if any, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other matters as may
be
reasonably requested by such Holders and underwriters;
(v)
obtain
“comfort” letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each
selling Holder of Securities registered thereunder and the underwriters, if
any,
in customary form and covering matters of the type customarily covered in
“comfort” letters in connection with primary underwritten offerings;
and
(vi)
deliver
such documents and certificates as may be reasonably requested by the Majority
Holders or the Managing Underwriters, if any, including those to evidence
compliance with Section 4(k) and with any customary conditions contained in
the
underwriting agreement or other agreement entered into by the
Company.
The
actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph
(
q)
shall be
performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto
;
and (B)
each closing under any underwriting or similar agreement as and to the extent
required thereunder.
(r)
In
the
case of any Exchange Offer Registration Statement, the Company shall
,
if
requested by an Initial Purchaser, or by a broker dealer that holds Securities
that were acquired as a result of market making or other trading
activities
:
(i)
make
reasonably available for inspection by the requesting party, and any attorney,
accountant or other agent retained by
the
requesting party
,
all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries
,
subject, in the case of a request by a broker dealer, to the Company obtaining
from such broker dealer a confidentiality agreement in form and substance
reasonably acceptable to the Company;
(ii)
cause
the
Company’s officers, directors, employees
,
accountants and auditors
to
supply all relevant information reasonably requested by
the
requesting party
or any
such attorney, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations;
(iii)
make
such
representations and warranties to
the
requesting party
,
in
form, substance and scope as are customarily made by issuers to underwriters
in
primary underwritten offerings and covering matters
set
forth
in the Purchase Agreement;
(iv)
obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the
requesting party and its counsel) addressed to the requesting party, covering
such matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
requesting party or its counsel;
(v)
obtain
“comfort” letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to the
requesting party, in customary form and covering matters of the type customarily
covered in “comfort” letters in connection with primary underwritten offerings,
or if requested by the requesting party or its counsel in lieu of a “comfort”
letter, an agreed-upon procedures letter under Statement on Auditing Standards
No. 35, covering matters requested by the requesting party or its counsel;
and
(vi)
deliver
such documents and certificates as may be reasonably requested by the requesting
party or its counsel, including those to evidence compliance with Section 4(k)
and with conditions customarily contained in underwriting
agreements.
The
foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section 4 shall be performed at the close of the Registered Exchange Offer
and
the effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s)
If
a
Registered Exchange Offer is to be consummated, upon delivery of the Securities
by Holders to the Company (or to such other person as directed by the Company)
in exchange for the New Securities, the Company shall mark, or caused to be
marked, on the Securities so exchanged that such Securities are being cancelled
in exchange for the New Securities. In no event shall the Securities be marked
as paid or otherwise satisfied.
(t)
The
Company shall use its reasonable best efforts, if the Securities have been
rated
prior to the initial sale of such Securities, to confirm such ratings will
apply
to the Securities or the New Securities, as the case may be, covered by a
Registration Statement.
(u)
In
the
event that any Broker-Dealer shall underwrite any Securities or participate
as a
member of an underwriting syndicate or selling group or “assist in the
distribution” (within the meaning of the NASD Rules) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or a
broker or dealer in respect thereof, or otherwise, the Company shall assist
such
Broker-Dealer in complying with the NASD Rules.
(v)
The
Company shall use its reasonable best efforts to take all other steps necessary
to effect the registration of the Securities or the New Securities, as the
case
may be, covered by a Registration Statement.
5.
Registration
Expenses
.
The Company shall bear all expenses incurred in connection with the performance
of its obligations under Sections 2, 3 and 4 hereof and, in the event of
any Shelf Registration Statement, will reimburse the Holders for the reasonable
fees and disbursements of one firm or counsel
(which
shall initially be Weil, Gotshal & Manges LLP, but which may be another
nationally recognized law firm experienced in securities matters designated
by
the
Majority
Holders
)
to act
as counsel for the Holders in connection therewith, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Initial Purchasers
for
the reasonable fees and disbursements of counsel acting in connection
therewith.
6.
Indemnification
and Contribution
.
(a)
The
Company agrees to indemnify and hold harmless each Holder of Securities
or
New
Securities, as the case may be,
covered
by
any
Registration Statement
,
each
Initial Purchaser and, with respect to any Prospectus delivery as contemplated
in Section 4(h) hereof, each Exchanging Dealer, the directors, officers,
employees, Affiliates and agents of each such Holder
,
Initial
Purchaser or Exchanging Dealer
and each
person who controls any such Holder
,
Initial
Purchaser or Exchanging Dealer
within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them
may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or
the
Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are
based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the
case of
any preliminary Prospectus
or
the
Prospectus, in
the
light
of
the circumstances under which they were made)
not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal
expenses
(which, in the absence of actual or potential conflict of interest, will
consist
of expenses for no more than one counsel (in addition to local counsel) for
all
such indemnified parties)
or
other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, damage,
liability
or action;
provided
,
however
,
that
the Company will not be liable in any
such
case
to
the extent that any such loss, claim, damage or liability arises out of or
is
based upon any such untrue statement or alleged untrue statement or omission
or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the party claiming
indemnification specifically for inclusion therein. This indemnity agreement
shall be in addition to any liability that the Company may otherwise
have.
