UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

February 19, 2016

(Date of earliest event reported)

 

 

WEYERHAEUSER COMPANY

(Exact name of registrant as specified in charter)

 

 

 

Washington   1-4825   91-0470860

 

(State or other jurisdiction of

incorporation or organization)

 

 

(Commission

File Number)

 

 

(IRS Employer

Identification Number)

Federal Way, Washington 98063-9777

(Address of principal executive offices)

(zip code)

Registrant’s telephone number, including area code:

(253) 924-2345

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))


Introductory Note

On February 19, 2016, pursuant to the Agreement and Plan of Merger, dated as of November 6, 2015 (the “ Merger Agreement ”), between Weyerhaeuser, a Washington corporation (“ Weyerhaeuser ”), and Plum Creek Timber Company, Inc., a Delaware corporation (“ Plum Creek ”), Plum Creek merged with and into Weyerhaeuser (the “ Merger ”). At the effective time of the Merger, the separate corporate existence of Plum Creek ceased and Weyerhaeuser continued as the surviving entity in the Merger. The effective time of the Merger was 4:30 p.m. (eastern time) on February 19, 2016.

ITEM 1.01.  Entry into a Material Definitive Agreement

See disclosure included in Item 2.03 below, which is incorporated herein by reference.

ITEM 2.01.  Completion of Acquisition or Disposition of Assets

On February 19, 2016, pursuant to the Merger Agreement, Plum Creek merged with and into Weyerhaeuser. At the effective time of the Merger, the separate corporate existence of Plum Creek ceased and Weyerhaeuser continued as the surviving entity in the Merger. The effective time of the Merger was 4:30 p.m. (Eastern time) on February 19, 2016.

Pursuant to the Merger Agreement, at the effective time of the Merger, each outstanding share of Plum Creek common stock (other than shares of Plum Creek common stock owned by Plum Creek as treasury stock, which will be canceled) was automatically converted into the right to receive 1.60 Weyerhaeuser common shares, with cash paid in lieu of any fractional shares. As a result of the Merger, Weyerhaeuser will issue approximately 278.9 million common shares. Based on the closing price of $23.84 per Weyerhaeuser common share on the New York Stock Exchange (the “ NYSE ”) on February 18, 2016, the last trading day before the date of the closing of the Merger, the aggregate value of the consideration to be paid in connection with the Merger to former holders of Plum Creek common stock is approximately $6.6 billion. Upon consummation of the Merger, Plum Creek stock options and other equity awards (other than value management awards granted on or before December 31, 2014, which were canceled and will be cashed out) converted into stock options and equity awards with respect to Weyerhaeuser common shares, after giving effect to the 1.60 exchange ratio (rounded down to the nearest whole Weyerhaeuser common share).

Upon the closing of the Merger, the shares of Plum Creek common stock, which previously traded under the ticker symbol “PCL” on the NYSE, ceased trading on, and were delisted from, the NYSE.

The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which was attached as Exhibit 2.1 to Weyerhaeuser’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “ SEC ”) on November 9, 2015, and is incorporated herein by reference.

ITEM 2.03.  Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

Guarantees

Registered Notes

In connection with the Merger, on February 19, 2016, Weyerhaeuser and Plum Creek entered into a supplemental indenture (the “ Supplemental Indenture ”) providing for unsubordinated guarantees by Weyerhaeuser (the “ Guarantees ”) of Plum Creek’s existing notes described below.


The Guarantees are in respect of:

 

  Plum Creek Timberlands, L.P.’s 4.70% Notes due 2021 in an aggregate principal amount of $575 million (the “ Plum Creek 2021 Notes ”); and

 

  Plum Creek Timberlands, L.P.’s 3.25% Notes due 2023 in an aggregate principal amount of $325 million (the “ Plum Creek 2023 Notes ” and together with the Plum Creek 2021 Notes, the “ Plum Creek Notes ”).

Each of the Plum Creek Notes was issued under an Indenture, dated November 14, 2005 among Plum Creek Timberlands, L.P. (“ Plum Creek Timberlands ”), as Issuer, and Plum Creek Timber Company, Inc., as Guarantor, to U.S. Bank National Association, as Trustee (the “ Indenture ”). The Plum Creek 2021 Notes were issued pursuant to a Plum Creek Officer’s Certificate dated November 15, 2010 (the “ 2021 Officer’s Certificate ”). The Plum Creek 2023 Notes were issued pursuant to a Plum Creek Officer’s Certificate dated November 26, 2012 (the “ 2023 Officer’s Certificate ”, and together with the 2021 Officer’s Certificate, the “ Officer’s Certificates ”).

The Indenture contains certain negative covenants that limit Plum Creek Timberlands’ ability and the ability of certain of its subsidiaries to incur certain liens, engage in certain sale-leaseback transactions, and merge or consolidate or sell all or substantially all of Plum Creek Timberlands’ assets. The Indenture provides for customary events of default, including a failure by Plum Creek Timberlands to pay the principal, premium, if any, interest or additional amounts, if any, due under the Indenture. In addition, each of the Plum Creek Notes is redeemable, in whole or in part, at Plum Creek Timberlands’ option, at the redemption price set forth in the Indenture. With respect to the Plum Creek Notes, upon the occurrence of a change of control repurchase event (as defined in the Officer’s Certificates), unless Plum Creek Timberlands has exercised its option to redeem such notes as described above, Plum Creek Timberlands will be required to make an offer to repurchase all Plum Creek Notes at a price in cash equal to 101% of the principal amount of such notes, plus any accrued and unpaid interest to, but not including, the purchase date.

Venture Note

Plum Creek Ventures I, LLC (“ Plum Creek Ventures ”) borrowed an aggregate principal amount of $783 million under a Credit Agreement and Guarantee dated October 1, 2008 among Plum Creek Ventures I, LLC, as Borrower, Plum Creek Timber Company, Inc. as Guarantor, and Southern Diversified Timber, LLC as Lender (the “ Plum Creek Venture Note ”). In connection with the Merger, on January 21, 2016, Weyerhaeuser entered into an Assumption Agreement in favor of Southern Diversified Timber, LLC (the “ Assumption Agreement ”) providing for the guarantee by Weyerhaeuser (the “ Venture Note Guarantee ”) of the Plum Creek Venture Note, effective immediately upon consummation of the Merger.

The annual interest rate payable on the Plum Creek Venture Note is fixed at 7.375% per annum. During the ten-year term of the Plum Creek Venture Note, interest is paid quarterly with the principal due upon maturity. The Plum Creek Venture Note matures on October 1, 2018 but the maturity thereof may be extended until October 1, 2020 at the election of Plum Creek Ventures so long as no default or event of default has occurred and is continuing under the Plum Creek Venture Note. The Plum Creek Venture Note is not redeemable prior to maturity.

The Plum Creek Venture Note contains certain negative covenants that limit Plum Creek Ventures’ ability to incur certain liens, engage in certain sale-leaseback transactions, and merge or consolidate or sell all or substantially all of Plum Creek Ventures’ assets. The Plum Creek Venture Note provides for customary events of default, including a failure by Plum Creek Ventures to pay the principal and interest, if any, due under the Plum Creek Venture Note.

The foregoing description of the Supplemental Indenture, the Indenture, the 2021 Officer’s Certificate, the 2023 Officer’s Certificate, the Assumption Agreement and the Plum Creek Venture Note does not purport to be complete and is qualified in its entirety by reference to the full and complete terms of the Supplemental Indenture, the Indenture, the 2021 Officer’s Certificate, the 2023 Officer’s Certificate, the Assumption Agreement and the Plum Creek Venture Note , which are attached to this Current Report on Form 8-K as Exhibits 4.1, 4.2, 4.3, 4.4, 10.1 and 10.2, respectively, and are incorporated herein by reference.


Other Plum Creek Debt

Installment Note

Plum Creek Timberlands, a subsidiary of Plum Creek and, after the Merger, a subsidiary of Weyerhaeuser, is the borrower of an $860 million installment note (the “installment note”) payable to MWV Community Development and Land Management, LLC or its permitted assignees which was issued in connection with the acquisition of certain timberland assets. The annual interest rate payable on the installment note is fixed at 5.207% per annum. During the ten-year term of the installment note, interest is paid semi-annually with the principal due upon maturity. The installment note matures on December 6, 2023, but the maturity thereof may be extended at the request of the holder if Plum Creek Timberlands at the time of the request intends to refinance all or a portion of the installment note for a term of five years or more. The installment note is generally not redeemable prior to maturity except in certain limited circumstances and could be subject to a premium on redemption.

ITEM 5.02.  Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Board of Directors

Effective immediately after the consummation of the Merger:

 

  the board of directors of Weyerhaeuser (the “ Weyerhaeuser Board ”) was expanded from 10 to 13 members;

 

  Debra A. Cafaro and Wayne W. Murdy resigned from the Weyerhaeuser Board;

 

  Rick R. Holley, Sara Grootwassink Lewis, John F. Morgan Sr., Marc F. Racicot and Lawrence A. Selzer (formerly on the board of directors of Plum Creek) were appointed to the Weyerhaeuser Board;

 

  Mr. Holley was appointed as the non-executive chairman of the Weyerhaeuser Board (replacing Charles R. Williamson in such role);

 

  Mr. Williamson was appointed as the lead independent director (with such duties to include presiding at all meetings of the Weyerhaeuser Board at which the non-executive chairman is not present);

 

  the Finance Committee of the Weyerhaeuser Board was disbanded; and

 

  the following members of the Weyerhaeuser Board were appointed to serve as members of the following committees:

 

Executive Committee

Charles Williamson, Chair

Rick Holley

Doyle Simons

  

Compensation Committee

Charles Williamson, Chair

Mark Emmert

Lawrence Selzer

John Kieckhefer

Nicole Piasecki

Audit Committee

D. Michael Steuert, Chair

Kim Williams

Sara Grootwassink Lewis

Marc Racicot

John Morgan

  

Governance Committee

Nicole Piasecki, Chair

David Bozeman

Lawrence Selzer

Marc Racicot

Kim Williams

The resignations of Debra A. Cafaro and Wayne W. Murdy were not as a result of any disagreement with Weyerhaeuser on any matter relating to its operations, policies or practices. In connection with their appointments as directors, each of the new directors listed above will receive compensation as a non-employee director. A description of such compensation can be found in Weyerhaeuser’s Proxy Statement filed with the SEC on April 1, 2015 and is incorporated herein by reference. There are no arrangements or understandings between any of the newly-appointed directors and any other person pursuant to which such persons were selected as directors.


Officers

Effective immediately after the consummation of the Merger, Russell S. Hagen became Senior Vice President and Chief Financial Officer of Weyerhaeuser.    Effective immediately after the consummation of the Merger, Patricia M. Bedient, who previously acted as Weyerhaeuser’s Chief Financial Officer, will continue to act as Executive Vice President for Weyerhaeuser until she retires later in the year.

Mr. Hagen, age 50, joined Plum Creek in 1993. From 2012 until the Merger, Mr. Hagen served as Senior Vice President, Business Development of Plum Creek, in which role, he oversaw the company’s business development activities, including acquisitions and dispositions and managed its energy and natural resource business. He previously served as Vice President, Energy and Renewable Resources from 2009 through 2011 and Vice President, Real Estate of Plum Creek from 2007 through 2008, which roles included oversight of the company’s real estate development activities as well as natural resources and responsibility for the development of the company’s oil and gas, construction materials and bioenergy businesses. Mr. Hagen joined Plum Creek as manager of internal audit and held positions of increasing responsibility at the company, including director-level positions in accounting, financial operations, risk management and information technology, before acting as Vice President, Real Estate Development.

There are no arrangements or understandings between Mr. Hagen and any other person pursuant to which he was selected as an officer. Mr. Hagen does not have any family relationship with any director or other executive officer of Weyerhaeuser or any person nominated or chosen by Weyerhaeuser to become a director or executive officer. There are no transactions in which Mr. Hagen has an interest requiring disclosure under Item 404(a) of Regulation S-K, other than in his role as an officer of Plum Creek in connection with the Merger.

ITEM 8.01.  Other Events

Announcement of Completion of Merger

On February 19, 2016, Weyerhaeuser issued a press release announcing the completion of the Merger. A copy of this press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

Changes in Management

In addition to the resignations and appointments listed under Item 5.02 of this Current Report on Form 8-K, effective immediately following the consummation of the Merger, Weyerhaeuser appointed the following former officers of Plum Creek as officers of Weyerhaeuser:

 

Name    Position
Thomas M. Lindquist    Executive Vice President, Real Estate, Energy and Natural Resources
Timothy E. Punke    Senior Vice President, Corporate Affairs

 

ITEM 9.01  Financial Statements and Exhibits

(a)   Financial Statements of Business Acquired

Weyerhaeuser intends to file the financial statements of Plum Creek required by Item 9.01(a) as part of an amendment to this Current Report on Form 8-K or otherwise not later than 71 calendar days after the date this Current Report on Form 8-K is required to be filed.


(b)    Pro Forma Financial Information

Weyerhaeuser intends to file the pro forma financial information required by Item 9.01(b) as part of an amendment to this Current Report on Form 8-K or otherwise not later than 71 calendar days after the date this Current Report on Form 8-K is required to be filed.

FORWARD-LOOKING STATEMENTS

This communication contains statements that are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including, without limitation, with respect to Weyerhaeuser’s future results and performance and the expected benefits of the transaction with Plum Creek such as efficiencies, cost savings and growth potential, all of which are subject to risks and uncertainties. Factors listed below, as well as other factors, may cause actual results to differ significantly from these forward-looking statements. There is no guarantee that any of the events anticipated by these forward-looking statements will occur. If any of the events occur, there is no guarantee what effect they will have on company operations or financial condition. Weyerhaeuser will not update these forward-looking statements after the date of this communication.

Some forward-looking statements discuss Weyerhaeuser’s and Plum Creek’s plans, strategies, expectations and intentions. They use words such as “expects,” “may,” “will,” “believes,” “should,” “approximately,” “anticipates,” “estimates,” and “plans.” In addition, these words may use the positive or negative or other variations of those and similar words.

Major risks, uncertainties and assumptions that affect Weyerhaeuser’s and Plum Creek’s businesses and may cause actual results to differ materially from those expressed or implied in these forward-looking statements, including, without limitation, the risk that the businesses of Weyerhaeuser and Plum Creek will not be integrated successfully; the effect of general economic conditions, including employment rates, housing starts, interest rate levels, availability of financing for home mortgages, and strength of the U.S. dollar; market demand for our products, which is related to the strength of the various U.S. business segments and U.S. and international economic conditions; performance of our manufacturing operations, including maintenance requirements; the level of competition from domestic and foreign producers; the successful execution of internal performance plans, including restructurings and cost reduction initiatives; raw material prices; energy prices; the effect of weather; the risk of loss from fires, floods, windstorms, hurricanes, pest infestation and other natural disasters; transportation availability and costs; federal tax policies; the effect of forestry, land use, environmental and other governmental regulations; legal proceedings; performance of pension fund investments and related derivatives; the effect of timing of retirements and changes in the market price of company stock on charges for stock-based compensation; changes in accounting principles; and other factors described in Weyerhaeuser’s and Plum Creek’s filings with the SEC, including the “Risk Factors” section in Weyerhaeuser’s and Plum Creek’s respective annual reports on Form 10-K for the year ended December 31, 2015. Other risks associated with the transaction with Plum Creek are also discussed in the definitive joint proxy statement/prospectus that Weyerhaeuser and Plum Creek filed with the SEC on Form 424B3 and Schedule 14A, respectively, on December 29, 2015 in connection with the transaction.

(d)    Exhibits

The following items are filed as exhibits to this report:

 

 2.1    Agreement and Plan of Merger, dated as of November 6, 2015, between Weyerhaeuser Company and Plum Creek Timber Company, Inc. (incorporated by reference to Exhibit 2.1 of Weyerhaeuser’s Report on Form 8-K filed on November 9, 2015).
 4.1    Supplemental Indenture No. 1 dated as of February 19, 2016 between Plum Creek Timberlands, L.P., as Issuer, Weyerhaeuser Company, as Guarantor, and U.S. Bank National Association, as Trustee.
 4.2    Note Indenture, dated November 14, 2005, by and among Plum Creek Timberlands, L.P., as Issuer, Plum Creek Timber Company, Inc., as Guarantor, and U.S. Bank National Association, as Trustee.


 4.3    Officer’s Certificate, dated November 15, 2010, executed by Plum Creek Timberlands, L.P., as Issuer, establishing the terms and form of the Plum Creek 2021 Notes.
 4.4    Officer’s Certificate, dated November 26, 2012, executed by Plum Creek Timberlands, L.P., as Issuer, establishing the terms and form of the Plum Creek 2023 Notes.
 10.1    Assumption Agreement dated as of January 21, 2016 by Weyerhaeuser Company in favor of Southern Diversified Timber, LLC.
 10.2    Credit Agreement and Guarantee, dated October 1, 2008, by and among Plum Creek Ventures I, LLC, Plum Creek Timber Company, Inc. and Southern Diversified Timber, LLC.
 99.1    Press Release, dated February 19, 2016.


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

WEYERHAEUSER COMPANY

 
By:  

/s/ Devin W. Stockfish

                
Name:   Devin W. Stockfish  
Title:  

Senior Vice President, General Counsel

and Corporate Secretary

 

Date: February 19, 2016


EXHIBIT INDEX

 

 Exhibit 

No.

 

Description

2.1

  Agreement and Plan of Merger, dated as of November 6, 2015, between Weyerhaeuser Company and Plum Creek Timber Company, Inc. (incorporated by reference to Exhibit 2.1 of Weyerhaeuser’s Report on Form 8-K filed on November 9, 2015).

4.1

  Supplemental Indenture No. 1 dated as of February 19, 2016 between Plum Creek Timberlands, L.P., as Issuer, Weyerhaeuser Company, as Guarantor, and U.S. Bank National Association, as Trustee.

4.2

  Note Indenture, dated November 14, 2005, by and among Plum Creek Timberlands, L.P., as Issuer, Plum Creek Timber Company, Inc., as Guarantor, and U.S. Bank National Association, as Trustee.

4.3

  Officer’s Certificate, dated November 15, 2010, executed by Plum Creek Timberlands, L.P., as Issuer, establishing the terms and form of the Plum Creek 2021 Notes.

4.4

  Officer’s Certificate, dated November 26, 2012, executed by Plum Creek Timberlands, L.P., as Issuer, establishing the terms and form of the Plum Creek 2023 Notes.

10.1

  Assumption Agreement dated as of January 21, 2016 by Weyerhaeuser Company in favor of Southern Diversified Timber, LLC.

10.2

  Credit Agreement and Guarantee, dated October 1, 2008, by and among Plum Creek Ventures I, LLC, Plum Creek Timber Company, Inc. and Southern Diversified Timber, LLC.

99.1

  Press Release, dated February 19, 2016.

Exhibit 4.1

 

PLUM CREEK TIMBERLANDS, L.P.,

as Issuer

and

WEYERHAEUSER COMPANY

(as successor to PLUM CREEK TIMBER COMPANY, INC.),

as Guarantor

to

U.S. Bank National Association

as Trustee

 

Supplemental Indenture No. 1

Dated as of February 19, 2016

to

Indenture

Dated as of November 14, 2005

Debt Securities


SUPPLEMENTAL INDENTURE NO. 1 , dated as of February 19, 2016, among Plum Creek Timberlands, L.P., a Delaware limited partnership (the “Issuer”), Weyerhaeuser Company, a Washington corporation (the “Successor Guarantor”), as successor to Plum Creek Timber Company, Inc., a Delaware corporation (the “Original Guarantor”), and U.S. Bank National Association, as trustee (the “Trustee”) under the hereafter defined Indenture.

W I T N E S S E T H:

WHEREAS , the Issuer and the Original Guarantor previously executed and delivered to the Trustee an Indenture dated as of November 14, 2005 (the “Indenture”) providing for the issuance from time to time by the Issuer of one or more series of Securities up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of the Indenture;

WHEREAS , the Issuer has previously established the terms of two series of Securities under the Indenture (collectively, the “Existing Securities”): (i) the 4.70% Notes due 2021 and (ii) the 3.25% Notes due 2023; and

WHEREAS , pursuant to the terms of the Agreement and Plan of Merger dated as of November 6, 2015 between the Original Guarantor and the Successor Guarantor (the “Merger Agreement”), the Original Guarantor shall merge with and into the Successor Guarantor, effective as of 4:30 p.m., New York City time on February 19, 2016 (the “Effective Time”), whereupon the separate corporate existence of the Original Guarantor shall cease and the Successor Guarantor shall continue as the surviving entity (the “Merger”) and thereupon the Successor Guarantor shall assume by operation of law all obligations of the Original Guarantor, including the Indenture; and

WHEREAS , pursuant to Section 11.3 of the Indenture, as of the Effective Time the Successor Guarantor, as successor to the Original Guarantor by virtue of the Merger, shall be bound by all the covenants, stipulations, promises and agreements in the Indenture contained by or on behalf of the Original Guarantor, including in respect of the Existing Securities; and

WHEREAS , the execution and delivery of this First Supplemental Indenture has been duly and validly authorized by the Issuer and the Successor Guarantor; and

WHEREAS , pursuant to Section 8.1(b) of the Indenture, the Trustee is authorized to execute and deliver this First Supplemental Indenture without the consent of Securityholders; and

WHEREAS , all the conditions and requirements necessary to make this First Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the parties hereto and the execution and delivery thereof have been in all respects duly authorized by the parties hereto.

NOW, THEREFORE , in consideration of the premises and the purchases of the Securities by the holders thereof, it is mutually covenanted and agreed for the equal and proportionate benefit of the respective holders from time to time of the Securities and of the coupons, if any, appertaining thereto as follows:

 

1


ARTICLE ONE

ASSUMPTION

SECTION 1.01. Assumption . As of the Effective Time, the Successor Guarantor agrees that it shall be bound by all the covenants, stipulations, promises and agreements in the Indenture and the Securities contained by or on behalf of the Original Guarantor. Accordingly, as of the Effective Time, the Successor Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, the Original Guarantor under the Indenture and the Securities with the same effect as if the Successor Guarantor had been named as the Guarantor therein, and all references to the “Guarantor” in the Indenture and any Securities shall be deemed to be references to the Successor Guarantor.

ARTICLE TWO

MISCELLANEOUS PROVISIONS

SECTION 2.01. Terms Defined . For all purposes of this First Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.

SECTION 2.02. Indenture . Except as amended hereby, the Indenture and the Existing Securities are in all respects ratified and confirmed and all the terms shall remain in full force and effect.

SECTION 2.03. New York Law to Govern . THIS FIRST SUPPLEMENTAL INDENTURE 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 INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

SECTION 2.04. Successors and Assigns of Issuer and Guarantor Bound by First Supplemental Indenture . All the covenants, stipulations, promises and agreements in this First Supplemental Indenture contained by or in behalf of the Issuer and the Guarantor shall bind their respective successors and assigns, whether so expressed or not.

SECTION 2.05. Counterparts . This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.

SECTION 2.06. Trustee Not Responsible for Recitals . The recitals contained herein shall be taken as the statements of the Issuer or the Guarantor, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.

SECTION 2.07. Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

 

2


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

 

 

   

PLUM CREEK TIMBERLANDS, L.P.,

    By:      

PLUM CREEK TIMBER I, L.L.C.

     

its General Partner

      By:  

  PLUM CREEK TIMBER COMPANY, INC.

       

  its Sole Member

      By:    

  /s/ David W. Lambert

       

  Name:

 

  David W. Lambert

       

  Title:

 

  Senior Vice President and

         

  Chief Financial Officer

Attest:

 

By:  

 

/s/ Jose J. Quintana

 

 

        

WEYERHAEUSER COMPANY,

  
         By:   

  /s/ Jeffrey W. Nitta

  
           

  Name:

 

  Jeffrey W. Nitta

  
              Title:  

  Vice President and

  
             

  Treasurer

  

Attest:

 

By:  

 

/s/ Devin W. Stockfish

 

 

        

U.S. BANK NATIONAL ASSOCIATION

  
         By:   

  /s/ Thomas Zrust

  
           

  Name:

 

   Thomas Zrust

  
              Title:  

   Vice President

  
                

[Signature Page to Supplemental Indenture]

Exhibit 4.2

 

 

PLUM CREEK TIMBERLANDS, L.P.,

as Issuer

and

PLUM CREEK TIMBER COMPANY, INC.,

as Guarantor

to

U.S. Bank National Association,

as Trustee

Indenture

Dated as of November 14, 2005

Debt Securities

 

 

 

          


TABLE OF CONTENTS

 

ARTICLE I DEFINITIONS

    1

SECTION 1.1

  CERTAIN TERMS DEFINED   1

ARTICLE II SECURITIES

  8

SECTION 2.1

  FORMS GENERALLY   8

SECTION 2.2

  FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION   8

SECTION 2.3

  AMOUNT UNLIMITED; ISSUABLE IN SERIES   9

SECTION 2.4

  AUTHENTICATION AND DELIVERY OF SECURITIES   11

SECTION 2.5

  EXECUTION OF SECURITIES   14

SECTION 2.6

  CERTIFICATE OF AUTHENTICATION   14

SECTION 2.7

  DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST   14

SECTION 2.8

  REGISTRATION, TRANSFER AND EXCHANGE   15

SECTION 2.9

  MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES   18

SECTION 2.10

  CANCELLATION OF SECURITIES; DESTRUCTION THEREOF   19

SECTION 2.11

  TEMPORARY SECURITIES   20

ARTICLE III COVENANTS OF THE ISSUER

  20

SECTION 3.1

  PAYMENT OF PRINCIPAL AND INTEREST   20

SECTION 3.2

  OFFICES FOR PAYMENTS, ETC.   21

SECTION 3.3

  APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE   22

SECTION 3.4

  PAYING AGENTS   22

SECTION 3.5

  COMPLIANCE CERTIFICATES   23

SECTION 3.6

  EXISTENCE   23

SECTION 3.7

  LUXEMBOURG PUBLICATIONS   23

ARTICLE IV SECURITYHOLDER LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE

  23

SECTION 4.1

  ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF SECURITYHOLDERS   23

SECTION 4.2

  REPORTS BY THE ISSUER   24

SECTION 4.3

  REPORTS BY THE TRUSTEE   24

ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT

  25

SECTION 5.1

  EVENT OF DEFAULT DEFINED, ACCELERATION OF MATURITY; WAIVER OF DEFAULT   25

SECTION 5.2

  COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT   29

 

i

 


SECTION 5.3

  APPLICATION OF PROCEEDS   31

SECTION 5.4

  SUITS FOR ENFORCEMENT   32

SECTION 5.5

  RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS   32

SECTION 5.6

  LIMITATIONS ON SUITS BY SECURITYHOLDERS   32

SECTION 5.7

  UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS   33

SECTION 5.8

  POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT   33

SECTION 5.9

  CONTROL BY HOLDERS OF SECURITIES   33

SECTION 5.10

  WAIVER OF PAST DEFAULTS   34

SECTION 5.11

  TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN CIRCUMSTANCES   34

SECTION 5.12

  RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS   34

ARTICLE VI CONCERNING THE TRUSTEE

  35

SECTION 6.1

  DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT; PRIOR TO DEFAULT   35

SECTION 6.2

  CERTAIN RIGHTS OF THE TRUSTEE   36

SECTION 6.3

  TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF   38

SECTION 6.4

  TRUSTEE AND AGENTS MAY HOLD SECURITIES, GUARANTEES OR COUPONS; COLLECTIONS, ETC   38

SECTION 6.5

  MONEYS HELD BY TRUSTEE   38

SECTION 6.6

  COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM   38

SECTION 6.7

  RIGHT OF TRUSTEE TO RELY ON OFFICER’S CERTIFICATE, ETC   39

SECTION 6.8

  INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR THE TRUSTEE   39

SECTION 6.9

  QUALIFICATION OF TRUSTEE: CONFLICTING INTERESTS   39

SECTION 6.10

  PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE   39

SECTION 6.11

  RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE   39

SECTION 6.12

  ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE   41

SECTION 6.13

  MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF TRUSTEE   42

SECTION 6.14

  PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER   42

SECTION 6.15

  APPOINTMENT OF AUTHENTICATING AGENT   43

 

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ARTICLE VII CONCERNING THE SECURITYHOLDERS  

43

SECTION 7.1

  EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS   43

SECTION 7.2

  PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES   44

SECTION 7.3

  HOLDERS TO BE TREATED AS OWNERS   44

SECTION 7.4

  SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING   44

SECTION 7.5

  RIGHT OF REVOCATION OF ACTION TAKEN   45
ARTICLE VIII SUPPLEMENTAL INDENTURES  

45

SECTION 8.1

  SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS   45

SECTION 8.2

  SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS   46

SECTION 8.3

  EFFECT OF SUPPLEMENTAL INDENTURE   48

SECTION 8.4

  DOCUMENTS TO BE GIVEN TO TRUSTEE   48

SECTION 8.5

  NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES   49
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE  

49

SECTION 9.1

  ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS   49

SECTION 9.2

  SUCCESSOR SUBSTITUTED   49

SECTION 9.3

  OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE   49
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS  

50

SECTION 10.1

  SATISFACTION AND DISCHARGE OF INDENTURE   50

SECTION 10.2

  APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES   53

SECTION 10.3

  REPAYMENT OF MONEYS HELD BY PAYING AGENT   53

SECTION 10.4

  RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO YEARS   54

SECTION 10.5

  INDEMNITY FOR U.S. GOVERNMENT OF OBLIGATIONS   54

SECTION 10.6

  EFFECT ON SUBORDINATION PROVISIONS   54
ARTICLE XI MISCELLANEOUS PROVISIONS  

55

SECTION 11.1

  INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF GENERAL PARTNER OR ISSUER EXEMPT FROM INDIVIDUAL LIABILITY   55

SECTION 11.2

  PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS OF SECURITIES AND COUPONS   55

SECTION 11.3

  SUCCESSORS AND ASSIGNS OF ISSUER AND GUARANTOR BOUND BY INDENTURE   55

 

iii

 


SECTION 11.4

  NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF SECURITIES AND COUPONS   55

SECTION 11.5

  OFFICER’S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE CONTAINED THEREIN   56

SECTION 11.6

  PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS   57

SECTION 11.7

  CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT   57

SECTION 11.8

  NEW YORK LAW TO GOVERN   57

SECTION 11.9

  COUNTERPARTS   57

SECTION 11.10

  EFFECT OF HEADINGS   58

SECTION 11.11

  SECURITIES IN A FOREIGN CURRENCY   58

SECTION 11.12

  JUDGMENT CURRENCY   58

SECTION 11.13

  AGREEMENT TO SUBORDINATE   59
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS  

59

SECTION 12.1

  APPLICABILITY OF ARTICLE   59

SECTION 12.2

  NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS   59

SECTION 12.3

  PAYMENT OF SECURITIES CALLED FOR REDEMPTION   60

SECTION 12.4

  EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION FOR REDEMPTION   61

SECTION 12.5

  MANDATORY AND OPTIONAL SINKING FUNDS   61
ARTICLE XIII THE GUARANTEES  

63

SECTION 13.1

  GUARANTEES   63

SECTION 13.2

  PROCEEDINGS AGAINST THE GUARANTOR   66

SECTION 13.3

  GUARANTEES FOR BENEFIT OF HOLDERS OF SECURITIES   66

SECTION 13.4

  ADDITIONAL GUARANTORS   67

 

 

iv

 


THIS INDENTURE, dated as of November 14, 2005 by and among PLUM CREEK TIMBERLANDS, L.P., a Delaware limited partnership (the “Issuer”), PLUM CREEK TIMBER COMPANY, INC., a Delaware corporation (the “Guarantor”), and U.S. Bank National Association, a national banking association, as trustee (the “Trustee”),

W I T N E S S E T H:

WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture;

WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide, among other things, for the authentication, delivery and administration of the Securities;

WHEREAS, the Guarantor has duly authorized the execution and delivery of this Indenture and its guarantees of the Securities (the “Guarantees”) as provided herein; and

WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;

NOW, THEREFORE:

In consideration of the premises and the purchases of the Securities by the holders thereof, it is mutually covenanted and agreed for the equal and proportionate benefit of the respective holders from time to time of the Securities and of the coupons, if any, appertaining thereto as follows:

ARTICLE I

DEFINITIONS

SECTION 1.1   CERTAIN TERMS DEFINED. The following terms (except as otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or the definitions of which in the Securities Act of 1933, as amended (the “Securities Act”), are referred to in the Trust Indenture Act, including terms defined therein by reference to the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meaning assigned to such terms in the Trust Indenture Act and in the Securities Act as in effect from time to time. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles” means such accounting principles as are generally accepted at the time of any computation unless a different time shall be specified with respect to such series of Securities as provided for in Section 2.3. 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. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.

 

   

1

 

    


“Affiliate” has the same meaning as given to that term in Rule 405 of the Securities Act or any successor provision.

“Authenticating Agent” shall have the meaning set forth in Section 6.15.

“Authorized Newspaper” means a newspaper (which, in the case of The City of New York, will, if practicable, be The Wall Street Journal (Eastern Edition), in the case of the United Kingdom of Great Britain and Northern Ireland (the “United Kingdom”), will, if practicable, be The Financial Times (London Edition) and, in the case of the Grand Duchy of Luxembourg (“Luxembourg”), will, if practicable, be the Luxemburger Wort ) published in an official or common language of the country of publication customarily published at least once a day for at least five days in each calendar week and of general circulation in The City of New York, the United Kingdom or Luxembourg, as applicable. If it shall be impractical in the opinion of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof which is made or given with the approval of the Trustee shall constitute a sufficient publication of such notice.

“Board of Directors” means the board of directors of the Guarantor, the sole member of the General Partner or, if the Issuer shall be succeeded by a corporation pursuant to the provisions of this Indenture, the board of directors of the Issuer’s corporate successor or any committee of such applicable board duly authorized to act generally or in any particular respect hereunder.

“Board Resolution” means a copy of a resolution certified by the secretary or an assistant secretary of the Guarantor or, if the Issuer shall be succeeded by a corporation pursuant to the provisions of this Indenture, of the Issuer’s corporate successor to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“Business Day” means, with respect to any Security, a day that is not a day on which banking institutions in the city (or in any of the cities, if more than one) in which amounts are payable, as specified in the form of such Security, are authorized or required by any applicable law or regulation to be closed.

“Capital Stock” means, with respect to any corporation, any and all shares, interests, rights to purchase (other than convertible or exchangeable indebtedness that is not itself otherwise capital stock), warrants, options, participations or other equivalents of or interests (however designated) in stock issued by that corporation.

“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.

 

   

2

 

    


“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 100 Wall Street, 16th Floor, New York, New York 10004, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Issuer).

“Coupon” means any interest coupon appertaining to an Unregistered Security.

“Covenant Defeasance” shall have the meaning set forth in Section 10.1(C).

“Debt” means, with respect to any Person, any indebtedness of such Person, whether or not contingent, in respect of (i) borrowed money or evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness secured by any Lien on any property or asset owned by such Person, but only to the extent of the lesser of (x) the amount of indebtedness so secured and (y) the fair market value (determined in good faith by the board of directors of such Person or, in the case of the Issuer or a Subsidiary, by the Board of Directors) of the property subject to such Lien, (iii) reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued or amounts representing the balance deferred and unpaid of the purchase price of any property except any such balance that constitutes an accrued expense or trade payable, or (iv) any lease of property by such Person as lessee which is required to be reflected on such Person’s balance sheet as a capitalized lease in accordance with generally accepted accounting principals, and also includes, to the extent not otherwise included, any obligation of such Person to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business), Debt of the types referred to above of another Person (it being understood that Debt shall be deemed to be incurred by such Person whenever such Person shall create, assume, guarantee or otherwise become liable in respect thereof).

“Depositary” means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated as Depositary by the Issuer pursuant to Section 2.3 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of that series.

“Dollar” or “$” means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

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

“Event of Default” means any event or condition specified as such in Section 5.1.

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

 

   

3

 

    


“Fair Value” when used with respect to any Voting Equity Interests of the Issuer means the fair value as determined in good faith by the Board of Directors of the Issuer.

“Foreign Currency” means any coin, currency, currency unit or composite currency, including, without limitation, the euro, issued by the government of one or more countries, other than the United States of America or by any internationally recognized union, confederation or association of such governments.

“General Partner” means Plum Creek Timber I, L.L.C., a Delaware limited liability company and wholly owned subsidiary of the Guarantor, until a successor shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “General Partner” shall mean such successor corporation.

“Guarantees” means each Guarantee executed pursuant to the provisions of this Indenture.

“Guarantor” means Plum Creek Timber Company, Inc., a Delaware corporation until a successor shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor Person.

“Holder,” “Holder of Securities,” “Securityholder” or any other similar terms mean (a) in the case of any Registered Security, the person in whose name such Security is registered in the security register kept by the Issuer for that purpose in accordance with the terms hereof, and (b) in the case of any Unregistered Security, the bearer of such Security, or any Coupon appertaining thereto, as the case may be.

“Indenture” means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder, provided, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to one or more series of Securities for which such person is trustee, this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of those particular series of Securities for which such Person is Trustee established as contemplated hereunder, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such person is not Trustee, regardless of when such terms or provisions were adopted.

“IRS” means the Internal Revenue Service of the United States Department of the Treasury, or any successor entity.

“Issuer” means (except as otherwise provided in Article IX) Plum Creek Timberlands, L.P., a Delaware limited partnership, and, subject to Article IX, its successors and assigns.

“Issuer Order” means a written statement, request or order signed in the name of the Issuer by the chairman of the Board of Directors, or the president, any vice president or the treasurer of the General Partner or Guarantor, as sole member of the General Partner, provided that if the Issuer shall be succeeded by a corporation pursuant to the provisions of this Indenture, “Issuer Order” shall mean a written statement, request, or order of the Issuer signed in its name by the chairman of the Board of Directors, the president, any vice president or the treasurer of the Issuer.

 

   

4

 

    


“Judgment Currency” has the meaning set forth in Section 11.12.

“Lien” means any mortgage, deed of trust, lien, charge, pledge, security interest, security agreement or other encumbrance of any kind.

“Non-U.S. Person” means any person that is not a “U.S. person” as such term is defined in Rule 902 of the Securities Act.

“Officer’s Certificate” means a certificate signed by the chairman of the Board of Directors, or the president, any vice president or the treasurer of the General Partner or Guarantor, as sole member of the General Partner and delivered to the Trustee, provided that if the Issuer shall be succeeded by a corporation pursuant to the provisions of this Indenture, “Officer’s Certificate” shall mean a certificate signed by the chairman of the board of directors, the president or any vice president or treasurer of such successor corporation, and delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act and include the statements provided for in Section 11.5.

“Opinion of Counsel” means an opinion in writing signed by legal counsel who may be an employee of the Issuer or the General Partner or other counsel satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture Act and include the statements provided for in Section 11.5.

“Original Issue Date” of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.

“Original Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 5.1.

“Outstanding” (except as otherwise provided in Section 7.4), when used with reference to Securities, means, subject to the provisions of Section 7.4, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:

(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

(2) Securities, or portions thereof, for the payment or redemption of which moneys or U.S. Government Obligations (as provided for in Section 10.1) in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if the Issuer shall act as its own paying agent), provided, that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or provisions satisfactory to the Trustee shall have been made for giving such notice; and

 

   

5

 

    


(3) Securities which shall have been paid or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.9 (except with respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Issuer).

In determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 5.1.

“Periodic Offering” means an offering of Securities of a series from time to time, the specific terms of which Securities, including, without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Issuer or its agents upon the issuance of such Securities.

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

“principal” whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium, if any,”  provided, however, that such inclusion of premium, if any, shall under no circumstances result in the double counting of such premium for the purpose of any calculation required hereunder.

“record date” shall have the meaning set forth in Section 2.7.

“Registered Global Security” means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary for such series in accordance with Section 2.4, and bearing the legend prescribed in Section 2.4 and any other legend required by the Depositary for such series.

“Registered Security” means any Security registered on the Security register of the Issuer.

“Required Currency” shall have the meaning set forth in Section 11.12.

“Responsible Officer” when used with respect to the Trustee means the chairman of the board of directors, any vice chairman of the board of directors, the chairman of the trust committee, the chairman of the executive committee, any vice chairman of the executive committee, the president, any vice president (whether or not designated by numbers or words added before or after the title “Vice President”), the cashier, the secretary, the treasurer, any trust officer, any assistant trust officer, any assistant vice president, any assistant cashier, any assistant secretary, any assistant treasurer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

   

6

 

    


“Security” or “Securities” (except as otherwise provided in Section 7.4) has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities that have been authenticated and delivered under this Indenture.

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

“Senior Indebtedness”, when used with respect to the Subordinated Securities of any series, shall have the meaning established pursuant to Subsection 2.3(9) with respect to the Subordinated Securities of such series.

“Senior Securities” means Securities other than Subordinated Securities.

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

“Subordinated Securities” means Securities that by the terms established pursuant to Subsection 2.3(9) are subordinated in right of payment to Senior Indebtedness of the Issuer.

“Subordination Provisions”, when used with respect to the Subordinated Securities of any series, shall have the meaning established pursuant to Subsection 2.3(9) with respect to the Subordinated Securities of such series.

“Subsidiary,” with respect to any Person, means (i) a corporation a majority of whose Voting Equity Interests is at the time, directly or indirectly, owned by such Person, by such Person and one or more Subsidiaries of such Person or by one or more Subsidiaries of such Person, (ii) any other Person (other than a corporation) in which such Person, one or more Subsidiaries of such Person, or such Person and one or more Subsidiaries of such Person, directly or indirectly, at the date of determination thereof has at least majority ownership interest, or (iii) a partnership in which such Person or a Subsidiary of such Person is, at the time, a general partner.

“Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject to the provisions of Article VI, shall also include any successor trustee. “Trustee” shall also mean or include each Person who is then a trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the trustee with respect to the Securities of such series.

“Unregistered Security” means any Security other than a Registered Security.

“U.S. Government Obligations” shall have the meaning set forth in Section 10.1(A).

“Voting Equity Interests” means Equity Interests which at the time are entitled to vote in the election of, as applicable, directors, members or partners generally; provided , that, for the purposes hereof, Equity Interests that carry only the right to vote conditionally on the happening of an event shall not be considered Voting Equity Interests whether or not such event shall have happened.

 

   

7

 

    


“Yield to Maturity” means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.

ARTICLE II

SECURITIES

SECTION 2.1   FORMS GENERALLY. The Securities and Guarantees of each series and the Coupons, if any, to be attached thereto shall be substantially in such form (not inconsistent with this Indenture) as shall be established by or pursuant to one or more Board Resolutions (as set forth in a Board Resolution or, to the extent established pursuant to but not set forth in a Board Resolution, an Officer’s Certificate detailing such establishment) or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities, Guarantees and Coupons, if any, as evidenced by their execution of such Securities, Guarantees and Coupons.

The definitive Securities and Coupons, if any, (and Guarantees) shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities and Coupons, if any, (and Guarantees) as evidenced by their execution of such Securities and Coupons, if any.

SECTION 2.2   FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION. The Trustee’s certificate of authentication on all

Securities shall be in substantially the following form:

“This is one of the Securities referred to in the within-mentioned Indenture.

 

 

U.S. Bank National Association,

as Trustee

 
  By    

 

 
    Authorized Signatory”  

If at any time there shall be an Authenticating Agent appointed with respect to any series of Securities, then the Trustee’s Certificate of Authentication to be borne by the Securities of each such series shall be substantially as follows:

 

   

8

 

    


“This is one of the Securities referred to in the within-mentioned Indenture.

 

 

U.S. Bank National Association,

as Authenticating Agent

 
  By    

 

 
    Authorized Signatory”  

SECTION 2.3   AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

The Securities may be issued in one or more series. There shall be established in or pursuant to one or more Board Resolutions (and to the extent established pursuant to but not set forth in a Board Resolution, in an Officer’s Certificate detailing such establishment) or established in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series,

(1) the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities of all other series, and which may be part of a series of Securities previously issued;

(2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);

(3) if other than Dollars, the Foreign Currency or Foreign Currencies in which the Securities of the series are denominated;

(4) the date or dates on which the principal of the Securities of the series is payable or the method of determination thereof;

(5) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall be payable, the terms and conditions of any deferral of interest and the additional interest, if any, thereon, the right, if any, of the Issuer to extend the interest payment periods and the duration of the extensions and (in the case of Registered Securities) the date or dates on which a record shall be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;

(6) the place or places where and the manner in which, the principal of and any interest on Securities of the series shall be payable, if other than as provided in Section 3.2;

 

   

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(7) the right, if any, of the Issuer to redeem Securities, in whole or in part, at its option and the period or periods within which, or the date or dates on which, the price or prices at which and any terms and conditions upon which Securities of the series may be so redeemed, pursuant to any sinking fund or otherwise;

(8) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which or the date or dates on which, and any terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;

(9) if the Securities of such series are Subordinated Securities, the terms pursuant to which the Securities of such series will be made subordinate in right of payment to Senior Indebtedness and the definition of such Senior Indebtedness with respect to such series (in the absence of an express statement to the effect that the Securities of such series are subordinate in right of payment to all such Senior Indebtedness, the Securities of such series shall not be subordinate to Senior Indebtedness and shall not constitute Subordinated Securities); and, in the event that the Securities of such series are Subordinated Securities, such Board Resolution, Officer’s Certificate or supplemental indenture, as the case may be, establishing the terms of such series shall expressly state which articles, sections or other provisions thereof constitute the “Subordination Provisions” with respect to the Securities of such series;

(10) if other than denominations of $1,000 and any integral multiple thereof in the case of Registered Securities, or $1,000 and $5,000 in the case of Unregistered Securities, the denominations in which Securities of the series shall be issuable;

(11) the percentage of the principal amount at which the Securities will be issued and if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof and the terms and conditions of any acceleration;

(12) if other than the coin, currency or currencies in which the Securities of the series are denominated, the coin, currency or currencies in which payment of the principal of or interest on the Securities of such series shall be payable, including composite currencies or currency units;

(13) if the principal of or interest on the Securities of the series are to be payable, at the election of the Issuer or a Holder thereof, in a coin or currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made;

(14) if the amount of payments of principal of and interest on the Securities of the series may be determined with reference to an index or formula based on a coin, currency, composite currency or currency unit other than that in which the Securities of the series are denominated, the manner in which such amounts shall be determined;

 

   

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(15) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable as Registered Global Securities) or Unregistered Securities (with or without Coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale or delivery of Unregistered Securities or the payment of interest thereon and, if other than as provided in Section 2.8, the terms upon which Unregistered Securities of any series may be exchanged for Registered Securities of such series and vice versa;

(16) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series held by a person who is not a U.S. person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem the Securities of the series rather than pay such additional amounts;

(17) if the Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;

(18) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars of any other agents with respect to the Securities of such series;

(19) any deletion from modification of or addition to the Events of Default or covenants with respect to the Securities of such series;

(20) if the Securities of the series are to be convertible into or exchangeable for any other security or property of the Issuer, including, without limitation, securities of another Person held by the Issuer or its Affiliates and, if so, the terms thereof; and

(21) any other terms of the series.

All Securities of any one series, the Guarantees appertaining to any Securities of such series and Coupons, if any, appertaining thereto shall be substantially identical, except in the case of Registered Securities as to denomination and except as may otherwise be provided by or pursuant to the Board Resolution or Officer’s Certificate referred to above or as set forth in any indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to such Board Resolution, such Officer’s Certificate or in any indenture supplemental hereto.

SECTION 2.4   AUTHENTICATION AND DELIVERY OF SECURITIES. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons and Guarantees, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities, Guarantees and Coupons, if any, to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities and Guarantees of such series and Coupons, if any, appertaining thereto shall be

 

   

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determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:

(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities, Guarantees and Coupons, if any, are not to be delivered to the Issuer, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;

(2) any Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities, Guarantees and Coupons, if any, were established;

(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities, Guarantees and Coupons, if any, stating that the form or forms and terms of the Securities, Guarantees and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and

(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:

(a) the form or forms of the Securities, Guarantees and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;

(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to a Board Resolution, an

 

   

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Officer’s Certificate or a supplemental indenture in accordance with this Indenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and

(c) such Securities, Guarantees and Coupons, if any, when executed by the Issuer and the Guarantor, as applicable, and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof, and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally, (ii) rights of acceleration, if any, and (iii) the availability of equitable remedies may be limited by equitable principles of general applicability and such counsel need express no opinion with regard to the enforceability of Section 6.6 or of a judgment denominated in a currency other than Dollars.

In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its subsidiaries and certificates of public officials.

The Trustee shall have the right to decline to authenticate and deliver any Securities under this section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise.

If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet cancelled, (ii) shall be registered in the name of the Depositary for such Registered Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or delivered or held

 

   

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pursuant to such Depositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depositary to the 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.”

Each Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.

SECTION 2.5   EXECUTION OF SECURITIES. The Securities and each Coupon appertaining thereto, if any, shall be executed on behalf of the Issuer by the chairman of the Board of Directors, or the president or any vice president of the General Partner or Guarantor, as sole member of the General Partner. The Guarantee shall be executed on behalf of the Guarantor by the chairman of the Board of Directors or the president or any vice president of the Guarantor and attested to by its treasurer, any assistant treasurer, its secretary or any assistant secretary. The signature of any of these officers on the Securities and each Coupon appertaining thereto, if any, or Guarantee may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities or the Guarantees.

The Guarantees, Securities, or Coupons, if any, bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Issuer’s General Partner, the Guarantor or any successor Person of the Issuer, as applicable shall bind the Issuer or the Guarantor, notwithstanding that such individuals or any of them have ceased to hold such officer prior to the authentication and delivery of such Securities, Coupons or Guarantees or did not hold such offices at the date of such Securities, Coupons or Guarantees.

SECTION 2.6   CERTIFICATE OF AUTHENTICATION. Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. No Coupon or Guarantee shall be entitled to the benefits of this Indenture or shall be valid and obligatory for any purpose until the certificate of authentication on the Security to which such Coupon or Guarantee appertains shall have been duly executed by the Trustee. The execution of such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.

SECTION 2.7   DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST. The Securities of each series shall be issuable as Registered Securities or Unregistered Securities in denominations established as contemplated by Section 2.3 or, with respect to the Registered Securities of any series, if not so established, in denominations of $1,000 and any integral multiple thereof. If denominations of Unregistered Securities of any series are not so established, such Securities shall be issuable in denominations of $1,000 and $5,000. The Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer executing the same may determine with the approval of the Trustee, as evidenced by the execution and authentication thereof.

 

   

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Each Registered Security and Guarantee shall be dated the date of its authentication. Each Unregistered Security shall be dated as provided in the Board Resolution referred to in Section 2.3. The Securities of each series shall bear interest, if any, from the date, and such interest shall be payable on the dates, established as contemplated by Section 2.3.

The person in whose name any Registered Security of any series is registered at the close of business on any record date applicable to a particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the record date and prior to such interest payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such series, in which case such defaulted interest shall be paid to the persons in whose names Outstanding Registered Securities for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders of Registered Securities not less than 15 days preceding such subsequent record date. The term “record date” as used with respect to any interest payment date (except a date for payment of defaulted interest) for the Securities of any series shall mean the date specified as such in the terms of the Registered Securities of such series established as contemplated by Section 2.3, or, if no such date is so established, if such interest payment date is the first day of a calendar month, the fifteenth day of the preceding calendar month or, if such interest payment date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business Day.

SECTION 2.8   REGISTRATION, TRANSFER AND EXCHANGE. The Issuer will keep at each office or agency to be maintained for the purpose as provided in Section 3.2 for each series of Securities a register or registers in which, subject to such reasonable regulations as the Issuer may prescribe, it will provide for the registration of Registered Securities of such series and the registration of transfer of Registered Securities of such series. Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times such register or registers shall be open for inspection by the Trustee.

Upon due presentation for registration of transfer of any Registered Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.2, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Registered Security or Registered Securities of the same series, maturity date, interest rate and original issue date in authorized denominations for a like aggregate principal amount.

Unregistered Securities (except for any temporary global Unregistered Securities) and Coupons (except for Coupons attached to any temporary global Unregistered Securities) shall be transferable by delivery.

 

   

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At the option of the Holder thereof, Registered Securities of any series (other than a Registered Global Security, except as set forth below) may be exchanged for a Registered Security or Registered Securities of such series having authorized denominations and an equal aggregate principal amount, upon surrender of such Registered Securities to be exchanged at the agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.2 and upon payment, if the Issuer shall so require, of the charges hereinafter provided. If the Securities of any series are issued in both registered and unregistered form, at the option of the Holder thereof, except as otherwise specified pursuant to Section 2.3, Unregistered Securities of any series may be exchanged for Registered Securities of such series having authorized denominations and an equal aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.2, with, in the case of Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured Coupons in default thereto appertaining, and upon payment, if the Issuer shall so require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered Securities of any series, maturity date, interest rate and original issue date are issued in more than one authorized denomination, except as otherwise specified pursuant to Section 2.3, such Unregistered Securities may be exchanged for Unregistered Securities of such series having authorized denominations and an equal aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3, with, in the case of Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured Coupons in default thereto appertaining, and upon payment, if the Issuer shall so require, of the charges hereinafter provided. Registered Securities of any series may not be exchanged for Unregistered Securities of such series unless (1) otherwise specified pursuant to Section 2.3 and (2) the Issuer has delivered to the Trustee an Opinion of Counsel that (x) the Issuer has received from the IRS a ruling or (y) since the date hereof, there has been a change in the applicable United States Federal income tax law, in either case to the effect that the inclusion of terms permitting Registered Securities to be exchanged for Unregistered Securities would result in no United States Federal income tax effect adverse to the Issuer or to any Holder. Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. All Securities and Coupons, if any, surrendered upon any exchange or transfer provided for in this Indenture shall be promptly cancelled and disposed of by the Trustee, and the Trustee shall deliver a certificate of disposition thereof to the Issuer.

All Registered Securities presented for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed, by the Holder or his attorney duly authorized in writing.

The Issuer or the registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.

The Issuer shall not be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days preceding the first mailing of notice of redemption of Securities of such series to be redeemed or (b) any Securities selected, called or being called for redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the portion thereof not so to be redeemed.

 

   

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Notwithstanding any other provision of this Section 2.8, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Registered Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.

If at any time the Depositary for any Registered Securities of a series represented by one or more Registered Global Securities notifies the Issuer that it is unwilling or unable to continue as Depositary for such Registered Securities or if at any time the Depositary for such Registered Securities shall no longer be eligible under Section 2.4, the Issuer shall appoint a successor Depositary eligible under Section 2.4 with respect to such Registered Securities. If a successor Depositary eligible under Section 2.4 for such Registered Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer’s election pursuant to Section 2.3 that such Registered Securities be represented by one or more Registered Global Securities shall no longer be effective and the Issuer will execute, and the Trustee, upon receipt of an Officer’s Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing such Registered Securities in exchange for such Registered Global Security or Securities.

The Issuer may at any time and in its sole discretion determine that the Registered Securities of any series issued in the form of one or more Registered Global Securities shall no longer be represented by a Registered Global Security or Securities. In such event the Issuer will execute, and the Trustee, upon receipt of any Officer’s Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing such Registered Securities, in exchange for such Registered Global Security or Securities.

If specified by the Issuer pursuant to Section 2.3 with respect to Securities represented by a Registered Global Security, the Depositary for such Registered Global Security may surrender such Registered Global Security in exchange in whole or in part for Securities of the same series in definitive registered form on such terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall execute, and the Trustee shall authenticate and deliver, without service charge,

(i) to the Person specified by such Depositary a new Registered Security or Securities of the same series, 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 Registered Global Security; and

 

   

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(ii) to such Depositary a new Registered Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Registered Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant to clause (i) above.

Upon the exchange of a Registered Global Security for Securities in definitive registered form without coupons, in authorized denominations, such Registered Global Security shall be cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities in definitive registered form without coupons issued in exchange for a Registered Global Security pursuant to this Section 2.8 shall be registered in such names and in such authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered.

All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.

Notwithstanding anything herein or in the terms of any series of Securities to the contrary, none of the Issuer, the Trustee or any agent of the Issuer or the Trustee (any of which, other than the Issuer, shall rely on an Officer’s Certificate and an Opinion of Counsel) shall be required to exchange any Unregistered Security for a Registered Security if such exchange would result in United States Federal income tax consequences adverse to the Issuer (such as, for example, the inability of the Issuer to deduct from its income, as computed for United States Federal income tax purposes, the interest payable on the Unregistered Securities) under then applicable United States Federal income tax laws.

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

SECTION 2.9   MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES. In case any temporary or definitive Security, any Coupon appertaining to any Security or Guarantee appertaining to any Security shall be mutilated, defaced, destroyed, lost or stolen, the Issuer in its discretion may execute and, upon the written request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of the same series, maturity date, interest rate and original issue date, bearing a number or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen with Coupons and Guarantees corresponding to the Coupons and Guarantees appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution for the Security to which such mutilated, defaced, destroyed, lost or stolen Coupon

 

   

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or Guarantee appertained, with Coupons or Guarantees appertaining thereto corresponding to the Coupons or Guarantees so mutilated, defaced, destroyed, lost or stolen. In every case, the applicant for a substitute Security, Guarantee or Coupon shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security, Guarantee or Coupon and of the ownership thereof, and in the case of mutilation or defacement shall surrender the Security and related Guarantees and Coupons to the Trustee or such agent.

Upon the issuance of any substitute Security, Guarantee or Coupon, the Issuer or the registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) or its agent connected therewith. In case any Security or Coupon which has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, instead of issuing a substitute Security, pay or authorize the payment of the same or the relevant Coupon (without surrender thereof except in the case of a mutilated or defaced Security or Coupon), if the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security or Coupons and of the ownership thereof.

Every substitute Security or Coupon of any series issued pursuant to the provisions of this Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security or Coupon shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities or Coupons of such series duly authenticated and delivered hereunder. All Securities, Guarantees and Coupons shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities, Guarantees and Coupons and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

SECTION 2.10   CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All Securities and Coupons surrendered for payment, redemption, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if any, if surrendered to the Issuer or any agent of the Issuer or the Trustee or any agent of the Trustee, shall be delivered to the Trustee or its agent for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no Securities or Coupons shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee or its agent shall dispose of cancelled Securities and Coupons held by it and deliver a certificate of disposition to the Issuer. If the Issuer or its agent shall acquire any of the Securities or Coupons, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities or Coupons unless and until the same are delivered to the Trustee or its agent for cancellation.

 

   

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SECTION 2.11   TEMPORARY SECURITIES. Pending the preparation of definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as Registered Securities without coupons, or as Unregistered Securities with or without coupons attached thereto, of any authorized denomination, and substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence of the Trustee as evidenced by the execution and authentication thereof. Temporary Securities may contain such references to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Registered Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.2 and, in the case of Unregistered Securities, at any agency maintained by the Issuer for such purpose as specified pursuant to Section 2.3, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series an equal aggregate principal amount of definitive Securities of the same series having authorized denominations and, in the case of Unregistered Securities, having attached thereto any appropriate Coupons. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series, unless otherwise established pursuant to Section 2.3. The provisions of this Section are subject to any restrictions or limitations on the issue and delivery of temporary Unregistered Securities of any series that may be established pursuant to Section 2.3 (including any provision that Unregistered Securities of such series initially be issued in the form of a single global Unregistered Security to be delivered to a depositary or agency located outside the United States and the procedures pursuant to which definitive or global Unregistered Securities of such series would be issued in exchange for such temporary global Unregistered Security).

ARTICLE III

COVENANTS OF THE ISSUER

SECTION 3.1   PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of, and interest on, if any, each of the Securities of such series (together with any additional amounts payable pursuant to the terms of such Securities) at the place or places, at the respective time or times and in the manner provided in such Securities and in the Coupons, if any, appertaining thereto and in this Indenture. The interest on Securities with Coupons attached (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only upon presentation and surrender of the several Coupons for such interest installments as are evidenced thereby as they severally mature. If any temporary Unregistered Security provides that interest thereon may be paid while such Security is in temporary form, the interest on any such temporary Unregistered Security (together with

 

   

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any additional amounts payable pursuant to the terms of such Security) shall be paid, as to the installments of interest evidenced by Coupons attached thereto, if any, only upon presentation and surrender thereof, and, as to the other installments of interest, if any, only upon presentation of such Securities for notation thereon of the payment of such interest, in each case subject to any restrictions that may be established pursuant to Section 2.3. The interest, if any, on Registered Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to or upon the written order of the Holders thereof and, at the option of the Issuer, may be paid by wire transfer or by mailing checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the Securities register of the Issuer.

SECTION 3.2   OFFICES FOR PAYMENTS, ETC. So long as any Registered Securities are authorized for issuance pursuant to this Indenture or are outstanding hereunder, the Issuer will maintain in the Borough of Manhattan, The City of New York, an office or agency where the Registered Securities of each series may be presented for payment, where the Securities of each series may be presented for exchange as is provided in this Indenture and, if applicable, pursuant to Section 2.3 and where the Registered Securities of each series may be presented for registration of transfer as in this Indenture provided.

The Issuer will maintain one or more offices or agencies in a city or cities located outside the United States (including any city in which such an agency is required to be maintained under the rules of any stock exchange on which the Securities of such series are listed) where the Unregistered Securities, if any, of each series and Coupons, if any, appertaining thereto may be presented for payment. No payment on any Unregistered Security or Coupon will be made upon presentation of such Unregistered Security or Coupon at an agency of the Issuer within the United States, nor will any payment be made by transfer to an account in, or by mail to an address in, the United States unless pursuant to applicable United States laws and regulations then in effect such payment can be made without tax consequences adverse to the Issuer. Notwithstanding the foregoing, payments in Dollars of Unregistered Securities of any series and Coupons appertaining thereto which are payable in Dollars may be made at an agency of the Issuer maintained in the Borough of Manhattan, The City of New York if such payment in Dollars at each agency maintained by the Issuer outside the United States for payment on such Unregistered Securities is illegal or effectively precluded by exchange controls or other similar restrictions.

The Issuer will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices and demands to or upon the Issuer in respect of the Securities of any series, the Coupons appertaining thereto or this Indenture may be served.