The
Company also agrees to indemnify as provided in
this
Section
6(a) or contribute as provided in Section 6(d)
hereof
to
Losses
of each underwriter
,
if
any,
of
Securities
or
New
Securities, as the case may be,
registered
or
designated
under
a
Shelf Registration Statement, their
directors,
officers,
employees, Affiliates
or
agents
and each
person who controls such underwriter on substantially the same basis as that
of
the indemnification of the Initial Purchaser
s
and the
selling Holders provided in this Section 6(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(p) hereof.
(b)
Each
Holder of securities covered by a Registration Statement (including each Initial
Purchaser
that is
a Holder, in such capacity
)
severally
and
not
jointly
agrees
to
indemnify and hold harmless the Company
,
each
of
its directors
,
each of
its officers who signs such Registration Statement and each person who controls
the Company within the meaning of either the Act or the Exchange Act
,
to the
same extent as the foregoing indemnity from the Company to each such Holder,
but
only with reference to written information relating to such Holder furnished
to
the Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will
be in addition to any liability that any such Holder may otherwise
have.
(c)
Promptly
after receipt by an indemnified party under this Section 6 or notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 6,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture
by
the indemnifying party of substantial rights and defenses
;
and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel
(including
local counsel)
of
the
indemnifying party’s choice at the indemnifying party’s expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees
and
expenses of any separate counsel
,
other
than local counsel if not appointed by the indemnifying party,
retained
by the indemnified party or parties except as set forth below);
provided
,
however
,
that
such counsel shall be satisfactory to the indemnified party. Notwithstanding
the
indemnifying party’s election to appoint counsel
(including
local counsel)
to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate
counsel
(which,
in the absence of actual or potential conflict of interest, will consist of
no
more than one counsel (in addition to local counsel) for all such indemnified
parties)
if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest;
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action
;
or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding
and does
not include any statement as to, or admission of, fault, culpability or failure
to act by or behalf of any Indemnified Person. The Company shall not be liable
in respect of any settlement effected without its prior written consent, which
consent shall not be unreasonably withheld
.
(d)
In
the
event that the indemnity provided in paragraph (a) or (b) of this Section 6
is unavailable to or insufficient to hold harmless an indemnified party for
any
reason, then each applicable indemnifying party shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending any loss, claim, liability, damage or action)
(collectively “Losses”) to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the Initial Placement and the Registration Statement which resulted
in such Losses;
provided
,
however
,
that in
no case shall any Initial Purchaser be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that
was
exchangeable into such New Security, as set forth in the Final Memorandum,
nor
shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased
by
such underwriter under the Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on
the
one hand, and such indemnified party, on the other hand, in connection with
the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the Initial Placement (before
deducting expenses) as set forth in the Final Memorandum
.
Benefits
received by the Initial
P
urchasers
shall be deemed to be equal to the total purchase discounts and commissions
as
set forth on the cover page of the Final Memorandum, and benefits received
by
any other Holders shall be deemed to be equal to the value of receiving
Securities or New Securities, as applicable, registered under the Act. Benefits
received by any underwriter shall be deemed to be
equal
to
the total underwriting discounts and commissions, as set forth on the cover
page
of the Prospectus forming a part of the Registration Statement which resulted
in
such Losses. Relative fault shall be determined by reference to, among other
things, whether any
untrue
or
any alleged
untrue
statement
of
a
material fact
or
omission
or
alleged omission to state a material fact
relates
to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand
,
the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission
.
The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation
(even
if
the Holders were treated as one entity for such purpose)
or
any
other method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 6, each person who controls a Holder within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of such Holder shall have the same rights to contribution as such Holder,
and each person who controls the Company within the meaning of either the Act
or
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
The
Initial Purchasers’ obligation to contribute pursuant to this paragraph (d)
shall be several in proportion to their respective purchase obligations
hereunder and not joint.
(e)
The
provisions of this Section 6 will remain in full force and effect, regardless
of
any investigation made by or on behalf of any Holder or the Company or any
of
the indemnified persons referred to in
this
Section
6, and will survive the sale by a Holder of securities covered by a Registration
Statement.
7.