The Issuer will give to the Trustee written notice of the location of each such office or agency and of any change of location thereof. In case the Issuer shall fail to maintain any agency required by this Section to be located in the Borough of Manhattan, The City of New York, or shall fail to give such notice of the location or for any change in the location of any of the above agencies, presentations and demands may be made and notices may be served at the Corporate Trust Office of the Trustee.

 

   

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The Issuer may from time to time designate one or more additional offices or agencies where the Securities of a series and any Coupons appertaining thereto may be presented for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and pursuant to Section 2.3 and where the Registered Securities of that series may be presented for registration of transfer as in this Indenture provided, and the Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or expedient; provided , that no such designation or rescission shall in any manner relieve the Issuer of its obligations to maintain the agencies provided for in this Section. The Issuer shall give to the Trustee prompt written notice of any such designation or rescission thereof.

SECTION 3.3   APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.

SECTION 3.4   PAYING AGENTS. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,

(a) that it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series, or Coupons appertaining thereto, if any, or of the Trustee;

(b) that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest on the Securities of such series when the same shall be due and payable; and

(c) that it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request at any time during the continuance of the failure referred to in the foregoing clause (b).

The Issuer will, on or prior to each due date of the principal of or interest on the Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify the Trustee of any failure to take such action.

If the Issuer shall act as its own paying agent with respect to the Securities of any series, it will, on or before each due date of the principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series or the Coupons appertaining thereto a sum sufficient to pay such principal or interest so becoming due. The Issuer will promptly notify the Trustee of any failure to take such action.

Anything in this Section to the contrary notwithstanding, but subject to Section 10.1, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.

 

   

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Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is

subject to the provisions of Sections 10.3 and 10.4.

SECTION 3.5   COMPLIANCE CERTIFICATES. The Issuer will furnish to the Trustee within 90 days following the end of each fiscal year a brief certificate (which need not comply with Section 11.5) from the principal executive, financial or accounting officer of the Issuer stating that in the course of the performance by the signer of his or her duties as an officer of the Issuer he or she would normally have knowledge of any default or non-compliance by the Issuer in the performance of any covenants or conditions contained in this Indenture, stating whether or not he or she has knowledge of any such default or non-compliance and, if so, describing each such default or non-compliance of which the signer has knowledge and the nature thereof.

SECTION 3.6   EXISTENCE. Subject to Article IX, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and the rights (charter and statutory), licenses and franchises of the Issuer and its Subsidiaries; provided, that the Issuer shall not be required to preserve any such right, license or franchise, if, in the judgment of the Issuer, the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Subsidiaries taken as a whole and the loss thereof is not disadvantageous in any material respect to the Securityholders.

SECTION 3.7   LUXEMBOURG PUBLICATIONS. In the event of the publication of any notice pursuant to Section 5.11, 6.11, 6.12, 8.2, 10.4, 11.4 or 12.2, the party making such publication in the Borough of Manhattan, The City of New York and London shall also, to the extent that notice is required to be given to Holders of Securities of any series by applicable Luxembourg law or stock exchange regulation, as evidenced by an Officer’s Certificate delivered to such party, make a similar publication in Luxembourg.

ARTICLE IV

SECURITYHOLDER LISTS AND REPORTS BY THE

ISSUER AND THE TRUSTEE

SECTION 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF SECURITYHOLDERS. If and so long as the Trustee shall not be the Security registrar for the Securities of any series, the Issuer and any other obligor on the Securities will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of the Registered Securities of such series pursuant to Section 312 of the Trust Indenture Act:

(a) semi-annually not more than 5 days after each record date for the payment of interest on such Registered Securities, as hereinabove specified, as of such record date and on dates to be determined pursuant to Section 2.3 for non-interest bearing Registered Securities in each year; and

(b) at such other times as the Trustee may reasonably request in writing, within thirty days after receipt by the Issuer of any such request as of a date not more than 15 days prior to the time such information is furnished.

 

   

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SECTION 4.2   REPORTS BY THE ISSUER. The Issuer covenants to file with the Trustee, within 15 days after the Guarantor is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports that the Guarantor may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act or pursuant to Section 314 of the Trust Indenture Act.

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).

SECTION 4.3 REPORTS BY THE TRUSTEE.

(a) On or before the first July 15 which occurs not less than 60 days after the earliest date of issuance of any Securities and on or before July 15 in each year thereafter, so long as any Securities are Outstanding hereunder, the Trustee shall transmit by mail as provided below to the Securityholders of each series of outstanding Securities, as hereinafter in this Section provided, a brief report dated as of the preceding May 15 with respect to:

(i) its eligibility under Section 6.10 and its qualification under Section 6.9, or in lieu thereof, if to the best of its knowledge it has continued to be eligible and qualified under such Sections, a written statement to such effect;

(ii) the character and amount of any advances (and if the Trustee elects to so state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities of such series, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than 0.5% of the principal of the Securities of such series outstanding on the date of such report;

(iii) the amount, interest rate and maturity date of all other indebtedness owing by the Issuer (or any other obligor on the Securities of such series) to the Trustee in its individual capacity on the date of such report, with a brief description of any property held as collateral security therefor, except any indebtedness based upon a creditor relationship;

(iv) the property and funds, if any, physically in the possession of the Trustee (as such) in respect of the Securities of such series on the date of such report;

(v) any additional issue of Securities of such series which the Trustee has not previously reported; and

 

   

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(vi) any action taken by the Trustee in the performance of its duties under this Indenture which the Trustee has not previously reported and which in the Trustee’s opinion materially affects the Securities of such series, except action in respect of a default, notice of which has been or is to be withheld by it in accordance with the provisions of Section 5.11.

(b) The Trustee shall transmit to the Securityholders of each series, as provided in subsection (c) of this Section, a brief report with respect to the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) in respect of the Securities of such series since the date of the last report transmitted pursuant to the provisions of subsection (a) of this Section (or if no such report has yet been so transmitted, since the date of this Indenture) for the reimbursement of which it claims or may claim a lien or charge prior to that of the Securities of such series on property or funds held or collected by it as Trustee and which it has not previously reported pursuant to this subsection (b), except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining unpaid at any time aggregate 10% or less of the principal amount of Securities of such series outstanding at such time, such report to be transmitted within 90 days after such time.

(c) Reports pursuant to this Section shall be transmitted by mail to all Holders of Securities of such series, as the names and addresses of such Holders appear upon the Securities register as of a date not more than 15 days prior to the mailing thereof.

(d) A copy of each such report shall, at the time of such transmission to Securityholders, be furnished to the Issuer and be filed by the Trustee with each stock exchange upon which the Securities of such series are listed and also with the Commission. The Issuer agrees to notify the Trustee when and as Securities of any series become listed on any national securities exchange.

ARTICLE V

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

ON EVENT OF DEFAULT

SECTION 5.1   EVENT OF DEFAULT DEFINED, ACCELERATION OF MATURITY; WAIVER OF DEFAULT. “Event of Default” with respect to Securities of any series, 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 and 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 Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; provided, that, a valid extension of an interest payment period by the Issuer in accordance with the terms of such Securities shall not constitute a failure to pay interest; or

 

   

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(b) default in the payment of all or any part of the principal on any of the Securities of such series as and when the same shall become due and payable either at maturity, upon any redemption, by declaration or otherwise; or

(c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or

(d) failure on the part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Issuer in the Securities of such series or contained in this Indenture (other than a covenant or agreement included in this Indenture solely for the benefit of a series of Securities other than such series) 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 Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Issuer by the Trustee, or to the Issuer and the Trustee by the holders of at least 25% in aggregate principal amount of the Outstanding Securities of the series to which such covenant or agreement relates; or

(e) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer, the General Partner or the Guarantor 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 Issuer, the General Partner or the Guarantor for any substantial part of its or their respective property or ordering the winding up or liquidation of its or their affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or

(f) the Issuer, the General Partner or the Guarantor 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 Issuer, the General Partner or the Guarantor or for any substantial part of its or their property, or make any general assignment for the benefit of creditors; or

(g) any other Event of Default provided in the supplemental indenture, officer’s certified or Board Resolution under which such series of Securities is issued or in the form of Security for such series.

If an Event of Default described in clause (a), (b) or (c) occurs and is continuing, then, and in each and every such case, except for any series of Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, 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.

 

   

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Except as otherwise provided in the terms of any series of Senior Securities pursuant to Section 2.3, if an Event of Default described in clause (d) or (g) above with respect to all series of the Senior Securities then Outstanding, occurs and is continuing, then, and in each and every such case, unless the principal of all of the Senior 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 Senior Securities then Outstanding hereunder (treated as one class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Senior Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all of the Senior Securities 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 (e) or (f) above occurs and is continuing, then the principal amount of all the Senior 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.

Except as otherwise provided in the terms of any series of Subordinated Securities pursuant to Section 2.3, if an Event of Default described in clause (d) or (g) above with respect to all series of Subordinated Securities then Outstanding, occurs and is continuing, then, and in each and every such case, unless the principal of all of the Subordinated 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 Subordinated Securities then Outstanding hereunder (treated as one class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Subordinated Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all of the Subordinated Securities 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 (e) or (f) above occurs and is continuing, then the principal amount of all of the Subordinated 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.

If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of Default is with respect to less than all series of Senior Securities then Outstanding, then, and in each and every such case, except for any series of Senior Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Senior Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, 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.

 

   

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If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of Default is with respect to less than all series of Subordinated Securities then Outstanding, then, and in each and every such case, except for any series of Subordinated Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Subordinated Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, 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.

The foregoing provisions are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) 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 Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay

(i) all matured installments of interest upon all the Securities of such series (or all the Securities, as the case may be); and

(ii) the principal of any and all Securities of such series (or of all the Securities, as the case may be) 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 or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit; and

(iv) all amounts payable to the Trustee pursuant to Section 6.6; and

(B) all Events of Default under the Indenture, other than the non-payment of the principal of Securities 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 in aggregate principal amount of all the Securities of such series voting as a separate class (or of all the Securities, as the case may be, voting as a single class), then Outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults with respect to such series (or with respect to all the Securities, as the case may be) 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.

 

   

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For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.

SECTION 5.2   COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT. The Issuer covenants that (a) in case default shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days, or (b) in case default shall be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon any redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and payable on all Securities of such series, and such Coupons, 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 or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series); 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 6.6 in respect of Securities of such series.

Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the registered Holders, whether or not the Securities of such series be overdue.

In case the Issuer 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 Issuer, the Guarantor or any other obligor upon the Securities or Guarantees of such series and collect in the manner provided by law out of the property of the Issuer, the Guarantor or any other obligor upon the Securities or Guarantees of such series, wherever situated, all the moneys adjudged or decreed to be payable.

 

   

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In case there shall be pending proceedings relative to the Issuer, the Guarantor or any other obligor upon the Securities 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 Issuer, the Guarantor or their property or such other obligor, or in case of any other comparable judicial proceedings relative to the Issuer, the Guarantor or other obligor upon the Securities, or to the creditors or property of the Issuer, the Guarantor or such other obligor, the Trustee, irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand 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 (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities or Guarantees of any series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for amounts payable to the Trustee under Section 6.6) and of the Securityholders allowed in any judicial proceedings relative to the Issuer, any Guarantor or other obligor upon the Securities, or to the creditors or property of the Issuer or such other obligor; and

(b) unless prohibited by applicable law and regulations, to vote on behalf of the holders of the Securities or Guarantees of any series 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 person 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 Securityholders 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 Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee its costs and expenses of collection and all other amounts due to it pursuant to Section 6.6.

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 Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or Guarantees of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder 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 Securities or Guarantees of any series or Coupons appertaining to such Securities, may be enforced by the Trustee without the possession of any of the Securities or Guarantees of such series or Coupons appertaining to such Securities 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 Securities, Guarantees or Coupons appertaining to such Securities in respect of which such action was taken, after payment of all sums due to the Trustee under Section 6.6 in respect of such Securities.

 

   

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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 Securities, Guarantees or Coupons appertaining to such Securities in respect to which such action was taken, and it shall not be necessary to make any Holders of such Securities, Guarantees or Coupons appertaining to such Securities parties to any such proceedings.

SECTION 5.3   APPLICATION OF PROCEEDS. Any moneys collected by the Trustee pursuant to this Article in respect of any series 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 Securities, Guarantees and Coupons appertaining to such Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities of like series if only partially paid, or upon surrender thereof if fully paid:

FIRST: To the payment of costs and expenses applicable to such series of Securities and Guarantees in respect of which monies have been collected, including all amounts due to the Trustee and each predecessor Trustee pursuant to Section 6.6 in respect to such series of Securities;

SECOND: If the Securities of such series are Subordinated Securities, to the payment of amounts then due and unpaid to the holders of Senior Indebtedness with respect to such series, to the extent required pursuant to the Subordination Provisions established with respect to the Securities of such series pursuant to Section 2.3(9).

THIRD: In case the principal of the Securities and Guarantees of such series 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 Securities and Guarantees of such series 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 or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;

FOURTH: In case the principal of the Securities and Guarantees of such series 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 Securities and Guarantees of such series 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 or

 

   

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Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities and Guarantees of such series, then to the payment of such principal and interest or Yield to Maturity, without preference or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of interest or of any Security and Guarantee of such series over any other Security and Guarantee of such series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and

FIFTH: To the payment of the remainder, if any, to the Issuer or to such party as a court of competent jurisdiction shall direct.

SECTION 5.4   SUITS FOR ENFORCEMENT. 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 5.5   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 Issuer, the Guarantor and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Guarantor, the Trustee and the Securityholders shall continue as though no such proceedings had been taken.

SECTION 5.6   LIMITATIONS ON SUITS BY SECURITYHOLDERS. No Holder of any Security of any series or of any Coupon appertaining thereto 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 a Responsible Officer of the Trustee written notice of an Event of Default with respect to Securities of such series and of the continuance thereof, as hereinbefore provided, and (b) the Holders of not less than 25% in aggregate principal amount of the Securities of such affected series then Outstanding (treated as a single class) 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 reasonable security or indemnity satisfactory to it 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 5.9; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security or

 

   

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Coupon with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series or Coupons appertaining to such Securities shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture or any Security to affect, disturb or prejudice the rights of any other such taker or Holder of Securities or Coupons appertaining to such Securities, or to obtain or seek to obtain priority over or preference to any other such taker or Holder or to enforce any right under this Indenture or any Security, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series and Coupons appertaining to such Securities. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

SECTION 5.7   UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS. Notwithstanding any other provision in this Indenture and any provision of any Security, the right of any Holder of any Security or Coupon to receive payment of the principal of and interest on such Security or Coupon on or after the respective due dates expressed in such Security or Coupon or the applicable redemption dates provided for in such Security, 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 5.8   POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT. Except as provided in Section 5.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities, Guarantees or Coupons 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 Securities, Guarantees or Coupons to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein. Every power and remedy given by this Indenture, any Security, Guarantee or law to the Trustee or to the Holders of Securities, Guarantees or Coupons may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or, subject to Section 5.6, by the Holders of Securities, Guarantees or Coupons.

SECTION 5.9   CONTROL BY HOLDERS OF SECURITIES. The Holders of a majority in aggregate principal amount of the Securities of each series affected (with each such series voting as a separate class) 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 Securities of such series 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 6.1) 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 trust committee of directors or Responsible Officers of the Trustee shall determine in good faith that the action or

 

   

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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 Securities of all affected series not joining in the giving of said direction, it being understood that (subject to Section 6.1) 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 and which is not inconsistent with such direction or directions by Securityholders.

SECTION 5.10   WAIVER OF PAST DEFAULTS. Prior to the declaration of acceleration of the maturity of the Securities of any series as provided in Section 5.1, the Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding (voting as a single class) may on behalf of the Holders of all such Securities waive any past default or Event of Default described in Section 5.1 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 Security affected. In the case of any such waiver, the Issuer, the Trustee and the Holders of all such Securities shall be restored to their former positions and rights hereunder, respectively, and such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

SECTION 5.11   TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN CIRCUMSTANCES. The Trustee shall, within ninety days after the occurrence of a default with respect to the Securities of any series, give notice of all defaults with respect to that series known to the Trustee (i) if any Unregistered Securities of that series are then Outstanding, to the Holders thereof, by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized Newspaper in London (and, if required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg) and (ii) to all Holders of Securities of such series in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, unless in each case such defaults shall have been cured before the mailing or publication of such notice (the term “default” for the purpose of this Section being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided , that, except in the case of default in the payment of the principal of or interest on any of the Securities of such series, or in the payment of any sinking fund installment on such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders of such series.

SECTION 5.12   RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS. All parties to this Indenture agree, and each Holder of any Security or Coupon 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

 

   

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Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of any suit relating to or arising under clause (d) or (g) of Section 5.1 (if the suit relates to Securities of more than one but less than all series), 10% in aggregate principal amount of Securities then Outstanding and affected thereby, or in the case of any suit relating to or arising under clause (d) or (g) (if the suit under clause (d) or (g) relates to all the Securities then Outstanding), or (e) or (f) of Section 5.1, 10% in aggregate principal amount of all Securities then Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or interest on any Security on or after the due date expressed in such Security or any date fixed for redemption.

ARTICLE VI

CONCERNING THE TRUSTEE

SECTION 6.1   DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT; PRIOR TO DEFAULT. Prior to the occurrence of an Event of Default with respect to the Securities of a particular series and after the curing or waiving of all Events of Default which may have occurred with respect to such series, the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to such series of Securities. In case an Event of Default with respect to the Securities of a series has occurred and has not been cured or waived, the Trustee shall exercise with respect to such series of Securities such of the rights and powers vested in it by this Indenture with respect to such series of Securities, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that

(a) prior to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving of all such Events of Default with respect to such series which may have occurred:

(i) the duties and obligations of the Trustee with respect to the Securities of any series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements,

 

   

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certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such statements, certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same 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;

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

(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 5.9 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.

None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably assured to it.

The provisions of this Section 6.1 are in furtherance of and subject to Section 315 of the Trust Indenture Act.

SECTION 6.2   CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and subject to the Trust Indenture Act, and subject to

Section 6.1:

(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(b) any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Order (unless other evidence in respect thereof is specifically prescribed herein or in the terms established in respect of any series); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Guarantor;

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

(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order or direction of any of the Holders of any series of Securities or any related Guarantees pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred therein or thereby;

 

   

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

(f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless (i) requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities of all series affected then Outstanding (treated as one class) or (ii) otherwise provided in the terms of any series of Securities pursuant to Section 2.3; provided , that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable security or indemnity against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer upon demand;

(g) 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 not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder;

(h) 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 which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;

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

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

 

   

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SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein and in the Securities and Guarantees, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer or the Guarantor, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities, Guarantees or Coupons. The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities or of the proceeds thereof.

SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES, GUARANTEES OR COUPONS; COLLECTIONS, ETC. The Trustee or any agent of the Issuer or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities, Guarantees or Coupons with the same rights it would have if it were not the Trustee or such agent and may otherwise deal with the Issuer or the Guarantor and receive, collect, hold and retain collections from the Issuer or the Guarantor with the same rights it would have if it were not the Trustee or such agent.

SECTION 6.5   MONEYS HELD BY TRUSTEE. Subject to the provisions of Section 10.4 hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or the Trustee shall be under any liability for interest on any moneys received by it hereunder.

SECTION 6.6   COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM. The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as the Issuer and the Trustee shall agree in writing (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Issuer also covenants to indemnify each of the Trustee or any predecessor Trustee and their agents for, and to hold them harmless against, any and all loss, damage, claims, liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Issuer, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section, except to the extent that such loss, damage, claim, liability or expense is due to its own negligence or bad faith. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.1(e) or Section 5.1(f), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable bankruptcy, insolvency or other similar law. The obligations of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor trustee and to pay or reimburse the Trustee and each predecessor trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities or Coupons, and the Securities are hereby subordinated to such senior claim.

 

   

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SECTION 6.7   RIGHT OF TRUSTEE TO RELY ON OFFICER’S CERTIFICATE, ETC. Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.

SECTION 6.8   INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR THE TRUSTEE. The following indenture is hereby specifically described for the purposes of Section 310(b)(1) of the Trust Indenture Act: this Indenture with respect to series of Securities that are of an equal priority.

SECTION 6.9   QUALIFICATION OF TRUSTEE: CONFLICTING INTERESTS. The Trustee shall comply with Section 310(b) of the Trust Indenture Act.

SECTION 6.10   PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee for each series of Securities hereunder shall at all times be a corporation or banking association organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, having a combined capital and surplus of at least $50,000,000, and which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by Federal, state or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 6.11.

The provisions of this Section 6.10 are in furtherance of and subject to Section 310(a) of the Trust Indenture Act.

SECTION 6.11   RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer and (i) if any Unregistered Securities of a series affected are then Outstanding, by giving notice of such resignation to the Holders thereof, by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York, and at least once in an Authorized Newspaper in London (and, if required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities of a series

 

   

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affected are then Outstanding, by mailing notice of such resignation to the Holders thereof who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to the Trustee and (iii) by mailing notice of such resignation to the Holders of then Outstanding Registered Securities of each series affected at their addresses as they shall appear on the registry books. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee (at no expense to itself) may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 5.12, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.

(b) In case at any time any of the following shall occur:

(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act with respect to any series of Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or

(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 6.10 and Section 310(a) of the Trust Indenture Act and shall fail to resign after written request therefor by the Issuer or by any Securityholder; or

(iii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;

then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 315(e) of the Trust Indenture Act, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and so prescribe, remove the Trustee and appoint a successor trustee.

 

   

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(c) The Holders of a majority in aggregate principal amount of the Securities of each series at the time outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence provided for in Section 7.1 of the action in that regard taken by the Securityholders.

(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 6.11 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 6.12.

SECTION 6.12   ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any successor trustee appointed as provided in Section 6.11 shall execute and deliver to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4, pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 6.6.

If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and 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 trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts under separate indentures.

No successor trustee with respect to any series of Securities shall accept appointment as provided in this Section 6.12 unless at the time of such acceptance such successor trustee shall be qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions of Section 6.10.

 

   

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Upon acceptance of appointment by any successor trustee as provided in this Section 6.12, the Issuer shall give notice thereof (a) if any Unregistered Securities of a series affected are then Outstanding, to the Holders thereof, by publication of such notice at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized Newspaper in London (and, if required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered Securities of a series affected are then Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing such notice to such Holders at such addresses as were so furnished to the Trustee (and the Trustee shall make such information available to the Issuer for such purpose) and (c) to the Holders of Registered Securities of each series affected, by mailing such notice to such Holders at their addresses as they shall appear on the registry books. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 6.11. If the Issuer fails to give such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be given at the expense of the Issuer.

SECTION 6.13   MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF TRUSTEE. Any corporation or banking association into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or banking association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or banking association succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided, that such corporation or banking association shall be qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions of Section 6.10, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.

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

SECTION 6.14   PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER. The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated.

 

   

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SECTION 6.15   APPOINTMENT OF AUTHENTICATING AGENT. As long as any Securities of a series remain Outstanding, the

Trustee may, by an instrument in writing, appoint with the approval of the Issuer an authenticating agent (the “Authenticating Agent”) which shall be authorized to act on behalf of the Trustee to authenticate Securities, including Securities issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.9. Securities of each such series authenticated by such Authenticating Agent shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference is made in this Indenture to the authentication and delivery of Securities of any series by the Trustee or to the Trustee’s Certificate of Authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent for such series and a Certificate of Authentication executed on behalf of the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $45,000,000 (determined as provided in Section 6.10 with respect to the Trustee) and subject to supervision or examination by Federal or state authority.

Any corporation into which any Authenticating Agent may be merged or converted, or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with respect to all series of Securities for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent. Any Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice of resignation to the Trustee and to the Issuer.

Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.15 with respect to one or more series of Securities, the Trustee shall upon receipt of an Issuer Order appoint a successor Authenticating Agent, and the Issuer shall provide notice of such appointment to all Holders of Securities of such series in the manner and to the extent provided in Section 11.4. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Issuer agrees to pay to the Authenticating Agent for such series from time to time reasonable compensation. The Authenticating Agent for the Securities of any series shall have no responsibility or liability for any action taken by it as such at the direction of the Trustee.

Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any Authenticating Agent.

ARTICLE VII

CONCERNING THE SECURITYHOLDERS

SECTION 7.1   EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of

 

   

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Securityholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.

SECTION 7.2   PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES. Subject to Sections 6.1 and 6.2, the execution of any instrument by a Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Registered Securities shall be proved by the Security register or by a certificate of the registrar thereof.

SECTION 7.3   HOLDERS TO BE TREATED AS OWNERS. The Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and neither the Issuer, the Guarantor, the Trustee nor any agent of the Issuer, the Guarantor or the Trustee shall be affected by any notice to the contrary. The Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the Holder of any Unregistered Security and the Holder of any Coupon as the absolute owner of such Unregistered Security or Coupon (whether or not such Unregistered Security or Coupon shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes, and neither the Issuer, the Guarantor, the Trustee, nor any agent of the Issuer, the Guarantor, or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Unregistered Security or Coupon.

SECTION 7.4   SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any request, demand, authorization, direction, notice, consent, waiver or other action by Securityholders under this Indenture, Securities which are owned by the Issuer or any other obligor on the Securities with respect to which such determination is being made or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such action only Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities. In case of a dispute as to such

 

   

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right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.

SECTION 7.5   RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 7.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.

ARTICLE VIII

SUPPLEMENTAL INDENTURES

SECTION 8.1   SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS. The Issuer, when authorized by or pursuant to 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 Issuer Order), the Guarantor and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:

(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of one or more series any property or assets;

(b) to evidence the succession of another Person to the Issuer or the Guarantor, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Issuer pursuant to Article IX;

(c) to add to the covenants of the Issuer or the Guarantor such further covenants, restrictions, conditions or provisions as the Issuer, the Guarantor and the Trustee shall consider to be for the protection of the Holders of Securities or Coupons, 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

 

   

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the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, 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 Securities of such series 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 which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make any other provisions as the Issuer may deem necessary or desirable, provided, that no such action shall adversely affect the interests of the Holders of the Securities, Guarantees or Coupons;

(e) to establish the forms or terms of Securities of any series or of the Coupons or Guarantees appertaining to such Securities as permitted by Sections 2.1 and 2.3;

(f) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 6.12; and

(g) to change or eliminate any of the provisions of this Indenture, or to add any new provision to this Indenture, in respect of one or more series of Securities; provided, however, that any such change, elimination or addition shall not apply to any Security Outstanding on the date of such indenture supplemental hereto.

The Trustee is hereby authorized to join with the Issuer 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 Securities at the time outstanding, notwithstanding any of the provisions of Section 8.2.

SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.

(A) Except as set forth in paragraph (C) below, with the consent (evidenced as provided in Article VII) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series of Senior Securities affected by such supplemental indenture (voting as one class), the Issuer, when authorized by or

 

   

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pursuant to 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 Issuer Order), 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 Trust Indenture Act as in force and effect 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 Securities of each such series or of the Guarantees and the Coupons appertaining to such Securities.

(B) Except as set forth in paragraph (C) below, with the consent (evidenced as provided in Article VII) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series of Subordinated Securities affected by such supplemental indenture (voting as one class), the Issuer, when authorized by or pursuant to 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 Issuer Order), 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 Trust Indenture Act as in force and effect 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 Securities of each such series or of the Guarantees and the Coupons appertaining to such Securities.

(C) No such supplemental indenture shall (i) extend the final maturity of any Security, or reduce the principal amount thereof, or premium thereon, if any, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or make the principal thereof (including any amount in respect of original issue discount), or premium thereon, if any, or interest thereon payable in any coin or currency other than that provided in the Securities and Coupons or in accordance with the terms thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 5.1 or the amount thereof provable in bankruptcy pursuant to Section 5.2, or in the case of Subordinated Securities of any series, modify any of the Subordination Provisions or the definition of “Senior Indebtedness” relating to such series in a manner adverse to the holders of such Subordinated Securities, or alter the provisions of Section 11.11 or 11.12 or impair or affect the right of any Securityholder to institute suit for the payment thereof when due or, if the Securities provide therefor, any right of repayment at the option of the Securityholder, in each case without the consent of the Holder of each Security so affected, or (ii) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected.

(D) A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of Holders of Securities or Guarantees of such series, or of Coupons appertaining to such Securities, with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities or Guarantees of any other series or of the Coupons appertaining to such Securities.

 

   

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Upon the request of the Issuer, 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 Issuer Order) certified by the secretary or an assistant secretary of the Guarantor 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 Securities as aforesaid and other documents, if any, required by Section 7.1, the Trustee shall join with the Issuer 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 in its discretion, but shall not be obligated to, enter into such supplemental indenture.

It shall not be necessary for the consent of the Securityholders under this Section 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 Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give notice thereof (i) to the Holders of then Outstanding Registered Securities of each series affected thereby, by mailing a notice thereof by first-class mail to such Holders at their addresses as they shall appear on the Security register, (ii) if any Unregistered Securities of a series affected thereby are then Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing a notice thereof by first-class mail to such Holders at such addresses as were so furnished to the Trustee and (iii) if any Unregistered Securities of a series affected thereby are then Outstanding, to all Holders thereof, by publication of a notice thereof at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized Newspaper in London (and, if required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg), and in each case such notice shall set forth in general terms the substance of such supplemental indenture. Any failure of the Issuer 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 8.3   EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and 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 Issuer and the Holders of Securities of each series 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 be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

SECTION 8.4   DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article 8 complies with the applicable provisions of this Indenture.

 

   

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SECTION 8.5   NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken by Securityholders. If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.

ARTICLE IX

CONSOLIDATION, MERGER, SALE OR CONVEYANCE

SECTION 9.1   ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. The Issuer shall not consolidate with or merge into any other Person or transfer or lease its properties and assets substantially as an entirety to any Person, and the Issuer shall not permit any other Person to consolidate with or merge into the Issuer, unless:

(a) either the Issuer shall be the continuing Person, or the successor Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or to which the properties and assets of the Issuer substantially as an entirety are transferred or leased shall be a corporation, partnership, limited liability company or other entity organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Issuer under the Securities and this Indenture; and

(b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Issuer or a Subsidiary as a result of such transaction as having been incurred by the Issuer or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing.

SECTION 9.2   SUCCESSOR SUBSTITUTED. The successor formed by such consolidation or into which the Issuer is merged or to which such transfer or lease is made shall succeed to and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such successor had been named as the Issuer herein, and thereafter (except in the case of a lease to another Person) the predecessor shall be relieved of all obligations and covenants under the Indenture and the Securities and, in the event of such conveyance or transfer, any such predecessor may be dissolved and liquidated.

SECTION 9.3   OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE. The Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale or conveyance, and any such assumption, complies with the provisions of this Article IX.

 

   

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ARTICLE X

SATISFACTION AND DISCHARGE OF INDENTURE;

UNCLAIMED MONEYS

SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE.

(A) If at any time (i) the Issuer shall have paid or caused to be paid the principal of and interest on all the Securities of any series Outstanding hereunder and all unmatured Coupons appertaining thereto (other than Securities of such series and Coupons appertaining thereto which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.9) as and when the same shall have become due and payable, or (ii) the Issuer shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated and all unmatured Coupons appertaining thereto (other than any Securities of such series and Coupons appertaining thereto which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.9) or (iii) in the case of any series of Securities where the exact amount (including the currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred to in clause (b) below, (a) all the Securities of such series and all unmatured Coupons appertaining thereto not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (b) the Issuer shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust the entire amount in (i) cash (other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 10.4), (ii) in the case of any series of Securities the payments on which may only be made in Dollars, direct obligations of the United States of America, backed by its full faith and credit (“U.S. Government Obligations”), maturing as to principal and interest at such times and in such amounts as will insure the availability of cash sufficient to pay at such maturity or upon such redemption, as the case may be, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (a) the principal and interest on all Securities of such series and Coupons appertaining thereto on each date that such principal or interest is due and payable and (b) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series; (x) the principal and interest on all Securities of such series and Coupons appertaining thereto on each date that such principal or interest is due and payable and (y) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series; and if, in any such case, the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer, then this Indenture shall cease to be of further effect (except as to (i) rights of registration of transfer and exchange of Securities of such Series and of Coupons appertaining thereto pursuant to Section 2.8 and the Issuer’s right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of holders of Securities and Coupons appertaining thereto to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (iv) any optional redemption rights of such series of Securities to the extent to be exercised to make such call for redemption within one

 

   

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year, (v) the rights, obligations, duties and immunities of the Trustee hereunder, including those under Section 6.6, (vi) the rights of the Holders of Securities of such series and Coupons appertaining thereto as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them, and (vii) the obligations of the Issuer under Section 3.2) and the Trustee, on demand of the Issuer accompanied by an Officer’s Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture; provided, that the rights of Holders of the Securities and Coupons to receive amounts in respect of principal of and interest on the Securities and Coupons held by them shall not be delayed longer than required by then-applicable mandatory rules or policies of any securities exchange upon which the Securities are listed. The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series.

(B) The following provisions shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution, Officer’s Certificate or indenture supplemental hereto provided pursuant to Section 2.3. In addition to discharge of the Indenture pursuant to the next preceding paragraph, in the case of any series of Securities the exact amounts (including the currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred to in clause (a) below, the Issuer shall be deemed to have paid and discharged the entire indebtedness on all the Securities of such a series and the Coupons appertaining thereto on the date of the deposit referred to in subparagraph (a) below, and the provisions of this Indenture with respect to the Securities of such series and Coupons appertaining thereto shall no longer be in effect (except as to (i) rights of registration of transfer and exchange of Securities of such series and of Coupons appertaining thereto pursuant to Section 2.8 and the Issuer’s right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons appertaining thereto to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (iv) any optional redemption rights of such series of Securities to the extent to be exercised to make such call for redemption within one year, (v) the rights, obligations, duties and immunities of the Trustee hereunder, (vi) the rights of the Holders of Securities of such series and Coupons appertaining thereto as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (vii) the obligations of the Issuer under Section 3.2) and the Trustee, at the expense of the Issuer, shall at the Issuer’s request, execute proper instruments acknowledging the same, if

(a) with reference to this provision the Issuer has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series and Coupons appertaining thereto (i) cash in an amount, or (ii) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay

 

   

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(A) the principal and interest on all Securities of such series and Coupons appertaining thereto on each date that such principal or interest is due and payable and (b) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series;

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

(c) the Issuer has delivered to the Trustee an Opinion of Counsel based on the fact that (x) the Issuer has received from, or there has been published by, the IRS a ruling or (y) since the date hereof, there has been a change in the applicable United States Federal income tax law, in either case to the effect that, and such opinion shall confirm that, the Holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for United States Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States Federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred; and

(d) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this provision have been complied with.

(C) The Issuer shall be released from its obligations under Sections 3.6 and 9.1 and unless otherwise provided for in the Board Resolution, Officer’s Certificate or Indenture supplemental hereto establishing such series of Securities, from all covenants and other obligations referred to in Section 2.3(19) or 2.3(21) with respect to such series of Securities, and any Coupons appertaining thereto, outstanding on and after the date the conditions set forth below are satisfied (hereinafter, “covenant defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of any series, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in such Section, whether directly or indirectly by reason of any reference elsewhere herein to such Section or by reason of any reference in such Section to any other provision herein or in any other document and such omission to comply shall not constitute an Event of Default under Section 5.1, but the remainder of this Indenture and such Securities and Coupons shall be unaffected thereby. The following shall be the conditions to application of this subsection C of this Section 10.1:

(a) The Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of such series and coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (A) the principal and interest on all Securities of such series and Coupons appertaining thereof and (B) any mandatory sinking fund payments on the day on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series;

 

   

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(b) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit;

(c) Such covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in Section 6.9 and for purposes of the Trust Indenture Act with respect to any securities of the Issuer;

(d) Such covenant defeasance shall not result in a breach or violation of, or constitute a default under any agreement or instrument to which the Issuer is a party or by which it is bound;

(e) Such covenant defeasance shall not cause any Securities then listed on any registered national securities exchange under the Exchange Act to be delisted;

(f) The Issuer shall have delivered to the Trustee an Officer’s Certificate and Opinion of Counsel to the effect that the Holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for United States Federal income tax purposes as a result of such covenant 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 covenant defeasance had not occurred; and

(g) The Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the covenant defeasance contemplated by this provision have been complied with.

SECTION 10.2   APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES. Subject to Section 10.4, all moneys deposited with the Trustee (or other trustee) pursuant to Section 10.1 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series and of Coupons appertaining thereto for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law.

SECTION 10.3   REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.

 

   

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SECTION 10.4   RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO YEARS. Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of or interest on any Security of any series and of any Coupons attached thereto and not applied but remaining unclaimed for two years after the date upon which such principal or interest shall have become due and payable, shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the Securities of such series and of any Coupons appertaining thereto shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer and the Guarantor for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease; provided , that the Trustee or such paying agent, before being required to make any such repayment with respect to moneys deposited with it for any payment (a) in respect of Registered Securities of any series, shall at the expense of the Issuer, mail by first-class mail to Holders of such Securities at their addresses as they shall appear on the Security register, and (b) in respect of Unregistered Securities of any series, shall at the expense of the Issuer cause to the published once, in an Authorized Newspaper in the Borough of Manhattan, The City of New York and once in an Authorized Newspaper in London (and, if required by Section 3.7, once in an Authorized Newspaper in Luxembourg), notice, that such moneys remain and that, after a date specified therein, which shall not be less than thirty days from the date of such mailing or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.

SECTION 10.5   INDEMNITY FOR U.S. GOVERNMENT OF OBLIGATIONS. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 10.1 or the principal or interest received in respect of such obligations.

SECTION 10.6   EFFECT ON SUBORDINATION PROVISIONS. Unless otherwise expressly established pursuant to Section 2.3 with respect to the Subordinated Securities of any series, the provisions of Section 11.13 hereof, insofar as they pertain to the Subordinated Securities of such series, and the Subordination Provisions established pursuant to Section 2.3(9) with respect to such series, are hereby expressly made subject to the provisions for satisfaction and discharge and defeasance and covenant defeasance set forth in Section 10.1 hereof and, anything herein to the contrary notwithstanding, upon the effectiveness of such satisfaction and discharge and defeasance and covenant defeasance pursuant to Section 10.1 with respect to the Securities of such series, such Securities shall thereupon cease to be so subordinated and shall no longer be subject to the provisions of Section 11.13 or the Subordination Provisions established pursuant to Section 2.3(9) with respect to such series and, without limitation to the foregoing, all moneys, U.S. Government Obligations and other securities or property deposited with the Trustee (or other qualifying trustee) in trust in connection with such satisfaction and discharge, defeasance or covenant defeasance, as the case may be, and all proceeds therefrom may be applied to pay the principal of, premium, if any, and interest, if any, on, and mandatory sinking fund payments, if any, with respect to the Securities of such series as and when the same shall become due and payable notwithstanding the provisions of Section 11.13 or such Subordination Provisions.

 

   

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ARTICLE XI

MISCELLANEOUS PROVISIONS

SECTION 11.1   INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF GENERAL PARTNER OR ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, officer or director, as such, of the Guarantor, the General Partner or Issuer or of any successor, either directly or through the Guarantor, the General Partner or Issuer or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities, Guarantees and the Coupons, if any, appertaining thereto by the Holders thereof and as part of the consideration for the issue of the Securities, Guarantees and the Coupons appertaining thereto.

SECTION 11.2   PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS OF SECURITIES AND COUPONS. Nothing in this Indenture, in the Securities, Guarantees or in the Coupons appertaining thereto, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities, Guarantees or Coupons, if any and, in the case of the Subordinated Securities of any series, the holders of Senior Indebtedness with respect to such series, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities, Guarantees or Coupons, if any and, in the case of the Subordinated Securities of any series, the holders of Senior Indebtedness with respect to such series.

SECTION 11.3   SUCCESSORS AND ASSIGNS OF ISSUER AND GUARANTOR BOUND BY INDENTURE. All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer and the Guarantor shall bind their respective successors and assigns, whether so expressed or not.

SECTION 11.4   NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF SECURITIES AND COUPONS. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities or Coupons, if any, to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to Plum Creek Timber Company, Inc., 999 Third Avenue, Suite 4300, Seattle, Washington 98104-4096, Attention: Secretary. Any notice, direction, request or demand by the Issuer or any Holder of Securities or Coupons, if any, to or upon the Trustee shall be deemed to have been sufficiently given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Trustee is filed by the Trustee with the Issuer) to 1420 Fifth Avenue, 7th Floor, Seattle, WA 98101, Attention: Thomas Zrust, Vice President and shall be deemed effective upon receipt by the Trustee.

 

   

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Where this Indenture provides for notice to Holders of Registered Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class mail, postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security register. In any case where notice to such Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

Where this Indenture provides for notice to holders of Unregistered Securities, such notice shall be sufficiently given (unless otherwise expressly provided herein) by giving notice to such Holders (a) by publication of such notice at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York, and at least once in an Authorized Newspaper in London (and, if required by Section 3.7, once in an Authorized Newspaper in Luxembourg), and (b) by mailing such notice to the Holders of Unregistered Securities who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to the Trustee.

In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer when such notice is required to the given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be reasonably satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.

SECTION 11.5 OFFICER’S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.

Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture 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 has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.

 

   

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

Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel, as the case may be, knows that the certificate or opinion of or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.

Any certificate or opinion of any independent firm of public accountants filed with and directed to the Trustee shall contain a statement that such firm is independent.

SECTION 11.6   PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the date of maturity of interest on or principal of the Securities of any series or any Coupons appertaining thereto or the date fixed for redemption or repayment of any such Security or Coupon shall not be a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.

SECTION 11.7   CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with duties imposed by, or with another provision (an “incorporated provision”) included in this Indenture by operation of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or incorporated provision shall control.

SECTION 11.8 NEW YORK LAW TO GOVERN. THIS INDENTURE AND EACH SECURITY AND COUPON 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 INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

SECTION 11.9   COUNTERPARTS. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.

 

   

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SECTION 11.10   EFFECT OF HEADINGS. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

SECTION 11.11   SECURITIES IN A FOREIGN CURRENCY. Unless otherwise specified in an Officer’s Certificate delivered pursuant to Section 2.3 of this Indenture with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all series or all series affected by a particular action at the time Outstanding and, at such time, there are Outstanding Securities of any series which are denominated in a Foreign Currency, then the principal amount of Securities of such series which shall be deemed to be Outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar buying rate in The City of New York for cable transfers of such currency or currencies as published by the Federal Reserve Bank of New York as of the most recent available date. If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York or quotations from one or more major banks in The City of New York or in the country of issue of the currency in question, which for purposes of the euro shall be any member state of the European Union that has adopted the euro, as the Trustee shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a series denominated in a currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.

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

SECTION 11.12   JUDGMENT CURRENCY. The Issuer agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required

 

   

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Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close.

SECTION 11.13   AGREEMENT TO SUBORDINATE. The Issuer, for itself, its successors and assigns, covenants and agrees, and each Holder of Subordinated Securities of any series by his acceptance thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on, and mandatory sinking fund payments, if any, in respect of each and all of the Subordinated Securities of such series shall be expressly subordinated, to the extent and in the manner provided in the Subordination Provisions established with respect to the Subordinated Securities of such series pursuant to Section 2.3(9) hereof, in right of payment to the prior payment in full of all Senior Indebtedness with respect to such series.

ARTICLE XII

REDEMPTION OF SECURITIES AND SINKING FUNDS

SECTION 12.1   APPLICABILITY OF ARTICLE. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.3 for Securities of such series.

SECTION 12.2   NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of redemption to the Holders of Registered Securities of any series to be redeemed as a whole or in part at the option of the Issuer 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 Securities of such series at their last addresses as they shall appear upon the registry books. Notice of redemption to the Holders of Unregistered Securities to be redeemed as a whole or in part, who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act shall be given by mailing notice of such redemption, by first class mail, postage prepaid, at least 30 days and not more than 60 prior to the date fixed for redemption, to such Holders at such addresses as were so furnished to the Trustee (and, in the case of any such notice given by the Issuer, the Trustee shall make such information available to the Issuer for such purpose). Notice of redemption to all other Holders of Unregistered Securities shall be published in an Authorized Newspaper in the Borough of Manhattan, The City of New York and in an Authorized Newspaper in London (and, if required by Section 3.7, in an Authorized Newspaper in Luxembourg), in each case, once in each of three successive calendar weeks, the first publication to be not less than 30 nor more than 60 days prior to the date fixed for redemption. 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 Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of such Security of such series.

 

   

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The notice of redemption to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities and, in the case of Securities with Coupons attached thereto, of all Coupons appertaining thereto maturing after the date fixed for redemption, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only, the notice of redemption to Holders of Securities of the series 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 Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.

The notice of redemption of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at the expense of the Issuer.

On or before the redemption date specified in the notice of redemption given as provided in this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.4) 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 to the date fixed for redemption. The Issuer will deliver to the Trustee at least 70 days prior to the date fixed for redemption, or such shorter period as shall be acceptable to the Trustee, an Officer’s Certificate stating the aggregate principal amount of Securities to be redeemed. In case of a redemption at the election of the Issuer prior to the expiration of any restriction on such redemption, the Issuer shall deliver to the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officer’s Certificate stating that such restriction has been complied with.

If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deemed appropriate and fair, in its sole discretion, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series 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 Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.

SECTION 12.3   PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date)

 

   

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interest on the Securities or portions of Securities so called for redemption shall cease to accrue, and the unmatured Coupons, if any, appertaining thereto shall be void, and, except as provided in Sections 6.5 and 10.4, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, together with all Coupons, if any, appertaining thereto maturing after the date fixed for redemption, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided, that payment of interest becoming due on or prior to the date fixed for redemption shall be payable in the case of Securities with Coupons attached thereto, to the Holders of the Coupons for such interest upon surrender thereof, and in the case of Registered Securities, to the Holder of such Registered Securities registered as such on the relevant record date, subject to the terms and provisions of Section 2.3 and 2.7 hereof.

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.

If any Security with Coupons attached thereto is surrendered for redemption and is not accompanied by all appurtenant Coupons maturing after the date fixed for redemption, the surrender of such missing Coupon or Coupons may be waived by the Issuer and the Trustee, if there be furnished to each of them such security or indemnity as they may require to save each of them harmless.

Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented.

SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION FOR REDEMPTION.

Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in an Officer’s Certificate delivered to the Trustee at least 40 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 Issuer or (b) an entity specifically identified in such written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer.

SECTION 12.5   MANDATORY AND OPTIONAL SINKING FUNDS. The minimum amount of any sinking fund payment provided for by the terms of the Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of the Securities of any series is herein referred to as an “optional sinking fund payment.” The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment date.”

 

   

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In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of such series. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities.

On or before the 60th day next preceding each sinking fund payment date for any series, the Issuer will deliver to the Trustee an Officer’s Certificate (which need not contain the statements required by Section 11.5) (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series and the basis for such credit, (b) stating that none of the Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with such Officer’s Certificate (or reasonably promptly thereafter if acceptable to the Trustee). Such Officer’s Certificate shall be irrevocable and upon its receipt by the Trustee, the Issuer shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Issuer, on or before any such 60th day, to deliver such Officer’s Certificate and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as provided in this Section.

If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency) or a lesser sum in Dollars (or the equivalent thereof in any Foreign Currency) if the Issuer shall so request with respect to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If such amount shall be $50,000 (or the equivalent thereof in any Foreign Currency) or less and the Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency) is available. The Trustee shall select, in the manner provided in Section 12.2, for redemption on such sinking fund

 

   

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payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of such series (or portions thereof) so selected. Securities shall be excluded from eligibility for redemption under this Section if they are identified by registration and certificate number in an Officer’s Certificate delivered to the Trustee at least 60 days prior to the sinking fund payment date as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Issuer or (b) an entity specifically identified in such Officer’s Certificate as directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section 12.2 (and with the effect provided in Section 12.3) for the redemption of Securities of such series in part at the option of the Issuer. The amount of any sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for such series and, together with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity.

On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.

The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or give any notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default except that, where the giving of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default be deemed to have been collected under Article Five and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 5.10 or the default cured on or before the sixtieth day preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.

ARTICLE XIII

THE GUARANTEES

SECTION 13.1   GUARANTEES. The provisions of this Article XIII shall be applicable to the Securities, Coupons and Guarantees. The Guarantor (which term includes any successor Person under this Indenture) for consideration received hereby unconditionally and irrevocably guarantees on a senior basis (each a “Guarantee”, and collectively, the “Guarantees”)

 

   

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to the Holders from time to time of the Securities (a) the full and prompt payment of the principal of and any premium, if any, on any Security when and as the same shall become due, whether at the maturity thereof, by acceleration, redemption or otherwise and (b) the full and prompt payment of any interest on any Security when and as the same shall become due and payable. Each and every default in the payment of the principal of or interest or any premium on any Security shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. The obligations of the Guarantor hereunder shall be evidenced by Guarantees accompanying the Securities issued hereunder.

An Event of Default under this Indenture or the Security shall constitute an event of default under the Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantor hereunder in the same manner and to the same extent as the obligations of the Issuer.

The obligations of the Guarantor hereunder shall be as principal and not merely as surety, shall be absolute and unconditional and shall remain in full force and effect until the entire principal and interest and any premium on the Securities shall have been paid or provided for in accordance with provisions of this Indenture, and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to, or the consent of, the Guarantor:

(a) the failure to give notice to the Guarantor of the occurrence of an Event of Default;

(b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Issuer or the Guarantor of any or all of the obligations, covenants or agreements of either of them contained in this Indenture or the Securities;

(c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any Security or for any other payment under this Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of this Indenture or the Securities;

(d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in this Indenture or the Securities;

(e) the taking or the omission of any of the actions referred to in this Indenture and in any of the actions under the Securities;

(f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in this Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the Securities;

(g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantor or the Issuer or any of the assets of any of them, or any allegation or contest of the validity of the Guarantee in any such proceeding;

 

   

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(h) to the extent permitted by law, the release or discharge by operation of law of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Indenture;

(i) to the extent permitted by law, the release or discharge by operation of law of the Issuer from the performance or observance of any obligation, covenant or agreement contained in this Indenture;

(j) the default or failure of the Issuer or the Trustee fully to perform any of its obligations set forth in this Indenture or the Securities;

(k) the invalidity, irregularity or unenforceability of this Indenture or the Securities or any part of any thereof;

(l) any judicial or governmental action affecting the Issuer or any Securities or consent or indulgence granted by the Issuer by the Holders or by the Trustee; or

(m) the recovery of any judgment against the Issuer or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor.

The Guarantees shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time any payment in respect of the Securities is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment had not been made. In the event that any payment, or any part there, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by laws, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

The Guarantor shall be subrogated to all rights of the Holder of any Security against the Issuer in respect of any amounts paid to the Trustee or such Holder by the Guarantor pursuant to the provisions of its Guarantee; provided, however, that the Guarantor shall be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, and premium, if any, and interest on, and any other amounts payable with respect to, all Securities shall have been paid in full and all other obligations contained in the Securities and this Indenture shall have been performed. If any amount shall be paid to the Guarantor in violation of the preceding sentence and all amounts payable in respect of the Securities shall not have been paid in full, such amount shall be deemed to have been paid to the Guarantor for the benefit of, and held in trust for the benefit of, the Holders, and shall forthwith be paid to the Trustee for the benefit of the Holders to be credited and applied upon such amounts. The Guarantor acknowledges that it will receive direct and indirect benefits from the issuance of the Securities pursuant to this Indenture.

 

   

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The Guarantor shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee. The Guarantee set forth in this Section 13.1 shall not be valid and obligatory for any purpose with respect to a Security until the certificate of authentication of such Security shall have been signed by or on behalf of the Trustee. The Guarantee is a guarantee of payment and not of collection.

If an officer of the Guarantor whose signature is on this Indenture or a Security no longer holds that office at the time the Trustee authenticates such Security or at any time thereafter, the Guarantor’s Guarantee of such Security shall be valid nevertheless.

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

SECTION 13.2   PROCEEDINGS AGAINST THE GUARANTOR. In the event of a default in the payment of principal of or any premium on any Security when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, call for redemption or otherwise, or in the event of a default in the payment of any interest on any Security when and as the same shall become due, the Trustee shall have the right to proceed first and directly against the Guarantor under this Indenture without first proceeding against the Issuer or exhausting any other remedies which it may have and without resorting to any other Security held by the Trustee.

The Trustee shall have the right, power and authority to do all things it deems necessary or otherwise advisable to enforce the provisions of this Indenture relating to the Guarantees and protect the interests of the Holders of the Securities and, in the event of a default in payment of the principal of or any premium on any Security when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, call for redemption or otherwise, or in the event of a default in the payment of any interest on any Security when and as the same shall become due, the Trustee may institute or appear in such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of its rights and the rights of the Holders, whether for the specific enforcement of any covenant or agreement in this Indenture relating to the Guarantee or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. Without limiting the generality of the foregoing, in the event of a default in payment of the principal of or interest or any premium on any Security when due, the Trustee may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Guarantor and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Guarantor, wherever situated.

SECTION 13.3   GUARANTEES FOR BENEFIT OF HOLDERS OF SECURITIES. The Guarantees contained in this Indenture are entered into by the Guarantor for the benefit of the Holders from time to time of the Securities. Such provisions shall not be deemed to create any right in, or to be in whole or in part for the benefit of, any person other than the Trustee, the Guarantor, the Holders from time to time of the Securities, and their permitted successors and assigns.

 

   

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SECTION 13.4   ADDITIONAL GUARANTORS. Any Person may become a Guarantor by executing and delivering to the Trustee (a) a supplemental indenture in form and substance satisfactory to the Trustee, which subjects such person to the provisions of this Indenture as a Guarantor, and (b) an Opinion of Counsel to the effect that such supplemental indenture has been duly authorized and executed by such person and constitutes the legal, valid, binding and enforceable obligation of such person (subject to such customary exceptions concerning fraudulent conveyance laws, creditors’ rights and equitable principles as may be acceptable to the Trustee in its discretion).

 

   

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

 

PLUM CREEK TIMBERLANDS, L.P.
By:   PLUM CREEK TIMBER I, L.L.C.
  its General Partner
  By:     PLUM CREEK TIMBER COMPANY, INC.
    its Sole Member
    By:       /s/William R. Brown
      Name:   William R. Brown
      Title:   Executive Vice President and
        Chief Financial Officer

 

Attest:   
By:          

 

  

 

 

PLUM CREEK TIMBER COMPANY, INC.
By:       /s/ William R. Brown
  Name:       William R. Brown
        Title:   Executive Vice President and
        Chief Financial Officer

 

Attest:   
By:          

 

  

 

 

US BANK NATIONAL ASSOCIATION
By:       /s/ Thomas Zrust
  Name:       Thomas Zrust
  Title       Vice President

 

          

Exhibit 4.3

OFFICER’S CERTIFICATE

The undersigned, David Lambert, Senior Vice President and Chief Financial Officer of Plum Creek Timber Company, Inc. (the

“Company”), a Delaware corporation, hereby certifies, on behalf of the Company in its capacity as sole member of Plum Creek Timber I, L.L.C., a Delaware limited liability company, in its capacity as general partner of Plum Creek Timberlands, L.P. (the “Partnership”), a Delaware limited partnership, pursuant to Sections 2.1, 2.3 and 11.5 of the Indenture, dated as of November 14, 2005 (the “Indenture”), by and among the Partnership, as issuer, the Company, as guarantor, and U.S. Bank National Association, a national banking association, as trustee, as follows:

 

1. The undersigned has read Sections 2.1 and 2.3 of the Indenture and such other sections of the Indenture and other documents and has made such other inquiries as he has deemed necessary to make the certifications set forth herein.

 

2. In the opinion of the undersigned, the covenants and conditions precedent provided for in the Indenture and as set forth in Annex A attached hereto relating to the issuance of the Partnership’s 4.70% Notes due 2021 (the “Notes”) have been complied with.

 

3. The forms of the Notes and the guarantees of the Notes by the Company, and the terms of the Notes, as set forth on Annex A attached hereto, have been duly established pursuant to Sections 2.1 and 2.3 of the Indenture and comply with the Indenture.

[SIGNATURE ON FOLLOWING PAGE]


IN WITNESS WHEREOF, the undersigned has caused this certificate to be duly executed as of this 15 th day of November, 2010.

 

        PLUM CREEK TIMBERLANDS, L.P.
By:         PLUM CREEK TIMBER I, L.L.C.
        its General Partner
  By:       PLUM CREEK TIMBER COMPANY, INC.
        its Sole Member
    By:    

/s/ David Lambert

      Name:   David Lambert
        Title:   Senior Vice President and
        Chief Financial Officer


ANNEX A

Pursuant to Sections 2.1 and 2.3 of the Indenture, dated as of November 14, 2005 (the “Indenture”), among Plum Creek Timberlands, L.P. (the “Issuer”), Plum Creek Timber Company, Inc. (the “Guarantor”) and U.S. Bank National Association, as trustee (the “Trustee”), the terms of a series of Securities to be issued pursuant to the Indenture are as follows:

 

  1. Designation . The designation of the Securities is the “4.70% Notes due 2021” (herein referred to as the “Notes”).

 

  2. Initial Aggregate Principal Amount . The Notes shall be limited in initial aggregate principal amount to $575,000,000 (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3 of the Indenture and Section 7(f) hereof).

 

  3. Maturity . The date on which the principal of the Notes is payable is March 15, 2021 (the “Stated Maturity Date”).

 

  4. Rate of Interest; Interest Payment Date; Regular Record Dates . Each Note shall bear interest at the rate of 4.70% per year, until the principal thereof is paid. Such interest shall be payable semi-annually in arrears on March 15 and September 15 of each year (each, an “Interest Payment Date”), commencing on March 15, 2011, to the Persons in whose names the Notes are registered at the close of business on the immediately preceding March 1 or September 1 (each, a “record date”), as the case may be. Interest on the Notes shall accrue from and including the immediately preceding Interest Payment Date in respect of which interest has been paid or duly made available for payment (or from and including the date of issue, if no interest has been paid or duly made available for payment with respect to the Notes) to, but excluding the applicable Interest Payment Date, the Stated Maturity Date or date of earlier redemption or repurchase (the Stated Maturity Date or date of earlier redemption or repurchase referred to collectively herein as the “Maturity Date”), as the case may be. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the required payment of principal, premium, if any, and/or interest payable on such date will be made on the next succeeding Business Day as if made on the date such payment was due, and no interest will accrue on such payment for the period from and after such Interest Payment Date or the Maturity Date, as the case may be, to the date of such payment on the next succeeding Business Day.

 

  5. Place of Payment . Payments of principal, premium, if any, and interest on the Notes shall be payable, at the office of the Issuer’s paying agent maintained in the Borough of Manhattan, The City of New York. Payment of principal of, or premium, if any, on a definitive Note may be made only against surrender of the Note to the Issuer’s paying agent. The Issuer may, however, make payments of interest by mailing checks to the address of the holder of the Notes appearing in the security register maintained by the registrar. However, while any Notes are represented by a Registered Global Security, payment of principal of, premium,

 

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  if any, or interest on the Notes may be made by wire transfer to the account of the Depositary or its nominee.

 

  6. Optional Redemption.

 

  (a) The Issuer may redeem the Notes at any time in whole or from time to time in part at a redemption price equal to the sum of 100% of the aggregate principal amount of the Notes being redeemed, accrued but unpaid interest on those Notes to, but not including, the redemption date, and, unless the Notes are redeemed on or after December 15, 2020, the Make-Whole Amount (as defined below), if any. The Issuer will, however, pay the interest installment due on any Interest Payment Date that occurs on or before a redemption date to the registered holders of the Notes as of the close of business on the record date immediately preceding that Interest Payment Date. If the Issuer has given notice as provided in the Indenture and made funds available for the redemption of any Notes called for redemption on the redemption date referred to in that notice, those Notes will cease to bear interest on that redemption date and the only right of the holders of those Notes will be to receive payment of the redemption price. Notice of redemption and partial redemption shall be as provided in the Indenture; provided, however, that if the Issuer chooses to redeem less than all of the Notes, the Issuer will notify the Trustee at least ten (10) days before giving notice of redemption, or such shorter period as is satisfactory to the Trustee, of the aggregate principal amount of Notes to be redeemed and the applicable Redemption Date.

 

  (b) As used herein, the following terms shall have the respective meanings specified:

 

  (i) “Make-Whole Amount” means, in connection with any optional redemption, the excess, if any, of (a) the aggregate present value as of the date of such redemption of each dollar of principal being redeemed and the amount of interest, exclusive of interest accrued to the date of redemption, that would have been payable in respect of each such dollar if such redemption had not been made, determined by discounting, on a semi-annual basis (assuming a 360-day year of twelve 30-day months), such principal and interest at the Reinvestment Rate, determined on the third Business Day preceding the date notice of such redemption is given, from the respective dates on which such principal and interest would have been payable if such redemption had not been made, to the date of redemption, over (b) the aggregate principal amount of the Notes being redeemed.

 

  (ii) “Reinvestment Rate” means 0.35% plus the arithmetic mean of the yields under the heading “Week Ending” published in the most recent Statistical Release under the caption “Treasury Constant Maturities” for the maturity, rounded to the nearest month, corresponding to the remaining life to maturity, as of the redemption date of the Notes being redeemed. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding

 

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       each of such relevant periods to the nearest month. For the purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used. If the format or content of the Statistical Release changes in a manner that precludes determination of the Treasury yield in the above manner, then the Treasury yield shall be determined in the manner that most closely approximates the above manner, as reasonably determined by the Issuer.

 

  (iii) “Statistical Release” means the statistical release designated “H.15(519)” or any successor publication which is published weekly by the Federal Reserve System and which reports yields on actively traded United States government securities adjusted to constant maturities, or, if such statistical release is not published at the time of any required determination under the indenture, then such other reasonably comparable index which shall be designated by the Issuer.

 

  7. Change of Control .

 

  (a) Upon the occurrence of a Change of Control Repurchase Event (as defined below) unless the Issuer has exercised its right to redeem all the Notes in accordance with the redemption terms set forth herein, the Issuer shall be required to make an irrevocable offer to each holder of Notes to repurchase all or any part (in integral multiples of $1,000, provided any remaining principal amount resulting from a partial redemption is at least $2,000) of such holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of repurchase, subject to the rights of holders of notes on a record date to receive interest due on the related Interest Payment Date.