Underwritten
Registrations
.
(a) If any of the Securities or New Securities, as the case may be,
covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriters shall be selected by the Majority
Holders.
(b)
No
person
may participate in any underwritten offering pursuant to any Shelf Registration
Statement, unless such person (i) agrees to sell such person’s Securities or New
Securities, as the case may be, on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements; and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting
arrangements.
8.
Registration
Defaults
.
If any
of the following events shall occur, then the Company shall pay liquidated
damages (the “Registration Default Damages”) to the Holders of Securities in
respect of the Securities as follows:
(a)
if
any
Registration Statement required by this Agreement is not filed or designated
with the Commission on or prior to the date specified for such filing in
this
Agreement, then Registration Default Damages shall accrue on the Registrable
Securities at a rate of .25% per annum for the first 90 days from and including
such specified date and .50% per annum thereafter; or
(b)
if,
after
having filed any Registration Statement required by this Agreement, such
Registration Statement is not declared effective by the Commission on or prior
to the date by which reasonable best efforts are to be used to cause such
effectiveness under this Agreement, then commencing on the
day
after
such specified date, Registration Default Damages shall accrue on the
Registrable Securities at a rate of .25% per annum for the first 90 days from
and including such specified date
and
.50%
per annum thereafter; or
(c)
if
any
Registration Statement required by this Agreement has been declared effective
but ceases to be effective at any time at which it is required to be effective
under this Agreement, then commencing on the day the Registration Statement
ceases to be effective, Registration Default Damages shall accrue on the
Registrable Securities at a rate of .25% per annum for the first 90 days from
and including such date on which the Registration Statement ceases to be
effective and .50% per annum thereafter;
provided
,
however
,
that
(1) upon the filing or designating of the Registration Statement (in the case
of
paragraph (a) above), (2) upon the effectiveness of the Registration Statement
(in the case of paragraph (b) above), or (3) upon the effectiveness of the
Registration Statement that had ceased to remain effective (in the case of
paragraph (c) above), Registration Default Damages shall cease to accrue;
provided
further
,
for the
avoidance of doubt,
that
the Company shall not under any circumstances be required to pay Registration
Default Damages under (a), (b) and (c) of this Section 8 in a cumulative
manner
.
9.
No
Inconsistent Agreements
.
The Company has not
entered
into, and agrees not to enter into, any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders herein or
that
otherwise
conflicts with the provisions hereof.
10.
Amendments
and Waivers
. The
provisions of this Agreement
may
not
be amended, qualified, modified or supplemented, and waivers or consents
to
departures from the provisions hereof may not be given, unless the Company
has
obtained the written consent of the Holders of a majority of the aggregate
principal amount of
the
Registrable
Securities
outstanding;
provided
that,
with respect to any matter that directly or indirectly affects the rights
of any
Initial Purchaser hereunder, the Company shall obtain the written consent
of
each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective
;
provided
,
further
,
that
no
amendment,
qualification, supplement, waiver or consent
with
respect to Section 8 hereof shall be effective as against any Holder
of
Registered
Securities unless consented to in writing by such Holder;
and
provided
,
further
,
that
the
provisions of this Section 10 may not
be
amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company
has
obtained the written consent of the
Initial
Purchasers and each
Holder.
Notwithstanding the foregoing (except the foregoing proviso
s
),
a
waiver or consent to departure from the provisions hereof with respect to
a
matter that relates exclusively to the rights of Holders whose Securities
or
New
Securities, as the case may be,
are
being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of
S
ecurities
or
New
Securities, as the case may be,
being
sold rather than registered under such Registration
Statement.
11.
Notices
.
All notices and other communications provided for or permitted hereunder
shall
be made in writing by hand-delivery, first-class mail, telex, telecopier
or air
courier guaranteeing overnight delivery:
(a)
if
to a
Holder, at the most current address given by such holder to the Company in
accordance with the provisions of this Section
11
,
which
address initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture;
(b)
if
to the
R
epresentatives,
initially at the address or addresses set forth in the Purchase Agreement;
and
(c)
if
to the
Company, initially at its address set forth in the Purchase
Agreement.
All
such
notices and communications shall be deemed to have been duly given when
received.
The
Initial Purchasers or the Company by notice to the other
parties
may
designate additional or different addresses for subsequent notices or
communications.
12.
Remedies
.
Each Holder, in addition to being entitled to exercise all rights provided
to it
herein, in the
Indenture
or
in the
Purchase Agreement or granted by law, including recovery of liquidated or
other
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive in any action for
specific
performance the defense that a remedy at law would be
adequate.
13.
Successors
.