 

  (b) Within 30 days following any Change of Control Repurchase Event or, at the Issuer’s option, prior to any Change of Control (as defined below), but after the public announcement of such Change of Control, the Issuer shall mail to each holder of Notes, with a copy to the Trustee, a notice:

 

  (i) describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event;

 

  (ii) offering to repurchase all Notes tendered;

 

  (iii) setting forth the payment date for the repurchase of the Notes, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed;

 

  (iv) if mailed prior to the date of consummation of the Change of Control, stating that the offer to repurchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in such notice;

 

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  (v) disclosing that any Note not tendered for repurchase will continue to accrue interest; and

 

  (vi) specifying the procedures for tendering Notes.

 

  (c) The Issuer shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.

 

  (d) On the repurchase date in respect of a Change of Control Repurchase Event, the Issuer shall, to the extent lawful:

 

  (i) accept for payment all Notes or portions thereof properly tendered pursuant to such offer;

 

  (ii) deposit with the Issuer’s paying agent an amount equal to the aggregate purchase price in respect of all Notes or portions thereof properly tendered; and

 

  (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate stating the aggregate principal amount of Notes being repurchased by the Issuer and that all conditions precedent to the repurchase offer and repurchase by the Issuer of the notes have been complied with.

 

  (e) The Issuer shall not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under its offer.

 

  (f) The Issuer’s paying agent will promptly mail to each holder of Notes properly tendered the purchase price for such Notes, and the Trustee, upon the execution and delivery by the Issuer of such Notes, will promptly authenticate and mail (or cause to be transferred by book-entry) to each holder of a Note tendered in part for repurchase a new Note equal in principal amount to any unpurchased portion of such tendered Notes; provided that each new Note will be in a denomination of $2,000 and whole multiples of $1,000 in excess thereof.

 

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  (g) Solely for purposes of this Section 7, the following terms shall have the following meanings:

“Below Investment Grade Ratings Event” means that on any day within the 60-day period (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by each of the Rating Agencies) after the earlier of (i) the occurrence of a Change of Control; and (ii) public notice of the occurrence of a Change of Control or the intention by the Issuer or the Guarantor to effect a Change of Control, the Notes are rated below Investment Grade by each of the Rating Agencies. Notwithstanding the foregoing, a Below Investment Grade Ratings Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Ratings Event for purposes of the definition of Change of Control Repurchase Event hereunder) if any of the Rating Agencies making the reduction in rating to which this definition would otherwise apply does not announce or publicly confirm or inform the Trustee in writing that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of such ratings event).

“Capital Stock” means, with respect to any specified Person, any and all shares, interests, participations, or other equivalents (however designated, whether voting or non-voting), including partnership interests, whether general or limited, in the equity of such Person, whether outstanding on the date hereof or issued hereafter, including, without limitation, all common stock, preferred stock and units.

“Change of Control” means:

(i) any sale, lease, transfer or other conveyance (other than by way of merger or consolidation), whether direct or indirect, of all or substantially all of the assets of the Guarantor or the Issuer, on a consolidated basis, in one transaction or a series of related transactions, to any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) other than the Guarantor or one of its Subsidiaries;

(ii) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) other than the Guarantor or one of its Subsidiaries becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding Voting Stock of the Guarantor or the Issuer measured by voting power rather than number of shares or units; provided, however , that a transaction will not

 

5


      

 

be deemed to involve a Change of Control if the Guarantor or the Issuer becomes a wholly owned Subsidiary of a holding company and the holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Guarantor or the Issuer, as applicable, immediately prior to the transaction;

(iii) the Issuer or the Guarantor consolidates with, or merges with or into, any “person” (as such term is used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable), or any “person” consolidates with, or merges with or into, the Issuer or the Guarantor, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Issuer or the Guarantor, as the case may be, or such other “person” is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares or units of the Voting Stock of the Issuer or the Guarantor outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving “person” immediately after giving effect to such transaction;

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

(v) Plum Creek Timber I, L.L.C. (or a successor general partner that is a Subsidiary of the Guarantor) ceases to be a general partner of the Issuer or ceases to control the Issuer.

provided, however, that neither:

(x) the pro rata distribution by the Guarantor to its shareholders of Capital Stock of the Issuer or of any of the Guarantor’s other Subsidiaries; nor

(y) the replacement of Plum Creek Timber I, L.L.C. (or of a successor general partner) with a Subsidiary of the Guarantor as the general partner of the Issuer;

shall, in and of itself, constitute a Change of Control for purposes of this definition.

“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event.

“Continuing Directors” means, as of any date of determination, any member of the Guarantor’s Board of Directors who (1) was a member of such Board of Directors on the date the Notes were initially issued or (2) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the proxy statement of the Guarantor in which such member was named as a nominee for election as a director, without objection to such nomination).

 

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“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P), and the equivalent investment grade rating from any replacement rating agency or rating agencies selected by the Issuer under the circumstances permitting the Issuer to select a replacement rating agency and in the manner for selecting a replacement rating agency, in each case as set forth in the definition of “Rating Agencies.”

“Moody’s” means Moody’s Investors Service, Inc. (or any successor).

“Rating Agencies” means each of Moody’s and S&P; provided, if either of Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Issuer’s or the Guarantor’s control, the Issuer may appoint another “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2) (vi)(F) under the Exchange Act as a replacement agency for Moody’s or S&P, or both of them, as the case may be, provided that the Issuer delivers written notice of such appointment to the Trustee.

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. (or any successor).

“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such “person” that is at the time entitled to vote generally in the election of the board of directors, managers or trustees of such “person,” as applicable.

 

  8. Mandatory Redemption . The Notes are not mandatorily redeemable and are not entitled to the benefit of a sinking fund or any analogous provisions.

 

  9. Ranking Security . The Notes are unsecured obligations of the Issuer and rank equally with other unsecured indebtedness of the Issuer that is not subordinated to the Notes.

 

  10. Amount Payable Upon Acceleration . 100% of the principal of and accrued interest, if any, on the Notes shall be payable upon declaration of acceleration pursuant to Section 5.1 of the Indenture.

 

  11. Payment Currency—Election . The principal of, premium, if any, and interest on the Notes shall not be payable in a currency other than Dollars.

 

  12. Payment Currency—Index . The principal of, premium, if any, and interest on the Notes shall not be determined with reference to an index based on a coin or currency.

 

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  13. Registered Securities . The Notes shall be issued only as Registered Securities. The Notes shall be issuable as Registered Global Securities.

 

  14. Additional Amounts . The Issuer shall not pay additional amounts on the Notes held by a Person that is not a U.S. Person in respect of taxes or similar charges withheld or deducted.

 

  15. Notes in Definitive Form . Section 2.8 of the Indenture will govern the transferability of the Notes in definitive form.

 

  16. Registrar; Paying Agent; Depositary . The Trustee shall initially serve as the registrar and the paying agent for the Notes. The Depository Trust Company shall initially serve as the Depositary for the Registered Global Security representing the Notes.

 

  17. Events of Default . There shall be no deletions from, modifications or additions to the Events of Default set forth in Section 5.1 of the Indenture with respect to the Notes.

 

  18. Covenants . There shall be the following additions to the covenants of the Issuer set forth in Article III of the Indenture with respect to the Notes:

 

  (a) Limitations On Creation of Secured Debt. Neither the Issuer nor any Restricted Subsidiary of the Issuer will issue, incur, create, assume or guarantee any Secured Debt without securing the Notes equally and ratably with or prior to that Secured Debt unless after giving effect to such transaction, including any concurrent repayment of any Secured Debt, the sum of (A) the total amount of all Secured Debt with which the Notes are not at least equally and ratably secured and (B) the greater of the total net proceeds and all Attributable Debt with respect to all sale and lease-back transactions involving Principal Properties entered into after the date of the Indenture, other than those permitted under the “Limitations On Sale and Lease-Back Transactions” covenant below, would not exceed 10% of Consolidated Net Tangible Assets at the end of the Issuer’s most recent fiscal quarter.

 

  (b)

Limitations On Sale and Lease-Back Transactions. Subject to the immediately succeeding paragraph, neither the Issuer nor any Restricted Subsidiary of the Issuer will enter into any lease with a term longer than three years covering any Principal Property of the Issuer or its Restricted Subsidiaries that is sold to any other Person (other than the Guarantor, the Issuer or any Restricted Subsidiary) in connection with that lease unless: (i) the Issuer or any of its Restricted Subsidiaries would be entitled to incur Secured Debt on the Principal Property without equally and ratably securing the Notes pursuant to the covenant described in clause (a) above; or (ii) an amount equal to the greater of (x) the net proceeds from the sale of such Principal Property or (y) the Attributable Debt with respect to the sale and lease-back transaction is applied within 180 days of such sale to the voluntary retirement or prepayment of the Issuer’s or any Restricted Subsidiary’s long-term Debt which is senior to or equal with the Notes in right of payment or to the purchase or

 

8


      

 

  development of other property that will constitute Principal Property; or (iii) such sale and lease-back transaction is financed through an industrial revenue bond, industrial development bond, pollution control bond or similar financing arrangement between the Issuer or a Restricted Subsidiary and any federal, state or municipal government or other governmental body or quasi-governmental agency.

However, the Issuer and any of its Restricted Subsidiaries shall be able to enter into a sale and lease-back transaction without being required to apply the net proceeds or Attributable Debt as required above if, after giving effect to such transaction, including any concurrent repayment of Secured Debt, the sum of (A) the total amount of all Secured Debt with which the Notes are not at least equally and ratably secured and (B) the greater of the total net proceeds or Attributable Debt of all sale and lease-back transactions entered into after the date of the Indenture (other than as permitted by clause (b) of this Section 18), would not exceed 10% of Consolidated Net Tangible Assets at the end of the Issuer’s most recent fiscal quarter.

 

  (c) Definitions. As used herein, the following terms shall have the respective meanings specified:

 

  (i) “Attributable Debt” means, with regard to a sale and lease-back transaction, the lesser of (A) the fair market value of the property subject thereto as determined in good faith by the Board of Directors or (B) the discounted present value of all net rentals under the lease. The discount rate used to determine the discounted present value will equal the weighted average rates of all securities then issued and outstanding under the Indenture.

 

  (ii) “Consolidated Net Tangible Assets” means total assets less the sum of total current liabilities and intangible assets, in each case as set forth on the most recent consolidated balance sheet of the Issuer and its consolidated Subsidiaries and computed in accordance with generally accepted accounting principles (“GAAP”) in the United States.

 

  (iii) “Debt” means, at any time, all obligations of the Issuer and each Restricted Subsidiary, to the extent such obligations would appear as a liability upon the consolidated balance sheet of the Issuer, in accordance with generally accepted accounting principles, (1) for borrowed money, (2) evidenced by bonds, debentures, notes or other similar instruments, and (3) in respect of any letters of credit supporting any Debt of others, and all guarantees by the Issuer or any Restricted Subsidiary of Debt of others.

 

  (iv) “Lien” means a mortgage, security interest, security agreement, pledge, lien, charge or any other encumbrance of any kind.

 

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  (v) “Principal Property” means (1) Timberlands, and (2) any mill, converting plant, manufacturing plant or other facility owned on the date of the indenture or thereafter acquired by the Issuer or any Restricted Subsidiary that is located within the continental United States.

 

  (vi) “Restricted Subsidiary” means any direct or indirect domestic Subsidiary of the Issuer that owns any Principal Property.

 

  (vii)

“Secured Debt” means any Debt of the Issuer or any of its Restricted Subsidiaries that is secured by a Lien on any Principal Property or on any stock of, or on any Debt of, a Restricted Subsidiary. Secured Debt does not include Debt secured by: (a) Liens existing at the time of acquisition by the Issuer or any of its Restricted Subsidiaries on Principal Property or any stock of, or on any Debt of, a Restricted Subsidiary, whether or not assumed; (b) Liens to secure Debt among the Issuer and/or one of its Restricted Subsidiaries or among Restricted Subsidiaries; (c) Liens of an entity existing at the time such entity is merged or consolidated with the Issuer or a Restricted Subsidiary; (d) Liens on shares of stock or on Debt or other assets of an entity existing at the time such entity becomes a Restricted Subsidiary; (e) Liens of an entity at the time of a sale or lease of the properties of such entity as an entirety or substantially as an entirety to the Issuer or a Restricted Subsidiary; (f) Liens on timberlands in connection with an arrangement under which the Issuer and/or one or more of its Restricted Subsidiaries are obligated to cut and pay for timber in order to provide the Lien holder with a specified amount of money, however determined; (g) Liens on property to secure all or part of the cost of acquiring, substantially repairing or altering, constructing, developing or substantially improving the property, or to secure all or part of such property; provided that the principal amount of Debt secured by each such Lien (i) was incurred concurrently with, or within 18 months of, such acquisition, repair, alteration, construction, development or improvement and (ii) does not exceed the cost to the Issuer or such Restricted Subsidiary of the property subject to the Lien, as determined in accordance with GAAP; and (h) Liens created or incurred in connection with an industrial revenue bond, industrial development bond, pollution control bond or similar financing arrangement between the Issuer or a Restricted Subsidiary and any federal, state or municipal government or other governmental body or quasi-governmental agency; (i) Liens for taxes, assessments or other governmental charges which are not yet due or payable without penalty that are being contested by the Issuer or a Restricted Subsidiary, and for which adequate reserves have been created; (j) Liens arising out of litigation or judgments being contested in good faith and by appropriate proceedings; (k) materialmen’s, mechanics’, workmen’s, repairmen’s, landlord’s Liens for rent or other similar Liens arising in the ordinary course of business in respect

 

10


      

 

  of obligations which are not overdue or which are being contested by the Issuer or any of its Restricted Subsidiaries in good faith and by appropriate proceedings; (l) Liens consisting of zoning restrictions, licenses, easements and restrictions on the use of real property and minor irregularities that do not materially impair the use of the real property; (m) Liens existing at the date of the Indenture; or (n) Liens constituting any extension, renewal or replacement of any Lien listed above to the extent the amount of the Lien is not increased.

 

  (viii) “Timberlands” means any real property of the Issuer or any Restricted Subsidiary located within the continental United States which contains (or upon completion of a growth cycle then in process is expected to contain) standing timber of a commercial quantity and of merchantable quality, excluding, however, any such real property which at the time of determination is held primarily for development and not primarily for the production of timber.

 

  19. Guarantee . The Notes are guaranteed by the Guarantor as provided in Article XIII of the Indenture. The Guarantor’s guarantee of the Notes (the “Guarantee”) is an unsecured obligation of the Guarantor and ranks equally with other unsecured indebtedness of the Guarantor that is not subordinated to the Guarantee.

 

  20. Conversion and Exchange . The Notes shall not be convertible into or exchangeable into any other security.

 

  21. Further Issues . The Issuer may, without notice to or the consent of the holders of the Notes, create and issue additional debt securities ranking equally and ratably with the Notes in all respects and having the same terms as the Notes (other than issue date, and to the extent applicable, issue price, first date of interest accrual and first interest payment date of such debt securities), so that such additional debt securities shall be consolidated and form a single series with the Notes for all purposes, including voting.

 

  22. Other Terms . The Notes shall have the other terms and the Notes and the Guarantee shall be substantially in the forms set forth in Exhibit A hereto. In case of any conflict between this Annex A and the Notes, the forms of the Notes shall control.

Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture.

 

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Exhibit A

[–Exclude from Notes in definitive form–]

[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO PLUM CREEK TIMBERLANDS, L.P. (THE “ISSUER”) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE REGISTERED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.]

PLUM CREEK TIMBERLANDS, L.P.

4.70% Notes due 2021

 

CUSIP No. 72925PAC9   
ISIN No. US72925PAC95   
No. R-[__]    $[              ]

PLUM CREEK TIMBERLANDS, L.P., a limited partnership duly organized and existing under the laws of the State of Delaware (herein referred to as the “Issuer,” which term includes any successor thereof under the Indenture hereinafter referred to) for value received, hereby promises to pay to CEDE & CO. , or its registered assigns, the principal sum of [                  ] DOLLARS ($[              ]) on March 15, 2021 (the “Stated Maturity Date” with respect to the principal of this Note), unless previously redeemed or repurchased on any Redemption Date (as defined below) or Repurchase Date (as defined below), as the case may be, in accordance with the provisions set forth on the reverse hereof (the Stated Maturity Date or any Redemption Date or Repurchase Date is referred herein as the “Maturity Date” with respect to principal repayable on such date) and to pay interest thereon semiannually in arrears on March 15 and September 15 of each year, commencing on March 15, 2011 (each, an “Interest Payment Date”), at the rate of 4.70% per annum, until payment of said principal has been made or duly provided for. Interest on this Note payable on an Interest Payment Date will accrue from and including the immediately preceding Interest Payment Date to which interest has been paid or duly made available for payment, or from and including November 15, 2010 if no interest has been paid or duly made available for payment, to but excluding the applicable Interest Payment Date or the Maturity Date, as the case may be. Interest on this Note will be computed on the basis of a 360-day year consisting of twelve 30-day months.

Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to them in the Indenture (as defined on

the reverse hereof).

 


      

 

The interest so payable and punctually paid or duly made available for payment on any Interest Payment Date will be paid to the Holder in which name this Note (or one or more predecessor Notes) is registered in the Security register at the close of business on the “Regular Record Date” for such payment, which shall be March 1 or September 1, as the case may be, immediately preceding such Interest Payment Date (regardless of whether such day is a Business Day (as defined below)). Any such interest not so punctually paid or duly made available for payment shall forthwith cease to be payable to the Holder on such Regular Record Date, and shall be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on a subsequent “Special Record Date” for the payment of such defaulted interest (which shall be not more than 5 Business Days prior to the date of the payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders of the Notes not less than 15 calendar days preceding such subsequent Special Record Date, or may be paid at any time in any other lawful manner, all as more fully provided in the Indenture.

The principal of, and premium, if any, with respect to, this Note payable on the Maturity Date will be paid against presentation and surrender of this Note at the office or agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York. The Issuer hereby initially designates the Corporate Trust Office of the Trustee (as defined on the reverse hereof) at 100 Wall Street, 16 th Floor, New York, New York 10004 as the office to be maintained by it where Notes may be presented for payment, registration of transfer or exchange and where notices or demands to or upon the Issuer in respect of the Notes or the Indenture may be served.

If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the payment required to be made on such date will, instead, be made on the next Business Day with the same force and effect as if it were made on the date such payment was due, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or the Maturity Date, as the case may be. “Business Day” means any day, other than a Saturday, a Sunday or other day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to be closed.

Payments of principal, premium, if any, and interest in respect of this Note will be made in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts (i) in the case of payments on the Maturity Date, in immediately available funds and (ii) in the case of payments of interest on an Interest Payment Date other than the Maturity Date, at the option of the Issuer, by check mailed to the Holder entitled thereto at the applicable address appearing in the Security register or by transfer of immediately available funds to an account maintained by the payee with a bank located in the United States of America; provided, however, that so long as Cede & Co. is the Holder of this Note, payments of interest on an Interest Payment Date may be made in immediately available funds.

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 entitled to the benefits of the Indenture or the Guarantee (as defined on the reverse of this Note) or be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been executed by manual signature by the Trustee.

 


      

 

IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed, manually or by facsimile by an authorized signatory.

Date: November 15, 2010

 

          PLUM CREEK TIMBERLANDS, L.P., as Issuer
By:           PLUM CREEK TIMBER I, L.L.C.
          its General Partner
  By:         PLUM CREEK TIMBER COMPANY, INC.
          its Sole Member
    By:    

     

        Name:  
          Title:  

 

ATTEST:
By:  

 

  Assistant Secretary

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated herein, referred to in the within-mentioned Indenture.

 

    U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:    

   

      Authorized Signatory

 


      

 

[FORM OF REVERSE OF NOTE]

PLUM CREEK TIMBERLANDS, L.P.

4.70% Note due 2021

This Note is one of a duly authorized issue of senior debt securities of the Issuer (hereinafter called the “Securities”) of the series hereinafter specified, all issued or to be issued under and pursuant to an Indenture, dated as of November 14, 2005 (the “Indenture”), duly executed and delivered by the Issuer and Plum Creek Timber Company, Inc., as guarantor (the “Guarantor”), to U.S. Bank National Association, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture with respect to the series of Securities of which this Note is a part), and reference is hereby made to the Indenture, and all modifications and amendments and indentures supplemental thereto relating to the Notes, made for a description of the rights, limitations of rights, obligations, duties, and immunities thereunder of the Trustee, the Issuer, the Guarantor and the Holders of the Notes and the terms upon which the Notes are authenticated and delivered. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may accrue interest (if any) at different rates or formulas and may otherwise vary as provided in the Indenture. This Note is one of a series of Securities designated as the “4.70% Notes due 2021” (collectively, the “Notes”) of the Issuer, limited (except as permitted under the Indenture) in aggregate principal amount to $575,000,000.

Payments of principal, premium, if any, and interest in respect of the Notes will be fully and unconditionally guaranteed by the Guarantor.

The Issuer may redeem this Note, at any time in whole or from time to time in part, at the option of the Issuer, at a price equal to the sum of 100% of the aggregate principal amount of the Notes being redeemed, accrued but unpaid interest on those Notes to but excluding the date fixed for redemption (the “Redemption Date”), and, unless the Notes are redeemed on or after December 15, 2020, the Make-Whole Amount, if any, as defined below (the “Redemption Price”); provided , however , that interest installments due on an Interest Payment Date which is on or prior to the Redemption Date will be payable to the Holder hereof (or one or more predecessor Notes) as of the close of business on the Regular Record Date preceding such Interest Payment Date.

If notice has been given as provided in the Indenture and funds for the redemption of this Note or any part thereof called for redemption shall have been made available on the Redemption Date, this Note or such part thereof will cease to bear interest on the Redemption Date referred to in such notice and the only right of the Holder will be to receive payment of the Redemption Price. Notice of any optional redemption of any Notes will be given to the Holder hereof (in accordance with the provisions of the Indenture), not more than 60 nor less than 30 days prior to the Redemption Date. The notice of redemption will specify, among other things, the Redemption Date, the Redemption Price and the principal amount of Notes to be redeemed. In the event of redemption of this Note in part only, a new Note of like tenor for the unredeemed portion hereof and otherwise having the same terms and provisions as this Note shall be issued by the Issuer in the name of the Holder hereof upon the presentation and surrender hereof.

Make-Whole Amount ” means, in connection with any optional redemption, the excess, if any, of (a) the aggregate present value as of the date of such redemption of each dollar of principal being

 


      

 

redeemed and the amount of interest, exclusive of interest accrued to the Redemption Date, that would have been payable in respect of each such dollar if such redemption had not been made, determined by discounting, on a semi-annual basis (assuming a 360-day year of twelve 30-day months), such principal and interest at the Reinvestment Rate, determined on the third Business Day preceding the date notice of such redemption is given, from the respective dates on which such principal and interest would have been payable if such redemption had not been made, to the date of redemption, over (b) the aggregate principal amount of the Notes being redeemed.

Reinvestment Rate ” means 0.35% plus the arithmetic mean of the yields under the heading “Week Ending” published in the most recent Statistical Release under the caption “Treasury Constant Maturities” for the maturity, rounded to the nearest month, corresponding to the remaining life to maturity, as of the redemption date of the Notes being redeemed. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding each of such relevant periods to the nearest month. For the purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used. If the format or content of the Statistical Release changes in a manner that precludes determination of the Treasury yield in the above manner, then the Treasury yield shall be determined in the manner that most closely approximates the above manner, as reasonably determined by the Issuer.

Statistical Release ” means the statistical release designated “H.15(519)” or any successor publication which is published weekly by the Federal Reserve System and which reports yields on actively traded United States government securities adjusted to constant maturities, or, if such statistical release is not published at the time of any required determination under the indenture, then such other reasonably comparable index which shall be designated by the Issuer.

Upon the occurrence of a Change of Control Repurchase Event (as defined below), unless the Issuer has exercised its right to redeem all the Notes in accordance with the redemption terms as set forth herein, the Issuer shall be required to make an irrevocable offer to each Holder of Notes to repurchase all or any part (in integral multiples of $1,000, provided any remaining principal amount resulting from a partial redemption is at least $2,000) of such Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of repurchase, subject to the rights of Holders of Notes on a Regular Record Date or Special Record Date, as applicable to receive interest due on the related Interest Payment Date.

Within 30 days following any Change of Control Repurchase Event or, at the Issuer’s option, prior to any Change of Control (as defined below), but after the public announcement of such Change of Control, the Issuer shall mail to each Holder of Notes, with a copy to the Trustee, a notice:

 

  (i) describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event;

 

  (ii) offering to repurchase all Notes tendered;

 


      

 

  (iii) setting forth the payment date for the repurchase of the Notes (the “Repurchase Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed;

 

  (iv) if mailed prior to the date of consummation of the Change of Control, stating that the offer to repurchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the Repurchase Date;

 

  (v) disclosing that any Note not tendered for repurchase will continue to accrue interest; and

 

  (vi) specifying the procedures for tendering Notes.

The Issuer shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.

On the Repurchase Date in respect of a Change of Control Repurchase Event, the Issuer shall, to the extent lawful:

 

  (i) accept for payment all Notes or portions thereof properly tendered pursuant to such offer;

 

  (ii) deposit with the paying agent for the Notes (the “Paying Agent”), which shall initially be the Trustee, an amount equal to the aggregate repurchase price in respect of all Notes or portions thereof properly tendered; and

 

  (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate stating the aggregate principal amount of Notes being repurchased by the Issuer and that all conditions precedent to the repurchase offer and repurchase by the Issuer have been complied with.

The Issuer shall not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under its offer.

The Paying Agent will promptly mail to each Holder of Notes properly tendered the purchase price for such Notes, and the Trustee, upon the execution and delivery by the Issuer of such Notes, will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder of a Note tendered in part for repurchase a new Note equal in principal amount to any unrepurchased portion of such tendered Notes; provided that each new Note will be in a denomination of $2,000 and whole multiples of $1,000 in excess thereof.

 


      

 

Below Investment Grade Ratings Event ” means that on any day within the 60-day period (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by each of the Rating Agencies) after the earlier of (i) the occurrence of a Change of Control; and (ii) public notice of the occurrence of a Change of Control or the intention by the Issuer or the Guarantor to effect a Change of Control, the Notes are rated below Investment Grade by each of the Rating Agencies. Notwithstanding the foregoing, a Below Investment Grade Ratings Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Ratings Event for purposes of the definition of Change of Control Repurchase Event hereunder) if any of the Rating Agencies making the reduction in rating to which this definition would otherwise apply does not announce or publicly confirm or inform the Trustee in writing that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of such ratings event).

Capital Stock ” means ,with respect to any specified Person, any and all shares, interests, participations, or other equivalents (however designated, whether voting or non-voting), including partnership interests, whether general or limited, in the equity of such Person, whether outstanding on the date hereof or issued hereafter, including, without limitation, all common stock, preferred stock and units.

Change of Control ” means:

(i) any sale, lease, transfer or other conveyance (other than by way of merger or consolidation), whether direct or indirect, of all or substantially all of the assets of the Guarantor or the Issuer, on a consolidated basis, in one transaction or a series of related transactions, to any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) other than the Guarantor or one of its Subsidiaries;

(ii) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) other than the Guarantor or one of its Subsidiaries becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding Voting Stock of the Guarantor or the Issuer measured by voting power rather than number of shares or units; provided, however , that a transaction will not be deemed to involve a Change of Control if the Guarantor or the the Issuer becomes a wholly owned Subsidiary of a holding company and the holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Guarantor or the Issuer, as applicable, immediately prior to the transaction;

(iii) the Issuer or the Guarantor consolidates with, or merges with or into, any “person” (as such term is used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable), or any “person” consolidates with, or merges with or into, the Issuer or the Guarantor, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Issuer or the Guarantor, as the case may be, or such other “person” is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares or units of the Voting Stock of the Issuer or the Guarantor outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving “person” immediately after giving effect to such transaction;

 


      

 

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

(v) Plum Creek Timber I, L.L.C. (or a successor general partner that is a Subsidiary of the Guarantor) ceases to be a general partner of the

Issuer or ceases to control the Issuer.

provided, however, that neither:

(x) the pro rata distribution by the Guarantor to its shareholders of Capital Stock of the Issuer or of any of the Guarantor’s other Subsidiaries;

nor

(y) the replacement of Plum Creek Timber I, L.L.C. (or of a successor general partner) with a Subsidiary of the Guarantor as the general

partner of the Issuer;

shall, in and of itself, constitute a Change of Control for purposes of this definition.

Change of Control Repurchase Event ” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event.

Continuing Directors ” means, as of any date of determination, any member of the Guarantor’s Board of Directors who (1) was a member of such Board of Directors on the date the Notes were initially issued or (2) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the proxy statement of the Guarantor in which such member was named as a nominee for election as a director, without objection to such nomination).

Investment Grade ” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P), and the equivalent investment grade rating from any replacement rating agency or rating agencies selected by the Issuer under the circumstances permitting the Issuer to select a replacement rating agency and in the manner for selecting a replacement rating agency, in each case as set forth in the definition of “Rating Agencies.”.

Moody’s ” means Moody’s Investors Service, Inc. (or any successor).

Rating Agencies ” means each of Moody’s and S&P; provided, if either of Moody’s or S&P ceases to rate the notes or fails to make a rating of the Notes publicly available for reasons outside of the Issuer’s or the Guarantor’s control, the Issuer may appoint another “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act as a replacement agency for Moody’s or S&P, or both of them, as the case may be, provided that the Issuer delivers written notice of such appointment to the Trustee.

S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. (or any successor).

 


      

 

Voting Stock ” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such “person” that is at the time entitled to vote generally in the election of the board of directors, managers or trustees of such “person,” as applicable.

This Note is not mandatorily redeemable and is not entitled to the benefit of a sinking fund or any analogous provisions.

In case an Event of Default with respect to this Note shall have occurred and be continuing, the principal hereof may be (and, in certain cases, shall 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.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and, if applicable, the Guarantor, and the rights of the Holders of the Securities under the Indenture at any time by the Issuer and, if applicable, the Guarantor, and the Trustee with the consent of the Holders of a majority in the aggregate principal amount of Securities of all series issued under the Indenture at the time Outstanding and affected thereby. Furthermore, provisions in the Indenture permit the Holders of a majority in the aggregate principal amount of the Outstanding Securities of any series, in certain instances, to waive, on behalf of all of the Holders of Securities of such series, certain past defaults under the Indenture and their consequences. Any such waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and other Notes issued upon the registration of transfer hereof or in exchange hereof, or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

No reference herein to the Indenture and no provision of this Note or the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of, and premium, if any, with respect to, and interest on, this Note in the manner, at the respective times, at the rate and in the coin or currency herein prescribed.

This Note is issuable only in definitive registered form, without coupons, in denominations of $2,000 and integral multiples of $1,000 in excess thereof. This Note may be exchanged for a like aggregate principal amount of Notes of other authorized denominations at the office or agency of the Issuer in The City of New York, in the manner and subject to the limitations provided herein and in the Indenture, but without the payment of any charge except for any tax or other governmental charge imposed in connection therewith.