This
Agreement shall inure to the benefit of and be binding upon the
parties
hereto, their respective
successors
and assigns, including, without the need for an express assignment or any
consent by the Company thereto, subsequent Holders of Securities and
the
New
Securities
,
and the
indemnified persons referred to in Section 6 hereof
.
The
Company hereby agrees to extend the benefits of this Agreement to any Holder
of
Securities and
the
New
Securities
,
and any
such Holder may specifically enforce the provisions of this Agreement as
if an
original party hereto.
14.
Counterparts
.
This Agreement may be
signed
in
one or
more
counterparts,
each of which shall
constitute
an
original and all of which together shall constitute one and the same
agreement.
15.
Headings
.
The
section
headings
used
herein
are
for
convenience only and shall not affect the
construction
hereof.
16.
Applicable
Law
.
This Agreement shall be governed by and construed in accordance with the
laws of
the State of New York applicable to
contracts
made
and
to be performed in the State
of New
York
.
The
parties hereto each hereby waive any right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this
Agreement.
17.
Severability
.
In the event that any one or more of the provisions contained herein, or
the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected thereby, it
being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
18.
Securities
Held by the Company, etc.
Whenever
the consent or approval of Holders of a specified percentage of principal
amount
of Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether
such
consent or approval was given by the Holders of such required
percentage.
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the Company and the
several Initial Purchasers.
|
|
Very truly yours,
|
|
|
|
|
|
Citizens Communications Company
|
|
|
|
|
|
|
By:
|
/s/ Donald
R.
Shassian
|
|
|
|
Name:
Donald
R. Shassian
|
|
|
|
Title:
Chief
Financial
Officer
|
|
|
|
|
The
foregoing Agreement is hereby confirmed and
a
ccepted
as of the date first above written.
Citigroup
Global Markets Inc.
Credit
Suisse Securities (USA) LLC
J.P.
Morgan Securities Inc.
By:
Citigroup Global Markets Inc.
|
By:
|
/s/ Craig
A.
Larson
|
|
|
Name:
Craig
A. Larson
|
|
|
Title:
Managing
Director
|
For
themselves and the other several
Initial
Purchasers named in Schedule I
to
the
Purchase Agreement.
ANNEX
A
Each
broker-dealer that receives new securities for its own account pursuant to
the
Exchange Offer must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. The Letter of Transmittal states that
by
so acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an “underwriter” within the meaning of the Act. This
prospectus, as it may be amended or supplemented from time to time, may be
used
by a broker-dealer in connection with resales of new securities received in
exchange for securities where such securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, starting on the expiration date and
ending on the close of business one year after the expiration date, it will
make
this prospectus available to any broker-dealer for use in connection with any
such resale. See “Plan of Distribution”.
ANNEX
B
Each
broker-dealer that receives new securities for its own account in exchange
for
securities, where such securities were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such new
securities. See “Plan of Distribution”.
ANNEX
C
PLAN
OF DISTRIBUTION
Each
broker-dealer that receives new securities for its own account pursuant to
the
Exchange Offer must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. This prospectus, as it may be amended
or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of new securities received in exchange for securities where such
securities were acquired as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the expiration
date
and ending on the close of business one year after the expiration date, it
will
make this prospectus, as amended or supplemented, available to any broker-dealer
for use in connection with any such resale. In addition, until __________,
______, all dealers effecting transactions in the new securities may be required
to deliver a prospectus.
The
Company will not receive any proceeds from any sale of new securities by
brokers-dealers. New securities received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the new securities or a combination of such methods
of
resale, at market prices prevailing at the time of resale, at prices related
to
such prevailing market prices or negotiated prices. Any such resale may be
made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such new securities. Any
broker-dealer that resells new securities that were received by it for its
own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such new securities may be deemed to be an
“underwriter” within the meaning of the Act and any profit of any such resale of
new securities and any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
“underwriter” within the meaning of the Act.
For
a
period of one year
after
the
expiration date, the Company will promptly send additional copies of this
prospectus and any amendment or supplement to this prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the holder of the securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the securities (including any broker-dealers) against certain
liabilities, including liabilities under the Act.
[
If
applicable, add information required by Regulation S-K Items 507 and/or
508.
]
ANNEX
D
Rider
A
PLEASE
FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Rider
B
If
the
undersigned is not a Broker-Dealer, the undersigned represents that it acquired
the New Securities in the ordinary course of its business, it is not engaged
in,
and does not intend to engage in, a distribution of New Securities and it has
no
arrangements or understandings with any person to participate in a distribution
of the New Securities. If the undersigned is a Broker-Dealer that will receive
New Securities for its own account in exchange for Securities, it represents
that the Securities to be exchanged for New Securities were acquired by it
as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus in connection with any resale of such New
Securities; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an “underwriter” within the
meaning of the Act.