The Issuer shall not pay additional amounts on this Note held by a Person that is not a U.S. Person in respect of taxes or similar charges withheld or deducted.

The Issuer, the Guarantor or the Trustee and any authorized agent of the Issuer, the Guarantor or the Trustee may deem and treat the Person in whose name this Note is registered as the Holder and 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 of, or premium, if any, with respect to, or subject to the provisions on the face hereof, interest on, this Note and for all other purposes, and none of the Issuer, the Guarantor or the Trustee or any authorized agent of the Issuer, the Guarantor or the Trustee shall be affected by any notice to the contrary.

 


      

 

THE INDENTURE AND THIS NOTE 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 INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

 


      

 

GUARANTEE

OF

PLUM CREEK TIMBER COMPANY, INC.

For value received, Plum Creek Timber Company, Inc., a corporation duly organized and existing under the laws of the State of Delaware (the “Guarantor”), hereby unconditionally guarantees to the Holder of the Note upon which this Guarantee is endorsed the due and punctual payment of the principal of, interest on, and premium, if any, required with respect to said Note, when and as the same shall become due and payable, whether on the Stated Maturity Date, by acceleration, redemption, repurchase or repayment or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of Plum Creek Timberlands, L.P. (the “Issuer,” which term includes any successor thereof under the Indenture) punctually to pay any such principal, interest, or premium, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether on the Stated Maturity Date, by acceleration, redemption, repurchase or repayment or otherwise, and as if such payment were made by the Issuer.

The obligations of the Guarantor to the Holders and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article XIII of the Indenture and reference is hereby made to such Indenture for the precise terms of this Guarantee.

The Guarantor hereby agrees that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute, irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of said Note or said Indenture, any failure to enforce the provisions of said Note or said Indenture, or any waiver, modification, consent or indulgence granted to the Issuer with respect thereto, by the Holder of said Note or the Trustee under said Indenture, the recovery of any judgment against the Issuer or any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to said Note or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, and interest on, and premium, if any, required with respect to, said Note and the complete performance of all other obligations contained in said Note.

The Guarantor shall be subrogated to all rights of the Holder of said Note against the Issuer in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided , however , that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, interest on, and premium, if any, required with respect to, all Notes of this series issued under said Indenture shall have been paid in full and its other obligations under said Indenture completed.

The Guarantor hereby certifies and warrants that all acts, conditions and things required to be done and performed and to have happened precedent to the creation and issuance of this Guarantee and to constitute the same the valid obligation of the Guarantor have been done and performed and have happened in due compliance with all applicable laws.

This Guarantee as endorsed on said Note shall not be entitled to any benefit under said Indenture or become valid or obligatory for any purpose until the certificate of authentication on said Note shall have been signed manually by or on behalf of the Trustee under said Indenture.

 


      

 

THE GUARANTEE AND THIS NOTE 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 INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

 


      

 

IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed, manually or by facsimile by an authorized signatory.

Date: November 15, 2010

 

  PLUM CREEK TIMBER COMPANY, INC.,
  as Guarantor
By:  

 

  Name:
  Title:

 

ATTEST:
By:  

 

  Assistant Secretary

 


      

 

ASSIGNMENT FORM

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

 

 

Please insert social security number or other identifying number of assignee:

 

 
Please print or type name and address (including zip code) of assignee:  

 

 

 

 

 

 

 

 

the within Note and all rights thereunder, hereby irrevocably constituting and appointing                                                       attorney to transfer said Note of PLUM CREEK TIMBERLANDS, L.P. on the books of PLUM CREEK TIMBERLANDS, L.P., with full power of substitution in the premises.

 

 

 

Dated:                                                                         

Signature Guaranteed

 

 

  

 

NOTICE: Signature must be guaranteed by an eligible Guarantor Institution (banks, stockbrokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15.    NOTICE: The signature to this Assignment must correspond with the name as written upon the face of the within Note in every particular, without alteration or enlargement or any change whatever.

 

Exhibit 4.4

OFFICER’S CERTIFICATE

The undersigned, Laura Smith, Vice President and Treasurer of Plum Creek Timber Company, Inc. (the “Company”), a Delaware corporation, hereby certifies, on behalf of the Company in its capacity as sole member of Plum Creek Timber I, L.L.C., a Delaware limited liability company, in its capacity as general partner of Plum Creek Timberlands, L.P. (the “Operating Partnership”), a Delaware limited partnership, pursuant to Sections 2.1, 2.3 and 11.5 of the Indenture, dated as of November 14, 2005 (the “Indenture”), by and among the Operating Partnership, as issuer, the Company, as guarantor, and U.S. Bank National Association, a national banking association, as trustee, as follows:

 

  1. The undersigned has read Sections 2.1 and 2.3 of the Indenture and such other sections of the Indenture and other documents and has made such other inquiries as she has deemed necessary to make the certifications set forth herein.

 

  2. In the opinion of the undersigned, the covenants and conditions precedent provided for in the Indenture and as set forth in Annex A attached hereto relating to the issuance of the Operating Partnership’s 3.25% Notes due 2023 (the “Notes”) have been complied with.

 

  3. The forms of the Notes and the guarantees of the Notes by the Company, and the terms of the Notes, as set forth in Annex A attached hereto, have been duly established pursuant to Sections 2.1 and 2.3 of the Indenture and comply with the Indenture.

[SIGNATURE ON FOLLOWING PAGE]


 

IN WITNESS WHEREOF, the undersigned has caused this certificate to be duly executed as of this 26 th day of November, 2012.

 

      PLUM CREEK TIMBERLANDS, L.P.
By:       PLUM CREEK TIMBER I, L.L.C.
      its General Partner
  By:     PLUM CREEK TIMBER COMPANY, INC.
      its Sole Member
    By:  

/s/ Laura Smith

      Name: Laura Smith
    Title: Vice President and Treasurer

[Signature page to Officer’s Certificate to Indenture]


 

ANNEX A

Pursuant to Sections 2.1 and 2.3 of the Indenture, dated as of November 14, 2005 (the “Indenture”), among Plum Creek Timberlands, L.P. (the “Issuer”), Plum Creek Timber Company, Inc. (the “Guarantor”) and U.S. Bank National Association, as trustee (the “Trustee”), the terms of a series of Securities to be issued pursuant to the Indenture are as follows:

 

  1. Designation . The designation of the Securities is the “3.25% Notes due 2023” (herein referred to as the “Notes”).

 

  2. Initial Aggregate Principal Amount . The Notes shall be limited in initial aggregate principal amount to $325,000,000 (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3 of the Indenture and Section 7(f) hereof).

 

  3. Maturity . The date on which the principal of the Notes is payable is March 15, 2023 (the “Stated Maturity Date”).

 

  4. Rate of Interest; Interest Payment Date; Regular Record Dates . Each Note shall bear interest at the rate of 3.25% per year, until the principal thereof is paid. Such interest shall be payable semi-annually in arrears on March 15 and September 15 of each year (each, an “Interest Payment Date”), commencing on March 15, 2013, to the Persons in whose names the Notes are registered at the close of business on the immediately preceding March 1 or September 1 (each, a “record date”), as the case may be. Interest on the Notes shall accrue from and including the immediately preceding Interest Payment Date in respect of which interest has been paid or duly made available for payment (or from and including the date of issue, if no interest has been paid or duly made available for payment with respect to the Notes) to, but excluding the applicable Interest Payment Date, the Stated Maturity Date or date of earlier redemption or repurchase (the Stated Maturity Date or date of earlier redemption or repurchase referred to collectively herein as the “Maturity Date”), as the case may be. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the required payment of principal, premium, if any, and/or interest payable on such date will be made on the next succeeding Business Day as if made on the date such payment was due, and no interest will accrue on such payment for the period from and after such Interest Payment Date or the Maturity Date, as the case may be, to the date of such payment on the next succeeding Business Day.

 

  5. Place of Payment . Payments of principal, premium, if any, and interest on the Notes shall be payable, at the office of the Issuer’s paying agent maintained in the Borough of Manhattan, The City of New York. Payment of principal of, or premium, if any, on a definitive Note may be made only against surrender of the Note to the Issuer’s paying agent. The Issuer may, however, make payments of interest by mailing checks to the address of the holder of the Notes appearing in the security register maintained by the registrar. However, while any Notes are represented by a Registered Global Security, payment of principal of, premium, if any, or interest on the Notes may be made by wire transfer to the account of the Depositary or its nominee.

 

A-1


 

 

  6. Optional Redemption .

 

  (a) The Issuer may redeem the Notes at any time in whole or from time to time in part for cash at a redemption price equal to the sum of 100% of the aggregate principal amount of the Notes being redeemed, accrued but unpaid interest, if any, on those Notes to, but not including, the redemption date, and the Make-Whole Amount (as defined below), if any. If the Notes are redeemed on or after December 15, 2022, the redemption price will equal the sum of 100% of the aggregate principal amount of the Notes being redeemed and accrued but unpaid interest, if any, on those Notes to, but not including, the redemption date. The Issuer will, however, pay the interest installment due on any Interest Payment Date that occurs on or before a redemption date to the registered holders of the Notes as of the close of business on the record date immediately preceding that Interest Payment Date. If the Issuer has given notice as provided in the Indenture and made funds available for the redemption of any Notes called for redemption on the redemption date referred to in that notice, those Notes will cease to bear interest on that redemption date and the only right of the holders of those Notes will be to receive payment of the redemption price. Notice of redemption and partial redemption shall be as provided in the Indenture; provided, however, that if the Issuer chooses to redeem less than all of the Notes, the Issuer will notify the Trustee at least ten (10) days before giving notice of redemption, or such shorter period as is satisfactory to the Trustee, of the aggregate principal amount of Notes to be redeemed and the applicable Redemption Date.

 

  (b) As used herein, the following terms shall have the respective meanings specified:

 

  (i) “Make-Whole Amount” means, in connection with any optional redemption, the excess, if any, of (a) the aggregate present value as of the date of such redemption of each dollar of principal being redeemed and the amount of interest, exclusive of interest accrued to the date of redemption, that would have been payable in respect of each such dollar if such redemption had not been made, determined by discounting, on a semi-annual basis (assuming a 360-day year of twelve 30-day months), such principal and interest at the Reinvestment Rate, determined on the third Business Day preceding the date notice of such redemption is given, from the respective dates on which such principal and interest would have been payable if such redemption had not been made, to the date of redemption, over (b) the aggregate principal amount of the Notes being redeemed.

 

A-2


 

 

  (ii) “Reinvestment Rate” means 0.25% plus the arithmetic mean of the yields under the heading “Week Ending” published in the most recent Statistical Release under the caption “Treasury Constant Maturities” for the maturity, rounded to the nearest month, corresponding to the remaining life to maturity, as of the redemption date of the Notes being redeemed. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding each of such relevant periods to the nearest month. For the purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used. If the format or content of the Statistical Release changes in a manner that precludes determination of the Treasury yield in the above manner, then the Treasury yield shall be determined in the manner that most closely approximates the above manner, as reasonably determined by the Issuer.

 

  (iii) “Statistical Release” means the statistical release designated “H.15(519)” or any successor publication which is published weekly by the Federal Reserve System and which reports yields on actively traded United States government securities adjusted to constant maturities, or, if such statistical release is not published at the time of any required determination under the indenture, then such other reasonably comparable index which shall be designated by the Issuer.

 

  7. Change of Control .

 

  (a) Upon the occurrence of a Change of Control Repurchase Event (as defined below) unless the Issuer has exercised its right to redeem all the Notes in accordance with the redemption terms set forth herein, the Issuer shall be required to make an irrevocable offer to each holder of Notes to repurchase all or any part (in integral multiples of $1,000, provided any remaining principal amount resulting from a partial redemption is at least $2,000) of such holder’s Notes for cash at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of repurchase, subject to the rights of holders of notes on a record date to receive interest due on the related Interest Payment Date.

 

A-3


 

 

  (b) Within 30 days following any Change of Control Repurchase Event or, at the Issuer’s option, prior to any Change of Control (as defined below), but after the public announcement of such Change of Control, the Issuer shall mail to each holder of Notes, with a copy to the Trustee, a notice:

 

  (i) describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event;

 

  (ii) offering to repurchase all Notes tendered;

 

  (iii) setting forth the payment date for the repurchase of the Notes, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed;

 

  (iv) if mailed prior to the date of consummation of the Change of Control, stating that the offer to repurchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in such notice;

 

  (v) disclosing that any Note not tendered for repurchase will continue to accrue interest; and

 

  (vi) specifying the procedures for tendering Notes.

 

  (c) The Issuer shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.

 

  (d) On the repurchase date in respect of a Change of Control Repurchase Event, the Issuer shall, to the extent lawful:

 

  (i) accept for payment all Notes or portions thereof properly tendered pursuant to such offer;

 

  (ii) deposit with the Issuer’s paying agent an amount equal to the aggregate purchase price in respect of all Notes or portions thereof properly tendered; and

 

  (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate stating the aggregate principal amount of Notes being repurchased by the

 

A-4


 

 

Issuer and that all conditions precedent to the repurchase offer and repurchase by the Issuer of the notes have been complied with.

 

  (e) The Issuer shall not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under its offer.

 

  (f) The Issuer’s paying agent will promptly mail to each holder of Notes properly tendered the purchase price for such Notes, and the Trustee, upon the execution and delivery by the Issuer of such Notes, will promptly authenticate and mail (or cause to be transferred by book-entry) to each holder of a Note tendered in part for repurchase a new Note equal in principal amount to any unpurchased portion of such tendered Notes; provided that each new Note will be in a denomination of $2,000 and whole multiples of $1,000 in excess thereof.

 

  (g) Solely for purposes of this Section 7, the following terms shall have the following meanings:

“Below Investment Grade Ratings Event” means that on any day within the 60-day period (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by each of the Rating Agencies) after the earlier of (i) the occurrence of a Change of Control; and (ii) public notice of the occurrence of a Change of Control or the intention by the Issuer or the Guarantor to effect a Change of Control, the Notes are rated below Investment Grade by each of the Rating Agencies. Notwithstanding the foregoing, a Below Investment Grade Ratings Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Ratings Event for purposes of the definition of Change of Control Repurchase Event hereunder) if any of the Rating Agencies making the reduction in rating to which this definition would otherwise apply does not announce or publicly confirm or inform the Trustee in writing that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of such ratings event).

“Capital Stock” means, with respect to any specified Person, any and all shares, interests, participations, or other equivalents (however designated, whether voting or non-voting), including partnership interests, whether general or limited, in the equity of such Person, whether outstanding on the date hereof or issued hereafter, including, without limitation, all common stock, preferred stock and units.

 

A-5


 

 

“Change of Control” means:

(i) any sale, lease, transfer or other conveyance (other than by way of merger or consolidation), whether direct or indirect, of all or substantially all of the assets of the Guarantor or the Issuer, on a consolidated basis, in one transaction or a series of related transactions, to any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) other than the Guarantor or one of its Subsidiaries;

(ii) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) other than the Guarantor or one of its Subsidiaries becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding Voting Stock of the Guarantor or the Issuer measured by voting power rather than number of shares or units; provided, however, that a transaction will not be deemed to involve a Change of Control if the Guarantor or the Issuer becomes a wholly owned Subsidiary of a holding company and the holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Guarantor or the Issuer, as applicable, immediately prior to the transaction;

(iii) the Issuer or the Guarantor consolidates with, or merges with or into, any “person” (as such term is used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable), or any “person” consolidates with, or merges with or into, the Issuer or the Guarantor, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Issuer or the Guarantor, as the case may be, or such other “person” is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares or units of the Voting Stock of the Issuer or the Guarantor outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving “person” immediately after giving effect to such transaction;

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

(v) Plum Creek Timber I, L.L.C. (or a successor general partner that is a Subsidiary of the Guarantor) ceases to be a general partner of the Issuer or ceases to control the Issuer.

 

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provided, however, that neither:

(x) the pro rata distribution by the Guarantor to its shareholders of Capital Stock of the Issuer or of any of the Guarantor’s other Subsidiaries; nor

(y) the replacement of Plum Creek Timber I, L.L.C. (or of a successor general partner) with a Subsidiary of the Guarantor as the general partner of the Issuer; shall, in and of itself, constitute a Change of Control for purposes of this definition.

“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event.

“Continuing Directors” means, as of any date of determination, any member of the Guarantor’s Board of Directors who (1) was a member of such Board of Directors on the date the Notes were initially issued or (2) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the proxy statement of the Guarantor in which such member was named as a nominee for election as a director, without objection to such nomination).

“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P), and the equivalent investment grade rating from any replacement rating agency or rating agencies selected by the Issuer under the circumstances permitting the Issuer to select a replacement rating agency and in the manner for selecting a replacement rating agency, in each case as set forth in the definition of “Rating Agencies.”

“Moody’s” means Moody’s Investors Service, Inc. (or any successor).

“Rating Agencies” means each of Moody’s and S&P; provided, if either of Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Issuer’s or the Guarantor’s control, the Issuer may appoint another “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act as a replacement agency for Moody’s or S&P, or both of them, as the case may be, provided that the Issuer delivers written notice of such appointment to the Trustee.

 

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“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. (or any successor).

“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such “person” that is at the time entitled to vote generally in the election of the board of directors, managers or trustees of such “person,” as applicable.

 

  8. Mandatory Redemption . The Notes are not mandatorily redeemable and are not entitled to the benefit of a sinking fund or any analogous provisions.

 

  9. Ranking Security . The Notes are unsecured obligations of the Issuer and rank equally with other unsecured indebtedness of the Issuer that is not subordinated to the Notes.

 

  10. Amount Payable Upon Acceleration . 100% of the principal of and accrued interest, if any, on the Notes shall be payable upon declaration of acceleration pursuant to Section 5.1 of the Indenture.

 

  11. Payment Currency —Election. The principal of, premium, if any, and interest on the Notes shall not be payable in a currency other than Dollars.

 

  12. Payment Currency —Index. The principal of, premium, if any, and interest on the Notes shall not be determined with reference to an index based on a coin or currency.

 

  13. Registered Securities . The Notes shall be issued only as Registered Securities. The Notes shall be issuable as Registered Global Securities.

 

  14. Additional Amounts . The Issuer shall not pay additional amounts on the Notes held by a Person that is not a U.S. Person in respect of taxes or similar charges withheld or deducted.

 

  15. Notes in Definitive Form . Section 2.8 of the Indenture will govern the transferability of the Notes in definitive form.

 

  16. Registrar; Paying Agent; Depositary . The Trustee shall initially serve as the registrar and the paying agent for the Notes. The Depository Trust Company shall initially serve as the Depositary for the Registered Global Security representing the Notes.

 

  17. Events of Default . There shall be no deletions from, modifications or additions to the Events of Default set forth in Section 5.1 of the Indenture with respect to the Notes.

 

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  18. Covenants . There shall be the following additions to the covenants of the Issuer set forth in Article III of the Indenture with respect to the Notes:

 

  (a) Limitations On Creation of Secured Debt. Neither the Issuer nor any Restricted Subsidiary of the Issuer will issue, incur, create, assume or guarantee any Secured Debt without securing the Notes equally and ratably with or prior to that Secured Debt unless after giving effect to such transaction, including any concurrent repayment of any Secured Debt, the sum of (A) the total amount of all Secured Debt with which the Notes are not at least equally and ratably secured and (B) the greater of the total net proceeds and all Attributable Debt with respect to all sale and lease-back transactions involving Principal Properties entered into after the date of the Indenture, other than those permitted under the “Limitations On Sale and Lease-Back Transactions” covenant below, would not exceed 10% of Consolidated Net Tangible Assets at the end of the Issuer’s most recent fiscal quarter.

 

  (b) Limitations On Sale and Lease-Back Transactions. Subject to the immediately succeeding paragraph, neither the Issuer nor any Restricted Subsidiary of the Issuer will enter into any lease with a term longer than three years covering any Principal Property of the Issuer or its Restricted Subsidiaries that is sold to any Person (other than the Guarantor, the Issuer or any Restricted Subsidiary) in connection with that lease unless: (i) the Issuer or any of its Restricted Subsidiaries would be entitled to incur Secured Debt on the Principal Property without equally and ratably securing the Notes pursuant to the covenant described in clause (a) above; or (ii) an amount equal to the greater of (x) the net proceeds from the sale of such Principal Property or (y) the Attributable Debt with respect to the sale and lease-back transaction is applied within 180 days of such sale to the voluntary retirement or prepayment of the Issuer’s or any Restricted Subsidiary’s long-term Debt which is senior to or equal with the Notes in right of payment or to the purchase or development of other property that will constitute Principal Property; or (iii) such sale and lease-back transaction is financed through an industrial revenue bond, industrial development bond, pollution control bond or similar financing arrangement between the Issuer or a Restricted Subsidiary and any federal, state or municipal government or other governmental body or quasi-governmental agency.

However, the Issuer and any of its Restricted Subsidiaries shall be able to enter into a sale and lease-back transaction without being required to apply the net proceeds or Attributable Debt as required above if, after giving effect to such transaction, including any concurrent repayment of Secured Debt, the sum of (A) the total amount of all Secured Debt with which the Notes are not at least equally and ratably secured and (B) the greater of the total net proceeds or Attributable Debt of all sale and lease-back transactions entered into after the date of the Indenture (other than as permitted by clause (b) of this Section 18), would not exceed 10% of Consolidated Net Tangible Assets at the end of the Issuer’s most recent fiscal quarter.

 

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  (c) Definitions. As used herein, the following terms shall have the respective meanings specified:

 

  (i) “Attributable Debt” means, with regard to a sale and lease-back transaction, the lesser of (A) the fair market value of the property subject thereto as determined in good faith by the Board of Directors or (B) the discounted present value of all net rentals under the lease. The discount rate used to determine the discounted present value will equal the weighted average rates of all securities then issued and outstanding under the Indenture.

 

  (ii) “Consolidated Net Tangible Assets” means total assets less the sum of total current liabilities and intangible assets, in each case as set forth on the most recent consolidated balance sheet of the Issuer and its consolidated Subsidiaries and computed in accordance with generally accepted accounting principles (“GAAP”) in the United States.

 

  (iii) “Debt” means, at any time, all obligations of the Issuer and each Restricted Subsidiary, to the extent such obligations would appear as a liability upon the consolidated balance sheet of the Issuer, in accordance with generally accepted accounting principles, (1) for borrowed money, (2) evidenced by bonds, debentures, notes or other similar instruments, and (3) in respect of any letters of credit supporting any Debt of others, and all guarantees by the Issuer or any Restricted Subsidiary of Debt of others.

 

  (iv) “Lien” means a mortgage, security interest, security agreement, pledge, lien, charge or any other encumbrance of any kind.

 

  (v) “Principal Property” means (1) Timberlands, and (2) any mill, converting plant, manufacturing plant or other facility owned on the date of the indenture or thereafter acquired by the Issuer or any Restricted Subsidiary that is located within the continental United States.

 

  (vi) “Restricted Subsidiary” means any direct or indirect domestic Subsidiary of the Issuer that owns any Principal Property.

 

  (vii)

“Secured Debt” means any Debt of the Issuer or any of its Restricted Subsidiaries that is secured by a Lien on any Principal Property or on any stock of, or on any Debt of, a Restricted Subsidiary. Secured Debt does not include Debt secured by: (a) Liens existing at the time of acquisition by the Issuer or any of its Restricted Subsidiaries on Principal Property or any stock of,

 

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  or on any Debt of, a Restricted Subsidiary, whether or not assumed; (b) Liens to secure Debt among the Issuer and/or one of its Restricted Subsidiaries or among Restricted Subsidiaries; (c) Liens of an entity existing at the time such entity is merged or consolidated with the Issuer or a Restricted Subsidiary; (d) Liens on shares of stock or on Debt or other assets of an entity existing at the time such entity becomes a Restricted Subsidiary; (e) Liens of an entity at the time of a sale or lease of the properties of such entity as an entirety or substantially as an entirety to the Issuer or a Restricted Subsidiary; (f) Liens on timberlands in connection with an arrangement under which the Issuer and/or one or more of its Restricted Subsidiaries are obligated to cut and pay for timber in order to provide the Lien holder with a specified amount of money, however determined; (g) Liens on property to secure all or part of the cost of acquiring, substantially repairing or altering, constructing, developing or substantially improving the property, or to secure all or part of such property; provided that the principal amount of Debt secured by each such Lien (i) was incurred concurrently with, or within 18 months of, such acquisition, repair, alteration, construction, development or improvement and (ii) does not exceed the cost to the Issuer or such Restricted Subsidiary of the property subject to the Lien, as determined in accordance with GAAP; and (h) Liens created or incurred in connection with an industrial revenue bond, industrial development bond, pollution control bond or similar financing arrangement between the Issuer or a Restricted Subsidiary and any federal, state or municipal government or other governmental body or quasi-governmental agency; (i) Liens for taxes, assessments or other governmental charges which are not yet due or payable without penalty that are being contested by the Issuer or a Restricted Subsidiary, and for which adequate reserves have been created; (j) Liens arising out of litigation or judgments being contested in good faith and by appropriate proceedings; (k) materialmen’s, mechanics’, workmen’s, repairmen’s, landlord’s Liens for rent or other similar Liens arising in the ordinary course of business in respect of obligations which are not overdue or which are being contested by the Issuer or any of its Restricted Subsidiaries in good faith and by appropriate proceedings; (l) Liens consisting of zoning restrictions, licenses, easements and restrictions on the use of real property and minor irregularities that do not materially impair the use of the real property; (m) Liens existing at the date of the Indenture; or (n) Liens constituting any extension, renewal or replacement of any Lien listed above to the extent the amount of the Lien is not increased.

 

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  (viii) “Timberlands” means any real property of the Issuer or any Restricted Subsidiary located within the continental United States which contains (or upon completion of a growth cycle then in process is expected to contain) standing timber of a commercial quantity and of merchantable quality, excluding, however, any such real property which at the time of determination is held primarily for development and not primarily for the production of timber.

 

  19. Guarantee . The Notes are guaranteed by the Guarantor as provided in Article XIII of the Indenture. The Guarantor’s guarantee of the Notes (the “Guarantee”) is an unsecured obligation of the Guarantor and ranks equally with other unsecured indebtedness of the Guarantor that is not subordinated to the Guarantee.

 

  20. Conversion and Exchange . The Notes shall not be convertible into or exchangeable into any other security.

 

  21. Further Issues . The Issuer may, without notice to or the consent of the holders of the Notes, create and issue additional debt securities ranking equally and ratably with the Notes in all respects and having the same terms as the Notes (other than issue date, and to the extent applicable, issue price, first date of interest accrual and first interest payment date of such debt securities), so that such additional debt securities shall be consolidated and form a single series with the Notes for all purposes, including voting.

 

  22. Other Terms . The Notes shall have the other terms and the Notes and the Guarantee shall be substantially in the forms set forth in
  Exhibit A hereto. In case of any conflict between this Annex A and the Notes, the forms of the Notes shall control.

Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture.

 

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Exhibit A

[-Exclude from Notes in definitive form-]

[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO PLUM CREEK TIMBERLANDS, L.P. (THE “ISSUER”) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE REGISTERED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.]

PLUM CREEK TIMBERLANDS, L.P.

3.25% Notes due 2023

 

CUSIP No. 72925PAD7     

ISIN No. US72925PAD78    

No. R-1

   $325,000,000

PLUM CREEK TIMBERLANDS, L.P., a limited partnership duly organized and existing under the laws of the State of Delaware (herein referred to as the “Issuer,” which term includes any successor thereof under the Indenture hereinafter referred to) for value received, hereby promises to pay to CEDE & CO. , or its registered assigns, the principal sum of THREE HUNDRED TWENTY FIVE MILLION DOLLARS ($325,000,000) on March 15, 2023 (the “Stated Maturity Date” with respect to the principal of this Note), unless previously redeemed or repurchased on any Redemption Date (as defined below) or Repurchase Date (as defined below), as the case may be, in accordance with the provisions set forth on the reverse hereof (the Stated Maturity Date or any Redemption Date or Repurchase Date is referred herein as the “Maturity Date” with respect to principal repayable on such date) and to pay interest thereon semiannually in arrears on March 15 and September 15 of each year, commencing on March 15, 2013 (each, an “Interest Payment Date”), at the rate of 3.25% per annum, until payment of said principal has been made or duly provided for. Interest on this Note payable on an Interest Payment Date will accrue from and including the immediately preceding Interest Payment Date to which interest has been paid or duly made available for payment, or from and including November 26, 2012 if no interest has been paid or duly made available for payment, to but excluding the applicable Interest Payment Date or the Maturity Date, as the case may be. Interest on this Note will be computed on the basis of a 360-day year consisting of twelve 30-day months.  

 

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Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to them in the Indenture (as defined on the reverse hereof).

The interest so payable and punctually paid or duly made available for payment on any Interest Payment Date will be paid to the Holder in which name this Note (or one or more predecessor Notes) is registered in the Security register at the close of business on the “Regular Record Date” for such payment, which shall be March 1 or September 1, as the case may be, immediately preceding such Interest Payment Date (regardless of whether such day is a Business Day (as defined below)). Any such interest not so punctually paid or duly made available for payment shall forthwith cease to be payable to the Holder on such Regular Record Date, and shall be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on a subsequent “Special Record Date” for the payment of such defaulted interest (which shall be not more than 5 Business Days prior to the date of the payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders of the Notes not less than 15 calendar days preceding such subsequent Special Record Date, or may be paid at any time in any other lawful manner, all as more fully provided in the Indenture.

The principal of, and premium, if any, with respect to, this Note payable on the Maturity Date will be paid against presentation and surrender of this Note at the office or agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York. The Issuer hereby initially designates the Corporate Trust Office of the Trustee (as defined on the reverse hereof) at 100 Wall Street, 16 th Floor, New York, New York 10004 as the office to be maintained by it where Notes may be presented for payment, registration of transfer or exchange and where

notices or demands to or upon the Issuer in respect of the Notes or the Indenture may be served.

If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the payment required to be made on such date will, instead, be made on the next Business Day with the same force and effect as if it were made on the date such payment was due, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or the Maturity Date, as the case may be.

“Business Day” means any day, other than a Saturday, a Sunday or other day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to be closed.

Payments of principal, premium, if any, and interest in respect of this Note will be made in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts (i) in the case of payments on the Maturity Date, in immediately available funds and (ii) in the case of payments of interest on an Interest Payment Date other than the Maturity Date, at the option of the Issuer, by check mailed to the Holder entitled thereto at the applicable address appearing in the Security register or by transfer of immediately available funds to an account maintained by the payee with a bank located in the United States of America; provided, however, that so long as Cede & Co. is the Holder of this Note, payments of interest on an Interest Payment Date may be made in immediately available funds.

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 entitled to the benefits of the Indenture or the Guarantee (as defined on the reverse of this Note) or be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been executed by manual signature by the Trustee.

 

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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed, manually or by facsimile by an authorized signatory.

Date: November 26, 2012

 

  PLUM CREEK TIMBERLANDS, L.P., as Issuer
By:   PLUM CREEK TIMBER I, L.L.C.,
  its General Partner

 

 

By:

  PLUM CREEK TIMBER COMPANY, INC.,
    its Sole Member

 

 

By:                                                                           

    Name:       
    Title:       

 

ATTEST:
By:  

 

  Assistant Secretary  

TRUSTEE’S CERTIFICATE OF AUTHENTICATION    

This is one of the Securities of the series designated herein, referred to in the within-mentioned Indenture.

 

  U.S. BANK NATIONAL ASSOCIATION,
  as Trustee

By:

 

 

  Authorized Signatory

 

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[FORM OF REVERSE OF NOTE]

PLUM CREEK TIMBERLANDS, L.P.

3.25% Note due 2023

This Note is one of a duly authorized issue of senior debt securities of the Issuer (hereinafter called the “Securities”) of the series hereinafter specified, all issued or to be issued under and pursuant to an Indenture, dated as of November 14, 2005 (the “Indenture”), duly executed and delivered by the Issuer and Plum Creek Timber Company, Inc., as guarantor (the “Guarantor”), to U.S. Bank National Association, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture with respect to the series of Securities of which this Note is a part), and reference is hereby made to the Indenture, and all modifications and amendments and indentures supplemental thereto relating to the Notes, made for a description of the rights, limitations of rights, obligations, duties, and immunities thereunder of the Trustee, the Issuer, the Guarantor and the Holders of the Notes and the terms upon which the Notes are authenticated and delivered. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may accrue interest (if any) at different rates or formulas and may otherwise vary as provided in the Indenture. This Note is one of a series of Securities designated as the “3.25% Notes due 2023” (collectively, the “Notes”) of the Issuer, limited (except as permitted under the Indenture) in aggregate principal amount to $325,000,000.

Payments of principal, premium, if any, and interest in respect of the Notes will be fully and unconditionally guaranteed by the Guarantor.

The Issuer may redeem this Note, at any time in whole or from time to time in part for cash, at the option of the Issuer, at a price equal to the sum of 100% of the aggregate principal amount of the Notes being redeemed, accrued but unpaid interest on those Notes to but excluding the date fixed for redemption (the “Redemption Date”), and, unless the Notes are redeemed on or after December 15, 2022, the Make-Whole Amount, if any, as defined below (the “Redemption Price”); provided , however , that interest installments due on an Interest Payment Date which is on or prior to the Redemption Date will be payable to the Holder hereof (or one or more predecessor Notes) as of the close of business on the Regular Record Date preceding such Interest Payment Date.

If notice has been given as provided in the Indenture and funds for the redemption of this Note or any part thereof called for redemption shall have been made available on the Redemption Date, this Note or such part thereof will cease to bear interest on the Redemption Date referred to in such notice and the only right of the Holder will be to receive payment of the Redemption Price. Notice of any optional redemption of any Notes will be given to the Holder hereof (in accordance with the provisions of the Indenture), not more than 60 nor less than 30 days prior to the Redemption Date. The notice of redemption will specify, among other things, the Redemption Date, the Redemption Price and the principal amount of Notes to be redeemed. In the event of redemption of this Note in part only, a new Note of like tenor for the unredeemed portion hereof and otherwise having the same terms and provisions as this Note shall be issued by the Issuer in the name of the Holder hereof upon the presentation and surrender hereof.

 

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Make-Whole Amount ” means, in connection with any optional redemption, the excess, if any, of (a) the aggregate present value as of the date of such redemption of each dollar of principal being redeemed and the amount of interest, exclusive of interest accrued to the Redemption Date, that would have been payable in respect of each such dollar if such redemption had not been made, determined by discounting, on a semi-annual basis (assuming a 360-day year of twelve 30-day months), such principal and interest at the Reinvestment Rate, determined on the third Business Day preceding the date notice of such redemption is given, from the respective dates on which such principal and interest would have been payable if such redemption had not been made, to the date of redemption, over (b) the aggregate principal amount of the Notes being redeemed.

Reinvestment Rate ” means 0.25% plus the arithmetic mean of the yields under the heading “Week Ending” published in the most recent Statistical Release under the caption “Treasury Constant Maturities” for the maturity, rounded to the nearest month, corresponding to the remaining life to maturity, as of the redemption date of the Notes being redeemed. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding each of such relevant periods to the nearest month. For the purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used. If the format or content of the Statistical Release changes in a manner that precludes determination of the Treasury yield in the above manner, then the Treasury yield shall be determined in the manner that most closely approximates the above manner, as reasonably determined by the Issuer.

Statistical Release ” means the statistical release designated “H.15(519)” or any successor publication which is published weekly by the Federal Reserve System and which reports yields on actively traded United States government securities adjusted to constant maturities, or, if such statistical release is not published at the time of any required determination under the indenture, then such other reasonably comparable index which shall be designated by the Issuer.

Upon the occurrence of a Change of Control Repurchase Event (as defined below), unless the Issuer has exercised its right to redeem all the Notes in accordance with the redemption terms as set forth herein, the Issuer shall be required to make an irrevocable offer to each Holder of Notes to repurchase all or any part (in integral multiples of $1,000, provided any remaining principal amount resulting from a partial redemption is at least $2,000) of such Holder’s Notes for cash at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of repurchase, subject to the rights of Holders of Notes on a Regular Record Date or Special Record Date, as applicable to receive interest due on the related Interest Payment Date.

Within 30 days following any Change of Control Repurchase Event or, at the Issuer’s option, prior to any Change of Control (as defined below), but after the public announcement of such Change of Control, the Issuer shall mail to each Holder of Notes, with a copy to the Trustee, a notice:

 

  (i) describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event;

 

  (ii) offering to repurchase all Notes tendered;

 

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  (iii) setting forth the payment date for the repurchase of the Notes (the “Repurchase Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed;

 

  (iv) if mailed prior to the date of consummation of the Change of Control, stating that the offer to repurchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the Repurchase Date;

 

  (v) disclosing that any Note not tendered for repurchase will continue to accrue interest; and

 

  (vi) specifying the procedures for tendering Notes.

The Issuer shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.

On the Repurchase Date in respect of a Change of Control Repurchase Event, the Issuer shall, to the extent lawful:

 

  (i) accept for payment all Notes or portions thereof properly tendered pursuant to such offer;

 

  (ii) deposit with the paying agent for the Notes (the “Paying Agent”), which shall initially be the Trustee, an amount equal to the aggregate repurchase price in respect of all Notes or portions thereof properly tendered; and

 

  (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate stating the aggregate principal amount of Notes being repurchased by the Issuer and that all conditions precedent to the repurchase offer and repurchase by the Issuer have been complied with.

The Issuer shall not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under its offer.

The Paying Agent will promptly mail to each Holder of Notes properly tendered the purchase price for such Notes, and the Trustee, upon the execution and delivery by the Issuer of such Notes, will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder of a Note tendered in part for repurchase a new Note equal in principal amount to any unrepurchased portion of such tendered Notes; provided that each new Note will be in a denomination of $2,000 and whole multiples of $1,000 in excess thereof.

 

A-1-6


 

 

Below Investment Grade Ratings Event ” means that on any day within the 60-day period (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by each of the Rating Agencies) after the earlier of (i) the occurrence of a Change of Control; and (ii) public notice of the occurrence of a Change of Control or the intention by the Issuer or the Guarantor to effect a Change of Control, the Notes are rated below Investment Grade by each of the Rating Agencies. Notwithstanding the foregoing, a Below Investment Grade Ratings Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Ratings Event for purposes of the definition of Change of Control Repurchase Event hereunder) if any of the Rating Agencies making the reduction in rating to which this definition would otherwise apply does not announce or publicly confirm or inform the Trustee in writing that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of such ratings event).

Capital Stock ” means ,with respect to any specified Person, any and all shares, interests, participations, or other equivalents (however designated, whether voting or non-voting), including partnership interests, whether general or limited, in the equity of such Person, whether outstanding on the date hereof or issued hereafter, including, without limitation, all common stock, preferred stock and units.

Change of Control ” means:

(i) any sale, lease, transfer or other conveyance (other than by way of merger or consolidation), whether direct or indirect, of all or substantially all of the assets of the Guarantor or the Issuer, on a consolidated basis, in one transaction or a series of related transactions, to any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) other than the Guarantor or one of its Subsidiaries;

(ii) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) other than the Guarantor or one of its Subsidiaries becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding Voting Stock of the Guarantor or the Issuer measured by voting power rather than number of shares or units; provided, however, that a transaction will not be deemed to involve a Change of Control if the Guarantor or the the Issuer becomes a wholly owned Subsidiary of a holding company and the holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Guarantor or the Issuer, as applicable, immediately prior to the transaction;

(iii) the Issuer or the Guarantor consolidates with, or merges with or into, any “person” (as such term is used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable), or any “person” consolidates with, or merges with or into, the Issuer or the Guarantor, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Issuer or the Guarantor, as the case may be, or such other “person” is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares or units of the Voting Stock of the Issuer or the Guarantor outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving “person” immediately after giving effect to such transaction;

 

A-1-7


 

 

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

(v) Plum Creek Timber I, L.L.C. (or a successor general partner that is a Subsidiary of the Guarantor) ceases to be a general partner of the Issuer or ceases to control the Issuer.

provided, however, that neither:

(x) the pro rata distribution by the Guarantor to its shareholders of Capital Stock of the Issuer or of any of the Guarantor’s other Subsidiaries; nor

(y) the replacement of Plum Creek Timber I, L.L.C. (or of a successor general partner) with a Subsidiary of the Guarantor as the general partner of the Issuer;

shall, in and of itself, constitute a Change of Control for purposes of this definition.

Change of Control Repurchase Event ” means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event.

Continuing Directors ” means, as of any date of determination, any member of the Guarantor’s Board of Directors who (1) was a member of such Board of Directors on the date the Notes were initially issued or (2) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the proxy statement of the Guarantor in which such member was named as a nominee for election as a director, without objection to such nomination).

Investment Grade ” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P), and the equivalent investment grade rating from any replacement rating agency or rating agencies selected by the Issuer under the circumstances permitting the Issuer to select a replacement rating agency and in the manner for selecting a replacement rating agency, in each case as set forth in the definition of “Rating Agencies.”.

Moody’s ” means Moody’s Investors Service, Inc. (or any successor).

Rating Agencies ” means each of Moody’s and S&P; provided, if either of Moody’s or S&P ceases to rate the notes or fails to make a rating of the Notes publicly available for reasons outside of the Issuer’s or the Guarantor’s control, the Issuer may appoint another “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act as a replacement agency for Moody’s or S&P, or both of them, as the case may be, provided that the Issuer delivers written notice of such appointment to the Trustee.

S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. (or any successor).

 

A-1-8


 

 

Voting Stock ” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such “person” that is at the time entitled to vote generally in the election of the board of directors, managers or trustees of such “person,” as applicable.

This Note is not mandatorily redeemable and is not entitled to the benefit of a sinking fund or any analogous provisions.

In case an Event of Default with respect to this Note shall have occurred and be continuing, the principal hereof may be (and, in certain cases, shall 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.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and, if applicable, the Guarantor, and the rights of the Holders of the Securities under the Indenture at any time by the Issuer and, if applicable, the Guarantor, and the Trustee with the consent of the Holders of a majority in the aggregate principal amount of Securities of all series issued under the Indenture at the time Outstanding and affected thereby. Furthermore, provisions in the Indenture permit the Holders of a majority in the aggregate principal amount of the Outstanding Securities of any series, in certain instances, to waive, on behalf of all of the Holders of Securities of such series, certain past defaults under the Indenture and their consequences. Any such waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and other Notes issued upon the registration of transfer hereof or in exchange hereof, or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

No reference herein to the Indenture and no provision of this Note or the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of, and premium, if any, with respect to, and interest on, this Note in the manner, at the respective times, at the rate and in the coin or currency herein prescribed.

This Note is issuable only in definitive registered form, without coupons, in denominations of $2,000 and integral multiples of $1,000 in excess thereof. This Note may be exchanged for a like aggregate principal amount of Notes of other authorized denominations at the office or agency of the Issuer in The City of New York, in the manner and subject to the limitations provided herein and in the Indenture, but without the payment of any charge except for any tax or other governmental charge imposed in connection therewith.

The Issuer shall not pay additional amounts on this Note held by a Person that is not a U.S. Person in respect of taxes or similar charges

withheld or deducted.

The Issuer, the Guarantor or the Trustee and any authorized agent of the Issuer, the Guarantor or the Trustee may deem and treat the Person in whose name this Note is registered as the Holder and 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 of, or premium, if any, with respect to, or subject to the provisions on the face hereof, interest on, this Note and for all other purposes, and none of the Issuer, the Guarantor or the Trustee or any authorized agent of the Issuer, the Guarantor or the Trustee shall be affected by any notice to the contrary.

 

A-1-9


 

 

THE INDENTURE AND THIS NOTE 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

INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

 

A-1-10


 

 

GUARANTEE

OF

PLUM CREEK TIMBER COMPANY, INC.

For value received, Plum Creek Timber Company, Inc., a corporation duly organized and existing under the laws of the State of Delaware (the “Guarantor”), hereby unconditionally guarantees to the Holder of the Note upon which this Guarantee is endorsed the due and punctual payment of the principal of, interest on, and premium, if any, required with respect to said Note, when and as the same shall become due and payable, whether on the Stated Maturity Date, by acceleration, redemption, repurchase or repayment or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of Plum Creek Timberlands, L.P. (the “Issuer,” which term includes any successor thereof under the Indenture) punctually to pay any such principal, interest, or premium, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether on the Stated Maturity Date, by acceleration, redemption, repurchase or repayment or otherwise, and as if such payment were made by the Issuer.

The obligations of the Guarantor to the Holders and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article XIII of the Indenture and reference is hereby made to such Indenture for the precise terms of this Guarantee.

The Guarantor hereby agrees that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute, irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of said Note or said Indenture, any failure to enforce the provisions of said Note or said Indenture, or any waiver, modification, consent or indulgence granted to the Issuer with respect thereto, by the Holder of said Note or the Trustee under said Indenture, the recovery of any judgment against the Issuer or any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to said Note or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, and interest on, and premium, if any, required with respect to, said Note and the complete performance of all other obligations contained in said Note.

The Guarantor shall be subrogated to all rights of the Holder of said Note against the Issuer in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided , however , that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, interest on, and premium, if any, required with respect to, all Notes of this series issued under said Indenture shall have been paid in full and its other obligations under said Indenture completed.

The Guarantor hereby certifies and warrants that all acts, conditions and things required to be done and performed and to have happened precedent to the creation and issuance of this Guarantee and to constitute the same the valid obligation of the Guarantor have been done and performed and have happened in due compliance with all applicable laws.

This Guarantee as endorsed on said Note shall not be entitled to any benefit under said Indenture or become valid or obligatory for any purpose until the certificate of authentication on said Note shall have been signed manually by or on behalf of the Trustee under said Indenture.

 

A-1-11


 

 

THE GUARANTEE AND THIS NOTE 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 INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

 

A-1-12


 

 

IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed, manually or by facsimile by an authorized signatory.     

Date: November 26, 2012    

 

  PLUM CREEK TIMBER COMPANY, INC.,
  as Guarantor
By:  

 

  Name:
  Title:

 

ATTEST:
By:  

 

  Assistant Secretary

 

A-1-13


 

 

ASSIGNMENT FORM

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

 

Please insert social security number or other identifying number of assignee:
Please print or type name and address (including zip code) of assignee:

the within Note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said Note of PLUM CREEK TIMBERLANDS, L.P. on the books of PLUM CREEK TIMBERLANDS, L.P., with full power of substitution in the premises.

 

Dated:   
Signature Guaranteed   
NOTICE: Signature must be guaranteed by an eligible    NOTICE: The signature to this Assignment must correspond
Guarantor Institution (banks, stockbrokers, savings and loan    with the name as written upon the face of the within Note in
associations and credit unions) with membership in an    every particular, without alteration or enlargement or any
approved signature guarantee medallion program pursuant to    change whatever.
Securities and Exchange Commission Rule 17Ad-15.   

 

A-1-14

Exhibit 10.1

ASSUMPTION AGREEMENT

This Assumption Agreement is dated as of January 21, 2016 (this “ Agreement ”) and is made by WEYERHAEUSER COMPANY, a Washington corporation (“ Successor Guarantor ”), in favor of SOUTHERN DIVERSIFIED TIMBER, LLC, a Delaware limited liability company, as lender (“ Lender ”) under that certain Credit Agreement and Guarantee, dated as of October 1, 2008 (as amended, restated, supplemented or otherwise modified, the “ Credit Agreement ”), by and among Lender, PLUM CREEK VENTURES I, LLC, a Delaware limited liability company, as borrower (“ Borrower ”) and PLUM CREEK TIMBER COMPANY, INC., a Delaware corporation, as guarantor (“ Original Guarantor ”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement.

RECITALS

WHEREAS, Original Guarantor guaranteed Lender’s obligations under the Credit Agreement in accordance with the terms, conditions and limitations set forth in Article VIII of the Credit Agreement;

WHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of November 6, 2015 between Original Guarantor and Successor Guarantor (the “ Merger Agreement ”), Original Guarantor has agreed to merge with and into Successor Guarantor, with Successor Guarantor as the surviving corporation (the “ Merger ”);

 

WHEREAS, pursuant to that certain Consent and Waiver Agreement dated as of January 21, 2016 (“ Consent and Waiver ”) by and among Borrower, Lender and Original Guarantor, Lender has agreed to, among other things, the assignment to Successor Guarantor of Original Guarantor’s obligations under Article VIII of the Credit Agreement and the consummation of the other transactions described in, or contemplated by, the Merger Agreement; and

WHEREAS, Successor Guarantor has agreed, effective immediately upon consummation of the Merger, to assume the obligations of Original Guarantor set forth in Article VIII of the Credit Agreement.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.         Assumption of the Guarantee . Effective immediately upon consummation of the Merger: (a) Successor Guarantor hereby assumes from Original Guarantor all of Original Guarantor’s obligations as set forth in the provisions of Article VIII of the Credit Agreement, other than the representation and warranty set forth in Section 8.05(a)(i) of the Credit Agreement; and (b) all references to “Guarantor” in the Credit Agreement, other than any such references in or with respect to Section 8.05(a)(i) of the Credit Agreement, shall henceforth be deemed references to Successor Guarantor.

2.         Representation and Warranty . Successor Guarantor represents and warrants to Lender that Successor Guarantor is a corporation duly incorporated, validly existing and in good standing under the Laws of Washington.

3.         No Other Changes; Ratification . Except as expressly modified or waived hereby and by the Consent and Waiver, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed.

 

1


4.         Entire Agreement . This Agreement, the Consent and Waiver and the Loan Documents represent the entire agreement by and among Lender, Borrower and Successor Guarantor with respect to the subject matter hereof and supersede all prior agreements, oral or written, between such parties with respect thereto. No claim of waiver, modification, consent, or acquiescence with respect to any provision of this Agreement shall be made against Lender, Borrower or Successor Guarantor, except on the basis of a written instrument executed by or on behalf of such party.

5.             GOVERNING LAW . THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

[Signature page follows]

 

2


IN WITNESS WHEREOF, Successor Guarantor has duly executed and delivered this Assumption Agreement as of the date first above written.

 

WEYERHAEUSER COMPANY
By   /s/ Devin W. Stockfish
  Name: Devin W. Stockfish
  Title:   SVP, General Counsel

 

3

Exhibit 10.2

$783,000,000

CREDIT AGREEMENT

AND GUARANTEE

by and among

PLUM CREEK VENTURES I, LLC,

as Borrower

PLUM CREEK TIMBER COMPANY, INC.

as Guarantor

and

SOUTHERN DIVERSIFIED TIMBER, LLC

as Lender

Dated as of October 1, 2008

 


      

 

TABLE OF CONTENTS

 

         Page  
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS      1   

1.01

  Defined Terms      1   

1.02

  Other Interpretive Provisions      4   

ARTICLE II. TERMS OF THE LOANS

     5   

2.01

  Loans      5   

2.02

  Repayment of the Loan      5   

2.03

  Interest.      5   

2.04

  Computation of Interest      5   

2.05

  Payments Generally      5   

ARTICLE III. CONDITIONS PRECEDENT

     6   

ARTICLE IV. REPRESENTATIONS AND WARRANTIES

     7   

4.01

  Existence, Qualification and Power; Compliance with Laws.      7   

4.02

  Authorization; No Contravention      8   

4.03

  Governmental Authorization; Other Consents      8   

4.04

  Binding Effect      8   

4.05

  Litigation      8   

4.06

  No Default      8   

4.07

  ERISA      8   

4.08

  Use of Proceeds      8   

4.09

  Indebtedness      8   

4.10

  Ownership of Property; Liens      8   

4.11

  Taxes      9   

4.12

  No Business Conducted      9   

4.13

  Subsidiaries; Equity Interests      9   

4.14

  Guarantorship Interest      9   

ARTICLE V. AFFIRMATIVE COVENANTS

     9   

5.01

  Notices      9   

5.02

  Preservation of Existence      9   

5.03

  Payment of the Loan and other Obligations      9   

5.04

  Compliance with Laws      10   

5.05

  Books and Records      10   

5.06

  Inspection Rights      10   

5.07

  Use of Proceeds      10   

5.08

  Reserve Account      10   

5.09

  Financial Statements      10   

ARTICLE VI. NEGATIVE COVENANTS

     11   

6.01

  Incurrence of Indebtedness      11   

6.02

  Liens      11   

6.03

  Fundamental Changes      11   

6.04

  Dispositions of Preferred Partnership Interests      12   

 


      

 

6.05

   Acquisitions      12   

6.06

   Contracts      12   

6.07

   Use of Proceeds      12   

6.08

   ERISA      12   

6.09

   Dividends      12   

ARTICLE VII. EVENTS OF DEFAULT AND REMEDIES

     12   

7.01

   Events of Default      12   

7.02

   Remedies Upon Event of Default      14   

7.03

   Application of Funds      14   

7.04

   Nonrecourse Obligation of the Borrower      14   

ARTICLE VIII. GUARANTEE

     15   

8.01

   The Guarantee      15   

8.02

   Obligations Unconditional      15   

8.03

   Reinstatement      16   

8.04

   Subrogation; Subordination      16   

8.05

   Representations and Warranties      16   

8.06

   Remedies      17   

8.07

   Instrument for the Payment of Money      17   

8.08

   Continuing Guarantee      18   

8.09

   General Limitation on Guarantee Obligations      18   

ARTICLE IX. MISCELLANEOUS

     18   

9.01

   Amendments, Etc.      18   

9.02

   Notices; Effectiveness; Electronic Communication.      18   

9.03

   No Waiver; Cumulative Remedies      18   

9.04

   Successors and Assigns      19   

9.05

   Treatment of Certain Information; Confidentiality      19   

9.06

   Counterparts; Integration; Effectiveness      20   

9.07

   Severability      20   

9.08

   Governing Law; Jurisdiction; Etc.      20   

9.09

   Waiver of Jury Trial      21   
EXHIBITS   
Exhibit A             Form of Note   

 

 


      

 

CREDIT AGREEMENT AND GUARANTEE

This CREDIT AGREEMENT AND GUARANTEE (this “ Agreement ”) is entered into as of October 1, 2008, by and among PLUM CREEK VENTURES I, LLC, a Delaware limited liability company (the “ Borrower ”), PLUM CREEK TIMBER COMPANY, INC., a Delaware corporation (the “ Guarantor ”) and Southern Diversified Timber, LLC (the “Lender”).

The Borrower has requested that the Lender provide a loan, provided that the Borrower’s liability in respect thereof is limited to its interests in certain collateral pledged to the Lender pursuant to the Pledge Agreement (as defined below), and the Lender is willing to do so on the terms and conditions set forth herein.

The Lender has requested that the Guarantor provide a guarantee of Borrower’s obligations under this Agreement and Guarantor is willing to do so on the terms and conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS

1.01 Defined Terms . As used in this Agreement, the following terms shall have the meanings set forth below:

Affiliate Credit Agreement ” shall mean the Credit Agreement dated as of June 29, 2006, among Plum Creek Timberlands, L.P., each lender from time to time party thereto and Bank of America, N.A., as administrative agent, as amended, amended and restated, extended, supplemented or otherwise modified in writing from time to time, and any revolving credit facility that replaces or refunds such Credit Agreement.

Agreement ” means this Credit Agreement and Guarantee.

Bankruptcy Code ” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq .).

Borrower ” has the meaning specified in the introductory paragraph hereto.

Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state of New York.

Closing Date ” means the first date all the conditions precedent in Article III are satisfied or waived.

Debtor Relief Laws ” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 


      

 

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

Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

ERISA ” means the Employee Retirement Income Security Act of 1974.

Event of Default ” has the meaning specified in Section 7.01 .

GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Guaranteed Obligations ” has the meaning specified in Section 8.01 .

Guarantee ” means the guarantee issued pursuant to Article VIII by the Guarantor.

Guarantor ” means Plum Creek Timber Company, Inc., a Delaware corporation, in its capacity as guarantor of the Loan, and/or its capacity as the sole member of the Borrower, as the context requires.

Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations for borrowed money and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b) all direct or contingent obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

(c) all obligations to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);

 

-2-


      

 

(d) all capital leases; and

(e) all guarantees in respect of any of the foregoing.

Information ” has the meaning specified in Section 9.05 .

Interest Payment Date ” means each November 15, February 15, May 15 or August 15, as applicable, following the last date interest was paid, or, in the case of the first Interest Payment Date, following the Closing Date; provided that if any Interest Payment Date shall occur on a day other than a Business Day then such Interest Payment Date shall be deemed to occur on the next following Business Day; and provided further that the Interest Payment Date scheduled for February 17, 2009 shall instead occur on March 10, 2009.

Interest Rate ” means a rate of interest equal to 7.375% per annum.

Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

Lender ” has the meaning specified in the introductory paragraph hereto.

Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever but not including the interest of a lessor under an operating lease.

Loan ” has the meaning specified in Section 2.01 .

Loan Documents ” means this Agreement, the Note, the Pledge Agreement and all other documents delivered to the Lender in connection herewith or therewith.

Maturity Date ” means October 1, 2018, or such later date as may be extended by the Borrower pursuant to Section 2.02 ; provided , however , that if such date is not a Business Day, the Maturity Date shall be the preceding Business Day.

Note ” means the promissory note made by the Borrower in favor of the Lender evidencing the Loan, substantially in the form of Exhibit A .

Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA).

 

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Pledge Agreement ” means the Pledge Agreement entered into by Borrower and Lender as of the date hereof.

Pledged Interest ” has the meaning specified in the Pledge Agreement.

Preferred Partnership Interests ” means the preferred partnership interests in Plum Creek Timberlands, L.P., a Delaware limited partnership, held by Borrower and included in the collateral subject to the Pledge Agreement.

Reserve Account ” has the meaning specified in Section 5.08 .

Responsible Officer ” means, with respect to the Borrower or the Guarantor, the chief executive officer, the president or any vice president, or any other officer thereof having substantially the same authority and responsibility.

1.02 Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “without limitation.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any organization document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “ herein ,” “ hereof ” and “ hereunder ,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time.

(b) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

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ARTICLE II.

TERMS OF THE LOANS

2.01 Loans . Subject to the terms and conditions set forth herein, on the Closing Date, the Lender agrees to make a loan (the “Loan”) to the Borrower in a single drawdown in an amount equal to $783,000,000. The Loan shall be evidenced by the Note.

2.02 Repayment of the Loan. The Borrower shall repay to the Lender on the Maturity Date the aggregate principal amount of the Loan outstanding on such date, together with accrued interest; provided that, so long as no Default or Event of Default has occurred and is continuing, the Borrower shall be permitted to extend the initial Maturity Date for a period of two (2) years by providing written notice of such election to extend the Maturity Date to the Lender at any time within one year prior to the initial Maturity Date. The Borrower shall not be entitled to repay, and Lender shall not be required to accept any repayment of, the principal amount of the Loan prior to the Maturity Date.

2.03 Interest.

(a) Subject to clause (b) below, the Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the Interest Rate. Interest on the Loan shall be due and payable in arrears on each Interest Payment Date and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

(b) If any amount payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods) (a “Defaulted Payment”), whether at stated maturity, by acceleration or otherwise, then the outstanding principal amount of the Loan shall thereafter, until such Defaulted Payment is paid in full, bear interest at an interest rate equal to the Interest Rate plus two percent (2%) to the fullest extent permitted by applicable Laws.

2.04 Computation of Interest All computations of interest for the Loan shall be made on the basis of a year of 360 days consisting of twelve 30 day months. Interest shall accrue on the Loan for the day on which it is made, and shall not accrue on the Loan, or any portion thereof, for the day on which the Loan or such portion is paid.

2.05 Payments Generally. All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Lender, by wire transfer to the bank account specified by Lender, in immediately available funds not later than 2:00 p.m. Seattle time on the date specified herein. All payments received by the Lender after 2:00 p.m. Seattle time shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall not be reflected in computing interest or fees, as the case may be.

 

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ARTICLE III.

CONDITIONS PRECEDENT

(a) The obligation of the Lender to make the Loan hereunder on the Closing Date is subject to the Lender’s receipt of the following, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Lender:

(i) Loan Documents

(A) Agreement . Executed counterparts of this Agreement;

(B) Note . The Note executed by the Borrower in favor of the Lender;

(ii) Resolutions; Incumbency .

(A) Resolutions . Copies of the written consent of the Guarantor, approving and authorizing the execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents to which the Borrower is a party to be delivered hereunder, and evidence of the authority of the Guarantor to enter into, deliver and perform the Guarantee;

(B) Incumbency . A certificate of the Secretary or Assistant Secretary of the Guarantor certifying the names and true signatures of the duly authorized officers of the Guarantor, in its individual capacity and as the sole member of the Borrower, authorized to execute, deliver and perform, as applicable, this Agreement and the other Loan Documents;

(iii) Organizational Documents and Good Standing . Each of the following documents:

(A) The certificate of formation of the Borrower and the certificate of incorporation of the Guarantor, certified by the Secretary of State or similar, applicable Governmental Authority of the state of formation or incorporation, as the case may be, of such Persons, and by the Secretary or Assistant Secretary of the Guarantor, and a certificate of the Secretary or Assistant Secretary of the Guarantor attaching copies of the organization documents of each of the Borrower and the Guarantor and certifying that such organization documents are true, correct, and complete as of the Closing Date; and

(B) A good standing certificate for the Borrower and the Guarantor from the Secretary of State (or similar, applicable Governmental Authority) of its state of incorporation or formation, as the case may be;

(iv) Legal Opinions . A favorable opinion of José Quintana, Assistant General Counsel of the Guarantor, acting as counsel to the

Borrower, regarding the matters set forth in Sections 4.01(a)(i) , 4.01(a)(ii) , 4.01(b) , 4.02 , 4.03 , 4.05 and 4.14 ;

 

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(v) Certificates . A certificate of a Responsible Officer of the Borrower and the Guarantor certifying that:

(A) The representations and warranties of the Borrower and the Guarantor contained in Article IV and Article VIII , respectively, or any other Loan Document, are true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date;

(B) No Default exists, or would result from the borrowing of the Loan or from the application of the proceeds thereof;

(vi) Pledge Agreement . An executed counterpart of the Pledge Agreement and evidence that all financing statements contemplated thereunder shall have been delivered for filing in the applicable jurisdiction(s).

(vii) Partnership Agreement . A true and correct copy of the partnership agreement of Plum Creek Timberlands, L.P., which shall include terms reasonably satisfactory to the Lender regarding Lender’s eligibility to be a limited partner of Plum Creek Timberlands, L.P.

(viii) Other Documents and Materials . Such other assurances, certificates, documents, approvals, consents, materials or opinions as the Lender reasonably may require.

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants to the Lender that:

4.01 Existence, Qualification and Power; Compliance with Laws .

(a) The Borrower:

(i) is a limited liability company duly formed, validly existing and in good standing under the Laws of Delaware;

(ii) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership of properties or the conduct of its business requires such qualification or license; and

(iii) is and will engage solely in the business of owning the Preferred Partnership Interests.

(b) The Borrower has full power and authority and the legal right to own the Preferred Partnership Interests, to perform this Agreement and any other Loan Document and to take all actions necessary to complete the transactions contemplated by this Agreement and any such other Loan Document. The Borrower has taken all necessary action to authorize the transactions contemplated hereby on the terms and conditions of this Agreement and any other Loan Document, and to authorize the execution, delivery and performance of this Agreement and any other Loan Document.

 

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4.02 Authorization; No Contravention . The execution, delivery, and performance of this Agreement and the other Loan Documents will not violate any Law applicable to, or any contractual obligation of, the Borrower. The execution, delivery, and performance of this Agreement and the other Loan Documents will not result in, or require the creation or imposition of any Lien on any of the properties or revenues of the Borrower pursuant to any Law or contractual obligation, except for the Liens created or permitted by the Pledge Agreement.

4.03 Governmental Authorization; Other Consents . No consents or approvals are required to be obtained by the Borrower from any Governmental Authority or other Person in connection with the execution, delivery and performance of this Agreement and the other Loan Documents or the taking of any action by the Borrower contemplated hereby or thereby.

4.04 Binding Effect . This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by the Borrower. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditor’s rights generally or by equitable principles relating to enforceability.

4.05 Litigation . No litigation or proceeding of or before any arbitrator or Governmental Authority is pending, and no such litigation or proceeding is, to the knowledge of the Borrower, threatened and no investigation by any Governmental Authority is, to the knowledge of the Borrower, pending or threatened, against or in a manner affecting the Borrower, or against or in a manner affecting any of its properties, rights, revenues or assets.

4.06 No Default . No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document or would result from the incurring of the Loan by the Borrower.

4.07 ERISA . The Borrower does not maintain and is not a party to or obligated under any Plan.

4.08 Use of Proceeds . The proceeds of the Loan are intended to be and shall be used solely for the purposes set forth in and permitted by Section 5.07 .

4.09 Indebtedness . The Borrower has no Indebtedness and is not subject to any contractual obligations except with respect to its organizational documents, the Preferred Partnership Interests, this Agreement, the Pledge Agreement and the other Loan Documents.

4.10 Ownership of Property; Liens . The Borrower owns no real or personal property except the Preferred Partnership Interests. The Preferred Partnership Interests are not subject to any Liens other than the Lien created pursuant to the Pledge Agreement.

 

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4.11 Taxes . The Borrower has filed all Federal, state and other material tax returns and reports required to be filed, and has paid all Federal, material state and other material taxes, assessments, fees and other governmental charges levied or imposed upon it or its Properties, income or assets otherwise due and payable.

4.12 No Business Conducted . The Borrower has not conducted any business or acquired any property other than the acquisition and ownership of the Preferred Partnership Interests and the rights related thereto.

4.13 Subsidiaries; Equity Interests . The Borrower has no Subsidiaries and has no equity investments in any other corporation or entity other than Plum Creek Timberlands, L.P., which is a disregarded entity for federal income tax purposes.

4.14 Guarantorship Interest . The sole member of the Borrower is the Guarantor, which as of the Closing Date will own 100% of the limited liability company membership interests in the Borrower.

ARTICLE V.

AFFIRMATIVE COVENANTS

So long as the Loan shall remain unpaid or unsatisfied, the Borrower and the Guarantor shall:

5.01 Notices . Promptly notify the Lender:

(a) of the occurrence of any Default, or (ii) of the occurrence or existence of any event or circumstance that foreseeably will become a Default; and

(b) of the commencement of, or any material development in, any material litigation or proceeding affecting the Borrower or Guarantor; provided that the requirements of this subsection (b) shall be satisfied by the filing of any such information with the Securities and Exchange Commission in the Guarantor’s Form 10-Q or 10-K, as the case may be.

5.02 Preservation of Existence Except as permitted by Section 6.03 :

(a) preserve and maintain in full force and effect its corporate or limited liability company existence (as the case may be) and good standing under the Laws of its state or jurisdiction of formation, organization or incorporation; and

(b) preserve and maintain in full force and effect all rights, privileges, qualifications, permits, licenses and franchises necessary in the normal conduct of its business.

5.03 Payment of the Loan and other Obligations . Pay and discharge as the same shall become due and payable, all obligations and liabilities in the case of the Borrower or all material obligations and liabilities in the case of the Guarantor, including:

(a) all tax liabilities, assessments and governmental charges or levies upon it or its assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower; and

 

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(b) all Indebtedness (or, in the case of Guarantor, material Indebtedness), as and when due and payable.

5.04 Compliance with Laws . Comply in all material respects with all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) any such Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a material adverse effect on the ability of the Borrower or Guarantor to perform its obligations under the Loan Documents or on the value of the Lender’s interest in the Preferred Partnership Interests under the Pledge Agreement.

5.05 Books and Records. Maintain proper books of record and account, in which full, true and correct entries shall be made of all material financial transactions and matters involving the assets and business of the Borrower or the Guarantor (as the case may be).

5.06 Inspection Rights. Permit representatives and independent contractors of the Lender to examine its corporate, financial and operating records, and, subject to Section 9.05 , make copies thereof or abstracts therefrom, at the expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided , however , that when an Event of Default exists the Lender (or any of its representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice.

5.07 Use of Proceeds. In the case of Borrower, use the proceeds of the Loan to make a capital contribution to Plum Creek Timberlands, L.P. in exchange for Preferred Partnership Interests.

5.08 Reserve Account. In the case of Borrower, deposit all cash received by the Borrower and not applied towards payments on the Loan into an account (the “Reserve Account”) until such time as the amounts on deposit in the Reserve Account shall equal the interest payments due on the Loan for the next two Interest Payment Dates; provided that if at any time amounts on deposit in the Reserve Account shall subsequently be less than the interest payments due on the next two Interest Payment Dates, the obligation to deposit amounts to the Reserve Account shall resume until such required amounts in the Reserve Account are again established. Notwithstanding the foregoing in this Section 5.08 , the Borrower shall not be required to fund the Reserve Account other than out of and to the extent of excess cash flow received on the Preferred Partnership Interests.

5.09 Financial Statements. Deliver to Lender:

(a) In the case of the Borrower, as soon as available, but not later than 90 days after the end of each fiscal year, a copy of the unaudited consolidated balance sheet of the Borrower as at the end of such year and the related consolidated statements of income or operations and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP;

 

 

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(b) In the case of the Guarantor:

(i) as soon as available, but not later than 90 days after the end of each fiscal year, a copy of the audited consolidated balance sheet of the Guarantor as at the end of such year and the related consolidated statements of income or operations and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by the opinion of a nationally-recognized independent public accounting firm, which report and opinion shall be prepared in accordance with generally accepted auditing standards and applicable securities laws;

(ii) as soon as available, but not later than 45 days after the end of each of the first three fiscal quarters of each year, a copy of the unaudited consolidated balance sheet of the Guarantor and its consolidated subsidiaries as of the end of such quarter and the related consolidated statements of income and statement of cash flows for the period commencing on the first day and ending on the last day of such quarter, and certified by the chief executive officer, chief financial officer, treasurer or controller of the Guarantor as being complete and correct and fairly presenting, in accordance with GAAP (subject only to normal year-end audit adjustments and the absence of footnotes), the financial position and the results of operations of the Guarantor and its subsidiaries;

provided that the requirements of this subsection (b) shall be satisfied by the filing of such information with the Securities and Exchange Commission in the Guarantor’s Form 10-Q or 10-K, as the case may be.

ARTICLE VI.

NEGATIVE COVENANTS

So long as the Loan shall remain unpaid or unsatisfied, the Borrower shall not directly or indirectly:

6.01 Incurrence of Indebtedness . Incur any Indebtedness other than the Loan.

6.02 Liens . Make, create, incur, assume or suffer to exist any Lien upon or with respect to any part of its property, whether now owned or hereafter acquired, other than the following:

(a) Liens for taxes, fees, assessments or other governmental charges which are not delinquent or remain payable without penalty; and

(b) the Lien created pursuant to the Pledge Agreement.

6.03 Fundamental Changes . Merge, dissolve, liquidate, consolidate with or into another Person, except that, so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with the Guarantor; provided that the Guarantor assumes the obligations of Borrower under this Agreement and confirms that it holds the Preferred Partnership Interests subject to the security interest granted pursuant to the Pledge Agreement.

 

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6.04 Dispositions of Preferred Partnership Interests . Make any Disposition of the Preferred Partnership Interests or enter into any agreement to make any Disposition of the Preferred Partnership Interests, except in connection with a transaction permitted under Section 6.03.

6.05 Acquisitions . Acquire any assets or property, other than additional Preferred Partnership Interests or any property or assets received by the Borrower as a distribution on the Preferred Partnership Interests.

6.06 Contracts . Directly or indirectly enter into any contracts or other agreements, with any Person, other than this Agreement, the acquisition of the Preferred Partnership Interests and as reasonably related to the ownership of the Preferred Partnership Interests, including the exercise of any rights thereunder.

6.07 Use of Proceeds . Use the proceeds of the Loan, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

6.08 ERISA . Enter into or become a party to any Plan.

6.09 Dividends . Declare or make, directly or indirectly, any dividend or distribution (whether in cash or other property) with respect to any membership interest, purchase, redeem, retire, acquire, cancel or terminate any such membership interest (for cash or other property), or incur any obligation (contingent or otherwise) to do so; provided that the Borrower may make cash distributions with respect to any membership interest so long as at the time of such distribution: (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) all amounts required to be deposited in the Reserve Account pursuant to Section 5.08 shall have been funded in full.

ARTICLE VII.

EVENTS OF DEFAULT AND REMEDIES

7 .01 Events of Default . Any of the following shall constitute an Event of Default:

(a) Non-Payment . The Borrower fails to pay (i) when and as required to be paid herein, any principal of the Loan, or (ii) interest on the Loan on two consecutive Interest Payment Dates.

(b) Representations and Warranties . Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or the Guarantor herein or in any other Loan Document or therewith shall be incorrect or misleading in any material respect when made or deemed made; or

 

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(c) Specific Covenants . The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 5.02 or Article VI ; or

(d) Other Defaults . The Borrower or the Guarantor fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (c)) contained in any Loan Document on its part to be performed or observed and such failure continues for 20 days after the earlier of (i) the date upon which a Responsible Officer knew or should have known of such failure or (ii) the date upon which written notice thereof is given to the Borrower by the Lender; or

(e) Insolvency Proceedings, Etc . The Borrower or the Guarantor institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or in connection with any insolvency proceeding applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or

(f) Inability to Pay Debts; Attachment . (i) The Borrower or the Guarantor becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or

(g) Impairment of Certain Documents . Any of the Loan Documents shall terminate, cease to be in full force and effect, or cease in whole or in part to be the legally valid, binding, and enforceable obligation of the Borrower, or any Person acting for or on behalf of the Borrower contests in any manner the validity, binding effect or enforceability of any of the Loan Documents, or the Borrower denies that it has any or further liability or obligation under any Loan Document, or the Borrower purports to revoke, terminate or rescind any Loan Document; or

(h) Cross Acceleration . An “Event of Default” under and as defined in the Affiliate Credit Agreement shall have occurred and be continuing and the holders of the Indebtedness thereunder shall have declared such Indebtedness to be immediately due and payable.

(i) Cross Default and Foreclosure . An “Event of Default” under and as defined in any document governing indebtedness secured by preferred partnership interests in Plum Creek Timberlands, L.P., a Delaware limited partnership (the “ Partnership ”), of a series other than that of the Preferred Partnership Interests, shall have occurred and be continuing and the holder of such indebtedness shall have commenced foreclosure proceedings with respect to such other preferred partnership interests in Plum Creek Timberlands, L.P. in accordance with the terms of the documents governing such other indebtedness.

 

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(j) Material Breach of Other Preferred Interests . In the case of any preferred limited partnership interests not described in and subject to the terms of Section 7.01(i), a material breach by the Partnership of its obligations with respect to such preferred limited partnership interest as specified in the documents governing the terms thereof.

(k) Amendment of Partnership Agreement . The partnership agreement of Plum Creek Timberlands, L.P. shall have been amended in violation of Section 3.10 of the Pledge Agreement or shall have been amended such that the representation set forth in Section 3.10 of the Pledge Agreement is no longer true in all material respects.

7.02 Remedies Upon Event of Default . If any Event of Default occurs and is continuing, the Lender may take any or all of the following actions:

(a) declare the unpaid principal amount of the Loan, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; and

(b) exercise all rights and remedies available to it under the Loan Documents;

provided , however , that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, without further act of the Lender; and provided ; further ; that notwithstanding the foregoing, other than in the case of an Event of Default under Section 7.01(a)(ii), the Lender shall not complete the foreclosure of any property pledged under the Pledge Agreement prior to the date that is six months from the date the Lender first gave notice of such Event of Default to Borrower.

7.03 Application of Funds . After the exercise of remedies provided for in Section 7.02 (or after the Loan has automatically become immediately due and payable as set forth in the proviso to Section 7.02 ), any amounts received on account of the Loan shall be applied by the Lender in the following order:

First , to payment of that portion of the Loan constituting unpaid principal of the Loan;

Second , to payment of that portion of the Loan constituting accrued and unpaid interest on the Loan; and

Last , the balance, if any, after all of the amounts under First and Second have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.

7.04 Nonrecourse Obligation of the Borrower . Notwithstanding anything in this Agreement or any other Loan Document to the contrary and except as otherwise provided in this Section 7.04 , the liability of the Borrower under the Loan Documents is limited to the Pledged Interest (as defined in the Pledge Agreement), provided that the Lender shall have full recourse against the Borrower and the Borrower shall be liable for the full payment of (a) the amount of any income, proceeds or profits of the Pledged Interest and any funds constituting a part of the

 

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Pledged Interest that are, at the time of receipt, required for the payment of amounts that are then due and payable under the Loan Documents and that are not so used, (b) the amount of any loss suffered by the Lender as a result of misrepresentations or fraud by or on behalf of the Borrower in connection with this Agreement or the other Loan Documents, (c) the amount of any loss suffered by the Lender as a result of any transfer of the Pledged Interest or as a result of any attempt by or on behalf of the Borrower to hinder, delay or defeat the Lender’s realization on the Pledge Agreement following an event of default thereunder (including without limitation the filing of any bankruptcy or insolvency proceeding or action to enjoin foreclosure), (d) interest on the amounts described in the foregoing clauses (a) through (c) at the Interest Rate and (e) attorneys’ fees and other costs incurred by the Lender in collecting any of the amounts described in the foregoing clauses (a) through (d).

ARTICLE VIII.

GUARANTEE

8.01 The Guarantee . The Guarantor hereby guarantees, as a primary obligor and not as a surety to the Lender and its respective successors and assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code) on the Loan, in each case remaining unpaid and owing following the exercise of all rights and remedies of the Lender against the Borrower under this Agreement and the Pledge Agreement, including completion of realization or foreclosure proceedings against the Pledged Interest (such obligations being herein collectively called the “ Guaranteed Obligations ”). The Guarantor hereby agrees that if the Borrower shall fail to pay in full when due any of the Guaranteed Obligations, the Guarantor will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due in accordance with the terms of such extension or renewal.

8.02 Obligations Unconditional . The obligations of the Guarantor under Section 8.01 , to the fullest extent permitted by applicable Law, are absolute, irrevocable and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Borrower under this Agreement, the Note or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (except for payment in full). Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantor hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:

 

  i. at any time or from time to time, without notice to the Guarantor, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;

 

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  ii. except as provided in Section 8.01 or Section 8.06 , any of the acts mentioned in any of the provisions of this Agreement, the Note or the Pledge Agreement, or any other agreement or instrument referred to herein or therein shall be done or omitted;

 

  iii. the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect, or any right under the Loan Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with; or

 

  iv. any Lien or security interest granted to, or in favor of, the Lender as security for any of the Guaranteed Obligations shall fail to be perfected.

The Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever. The Guarantor waives any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Lender upon this Guarantee or acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between the Borrower and the Lender shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Lender, and its successors and assigns.

8.03 Reinstatement . The obligations of the Guarantor under this Article VIII shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

8.04 Subrogation; Subordination . The Guarantor hereby agrees that until the indefeasible payment and satisfaction in full in cash of all Guaranteed Obligations it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 8.01 , whether by subrogation or otherwise, against the Borrower or any security for any of the Guaranteed Obligations

8.05 Representations and Warranties . The Guarantor represents and warrants to the Lender that:

(a) The Guarantor:

(i) is a corporation duly incorporated, validly existing and in good standing under the Laws of Delaware; and

 

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(ii) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of

properties or the conduct of its business requires such qualification or license.

(b) The Guarantor has full power and authority, to conduct its business as now conducted and as proposed to be conducted by it, to perform its obligations under this Article VIII and to take all actions necessary to complete the transactions contemplated by this Article VIII. The Guarantor has taken all necessary action to authorize the transactions contemplated hereby on the terms and conditions of this Agreement, and to authorize the execution, delivery and performance of this Agreement.

(c) This Agreement has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by limitation upon the availability of equitable remedies.

(d) The execution, delivery, and performance of this Agreement will not violate any Law applicable to, or any contractual obligation of, the Guarantor. The execution, delivery, and performance of this Agreement by the Guarantor will not result in, or require the creation or imposition of any Lien on any of the properties or revenues of the Guarantor pursuant to any applicable Laws or contractual obligation. No approvals or consents of any trustee or any holder of any Indebtedness of the Guarantor are required in connection with the Guarantor’s execution, delivery, and performance of this Agreement, except such approvals or consents as have been duly obtained and are in full force and effect.

(e) No consents or approvals are required to be obtained by the Guarantor from any Governmental Authority or other Person in connection with the performance of the execution, delivery and performance of this Article VIII or the taking of any action by the Guarantor contemplated hereby or thereby.

8.06 Remedies . Notwithstanding anything in this Article VIII or any other provision of the Loan Documents to the contrary, (i) the Lender shall not be entitled to exercise any remedies hereunder unless and until the Lender has fully exhausted all remedies available against the Borrower and the Pledged Interest, including foreclosing its interest in or otherwise realizing upon the Pledged Interest and (ii) in the event the Lender obtains a judgment against the Guarantor to enforce the payment obligations of the Guarantor hereunder, the Lender agrees that it shall only be entitled to satisfy such judgment against the partnership interests in Plum Creek Timberlands, L.P. owned by the Guarantor at such time and the Lender shall not be entitled to enforce such judgment against any other assets of the Guarantor now owned or hereafter acquired.

8.07 Instrument for the Payment of Money . The Guarantor hereby acknowledges that the guarantee in this Article VIII constitutes an instrument for the payment of money, and consents and agrees that the Lender, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.

 

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8.08 Continuing Guarantee . The guarantee in this Article VIII is a continuing guarantee, and shall apply to all Guaranteed Obligations whenever arising.

8.09 General Limitation on Guarantee Obligations . In any action or proceeding involving any Law, including applicable state, federal or foreign bankruptcy, insolvency, reorganization or other Law affecting the rights of creditors generally, if the obligations of the Guarantor under Section 8.01 would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 8.01 , then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by the Guarantor, the Lender or any other person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.

ARTICLE IX.

MISCELLANEOUS

9.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower therefrom, shall be effective unless in writing signed by the Lender, the Borrower and the Guarantor and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

9.02 Notices; Effectiveness; Electronic Communication .

(a) Notices Generally . All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier at the address set forth on Schedule 9.02 .

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).

(b) Change of Address, Etc . Each of the Borrower, the Guarantor and the Lender may change its address or telecopier number for notices and other communications hereunder by notice to the other parties hereto.

9.03 No Waiver; Cumulative Remedies . No failure by the Lender to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

 

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9.04 Successors and Assigns . The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby. Notwithstanding the foregoing, neither party may assign its rights and obligations under this Agreement other than with the written consent of the other party, except following an Event of Default (as defined herein) as provided in Section 9.7(b)(i) of the limited liability company agreement of the Lender.

9.05 Treatment of Certain Information; Confidentiality . The Lender agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its affiliates and to its and its affiliates’ respective partners, directors, officers, employees, agents, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) with the consent of the Borrower and the Guarantor or (g) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Lender or any of its respective affiliates on a nonconfidential basis from a source other than the Borrower or the Guarantor.

Notwithstanding any other provision of this Agreement, to comply with Treasury Regulations Section 1.6011-4(b)(3)(i) , each party (and any employee, representative, or other agent of such party) may disclose to any and all persons, without limitation of any kind, the U.S. federal income tax treatment and tax structure of the transactions contemplated by this Agreement and the Pledge Agreement. For purposes of the preceding sentence, tax treatment and tax structure shall not include (i) the name of, or any other identifying information regarding, the Borrower, the Lender, the Guarantor, the Preferred Partnership Interests, or any investment or transaction entered into by the Borrower, and any information regarding the specific economic terms of the transactions contemplated by this Agreement and the Pledge Agreement, (ii) any performance information relating to the Preferred Partnership Interests or the Borrower, or (iii) any performance or other information relating to the Lender or the Guarantor. In addition, either party may make such filings or disclosures as are required by state or federal securities laws.

For purposes of this Section, “ Information ” means all information received from the Borrower or the Guarantor relating to the Borrower or the Guarantor, other than any such information that is available to the Lender on a nonconfidential basis prior to such disclosure. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

The Lender acknowledges that (a) the Information may include material non-public information concerning the Borrower, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including Federal and state securities Laws.

 

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9.06 Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.

9.07 Severability . If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

9.08 Governing Law; Jurisdiction; Etc.

(a) GOVERNING LAW . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

(b) SUBMISSION TO JURISDICTION . THE BORROWER AND GUARANTOR EACH IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR THE GUARANTOR OR THEIR PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c) WAIVER OF VENUE . EACH OF THE BORROWER AND GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR

 

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HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d) SERVICE OF PROCESS . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.02 . NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

9.09 Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN

DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

[Remainder of Page Intentionally Left Blank]

 

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

 

BORROWER:
PLUM CREEK VENTURES I, LLC,
a Delaware limited liability company
By: PLUM CREEK TIMBER COMPANY, INC.,
Its sole member
By:  

/s/ Joan K. Fitzmaurice

Name:   Joan K. Fitzmaurice
Title:   Vice President, Corporate Communications,
Audit and Information Technology
LENDER:
Southern Diversified Timber, LLC ,
a Delaware limited liability company
By: TCG / Southern Diversified Manager, LLC
a Delaware limited liability company, its Manager
By: The Campbell Group, LLC
a Delaware limited liability company,
its Managing Member
By:  

/s/ John Gilleland

Name:   John Gilleland
Title:   President
GUARANTOR
(as to Article VIII only):
PLUM CREEK TIMBER COMPANY, INC.,
a Delaware corporation
By:  

/s/ Joan K. Fitzmaurice

Name:   Joan K. Fitzmaurice
Title:   Vice President, Corporate Communications,
Audit and Information Technology

 

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SCHEDULE 9.02

LENDER’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES

BORROWER AND GUARANTOR:

Plum Creek Timber Company, Inc.

999 Third Avenue, Suite 4300

Seattle, WA 98104

Attention: Laura Smith, Vice President and Treasurer

Telephone: (206) 467-3636

Facsimile: (206) 467-3795

Electronic Mail: laura.smith@plumcreek.com

Website Address: www.plumcreek.com

Taxpayer Identification Number: 91-1920356

LENDER

Southern Diversified Timber, LLC

c/o TCG / Southern Diversified Manager, LLC

One S.W. Columbia, Suite 1700

Portland, OR 97258

Attn: John Gilleland and Stan Renecker

Tel.: 503-275-9675

Fax: 503-275-9667

 


      

 

EXHIBIT A

FORM OF NOTE

Borrower: Plum Creek Ventures I, LLC

Date: [    ], 2008

$783,000,000

 

 

FOR VALUE RECEIVED, the undersigned (the “ Borrower ”) hereby promises to pay to Southern Diversified Timber, LLC or registered assigns (the “ Lender “), the principal amount of $783,000,000 (the “ Loan ”) in accordance with the terms of that certain Credit Agreement, among the Borrower, the Lender and Plum Creek Timber Company, Inc. dated as of [ ], 2008 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined).

The Borrower promises to pay interest on the unpaid principal amount of the Loan from the date hereof until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Lender in immediately available funds by wire transfer to the account directed by the Lender. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.

This Note is the Note referred to in the Agreement and is entitled to the benefits thereof. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable as provided in the Agreement.

The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.

THE LIABILITY OF THE BORROWER UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS IS NONRECOURSE TO THE BORROWER AND IS LIMITED TO THE BORROWER’S INTEREST IN THE PLEDGED INTEREST (AS DEFINED IN THE PLEDGE AGREEMENT), EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.04 OF THE AGREEMENT.

 


      

 

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

PLUM CREEK VENTURES I, LLC,
a Delaware limited liability company
By: PLUM CREEK TIMBER COMPANY, INC.,
Its sole member
By:  

 

Name:  
Title:  

 

Exhibit 99.1

 

LOGO  

NEWS RELEASE

 

 

 

Corporate Headquarters • P.O. Box 9777 • Federal Way, WA 98063-9777

For more information contact:

Analysts – Beth Baum, 253-924-3815

Financial Media – Dan Katcher, 212-355-4449

Regional Media – Anthony Chavez, 253-924-7148

Weyerhaeuser completes merger with Plum Creek

FEDERAL WAY, Wash. (Feb. 19, 2016) — Weyerhaeuser Company (NYSE: WY) today announced the completion of the merger with Plum Creek Timber Company, Inc. Shareholders of both companies approved the transaction at separate special meetings of shareholders held on Feb. 12, 2016. The combined company retains the Weyerhaeuser name and continues to be traded under the WY ticker symbol on the New York Stock Exchange.

The combined company owns more than 13 million acres of diverse and productive timberlands and operates 38 wood products manufacturing facilities across the country.

This is an exciting day for Weyerhaeuser as we bring together the best assets and talent in the industry ,” said Doyle R. Simons, president and CEO. “In the coming months, we will be relentlessly focused on creating value for our shareholders by capturing cost synergies, leveraging our scale, sharing best practices, delivering the most value from every acre and driving operational excellence. I look forward to being part of this outstanding team as we work together to be the world’s premier timber, land and forest products company.”

Post-Closing Board of Directors Named for Weyerhaeuser Company

Weyerhaeuser also announced the members of the combined company’s board of directors. As previously announced, the 13-person board includes eight directors from the pre-closing Weyerhaeuser board and five directors from the pre-closing Plum Creek board. The directors include: Rick R. Holley (non-executive chairman), David P. Bozeman, Mark A. Emmert, Sara Grootwassink Lewis, John I. Kieckhefer, John F. Morgan Sr., Nicole W. Piasecki, Marc F. Racicot, Lawrence A. Selzer, Doyle R. Simons, D. Michael Steuert, Kim Williams, and Charles R. Williamson.

Transaction Information

In accordance with the terms of the merger agreement, each outstanding share of Plum Creek common stock immediately prior to the merger converted into the right to receive 1.60 common shares of Weyerhaeuser Company. In total, approximately 278.9 million common shares of Weyerhaeuser will be issued to Plum Creek stockholders, representing approximately 35 percent of the total shares outstanding.

In conjunction with the closing of the transaction, Weyerhaeuser also paid off outstanding amounts under Plum Creek’s Term Loan Agreement as well as outstanding amounts due under Plum Creek’s Revolving Credit Agreement.

About Weyerhaeuser

Weyerhaeuser Company, one of the world’s largest private owners of timberlands, began operations in 1900. We own or control more than 13 million acres of timberlands, primarily in the U.S., and manage additional timberlands under long-term licenses in Canada. We manage these timberlands on a sustainable basis in compliance with internationally recognized forestry standards. We are also one of the largest manufacturers of wood and cellulose fibers products. Our company is a real estate investment trust. In 2015, Weyerhaeuser and Plum Creek generated approximately $8.5 billion in net sales and employed nearly 14 thousand people who serve customers worldwide. We are listed on the Dow Jones World Sustainability Index. Our common stock trades on the New York Stock Exchange under the symbol WY. Learn more at www.weyerhaeuser.com .


Forward-looking Statements

This communication contains statements that are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including, without limitation, with respect to Weyerhaeuser’s future results and performance and the expected benefits of the transaction with Plum Creek such as efficiencies, cost savings and growth potential, all of which are subject to risks and uncertainties. Factors listed below, as well as other factors, may cause actual results to differ significantly from these forward-looking statements. There is no guarantee that any of the events anticipated by these forward-looking statements will occur. If any of the events occur, there is no guarantee what effect they will have on company operations or financial condition. Weyerhaeuser will not update these forward-looking statements after the date of this communication.

Some forward-looking statements discuss Weyerhaeuser’s and Plum Creek’s plans, strategies, expectations and intentions. They use words such as “expects,” “may,” “will,” “believes,” “should,” “approximately,” “anticipates,” “estimates,” and “plans.” In addition, these words may use the positive or negative or other variations of those and similar words.

Major risks, uncertainties and assumptions that affect Weyerhaeuser’s and Plum Creek’s businesses and may cause actual results to differ materially from those expressed or implied in these forward-looking statements, including, without limitation, the risk that the businesses of Weyerhaeuser and Plum Creek will not be integrated successfully; the effect of general economic conditions, including employment rates, housing starts, interest rate levels, availability of financing for home mortgages, and strength of the U.S. dollar; market demand for our products, which is related to the strength of the various U.S. business segments and U.S. and international economic conditions; performance of our manufacturing operations, including maintenance requirements; the level of competition from domestic and foreign producers; the successful execution of internal performance plans, including restructurings and cost reduction initiatives; raw material prices; energy prices; the effect of weather; the risk of loss from fires, floods, windstorms, hurricanes, pest infestation and other natural disasters; transportation availability and costs; federal tax policies; the effect of forestry, land use, environmental and other governmental regulations; legal proceedings; performance of pension fund investments and related derivatives; the effect of timing of retirements and changes in the market price of company stock on charges for stock-based compensation; changes in accounting principles; and other factors described in Weyerhaeuser’s and Plum Creek’s filings with the SEC, including the “Risk Factors” section in Weyerhaeuser’s and Plum Creek’s respective annual reports on Form 10-K for the year ended December 31, 2015. Other risks associated with the transaction with Plum Creek are also discussed in the definitive joint proxy statement/prospectus that Weyerhaeuser and Plum Creek filed with the SEC on Form 424B3 and Schedule 14A, respectively, on December 29, 2015 in connection with the transaction.

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