CITIZENS COMMUNICATIONS COMPANY $400,000,000 7.875% Senior Notes due 2027 REGISTRATION RIGHTS AGREEMENT
Exhibit
4.2
$400,000,000
7.875% Senior Notes due 2027
December
22, 2006
Citigroup
Global Markets Inc.
Credit
Suisse Securities (USA) LLC
▇.▇.
▇▇▇▇▇▇ Securities Inc.
c/o
Citigroup Global Markets Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Citizens
Communications Company, a corporation organized under the laws of Delaware
(the
“Company”), proposes to issue and sell to certain purchasers (the “Initial
Purchasers”), for whom you (the “Representatives”) are acting as
representatives, its 7.875% Senior Notes due 2027 (the “Securities”), upon the
terms set forth in the Purchase Agreement between the Company and the
Representatives dated December 18, 2006 (the “Purchase Agreement”) relating to
the initial placement (the “Initial Placement”) of the Securities. To induce the
Initial Purchasers to enter into the Purchase Agreement and to satisfy a
condition to your obligations thereunder, the Company agrees with you for your
benefit and the benefit of the holders from time to time of the Securities
(including the Initial Purchasers) (each a “Holder” and, collectively, the
“Holders”), as follows:
1. Definitions. Capitalized
terms used herein without definition shall have their respective meanings set
forth in the purchase agreement. As used in this agreement, the following
capitalized defined terms shall have the following meanings:
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Affiliate”
shall have the meaning specified in Rule 405 under the Act and the terms
“controlling” and “controlled” shall have meanings correlative
thereto.
“Broker-Dealer”
shall mean any broker or dealer registered as such under the Exchange
Act.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Closing
Date” shall mean the date of the first issuance of the Securities.
“Commission”
shall mean the Securities and Exchange Commission.
“Company”
shall have
the
meaning set forth in the preamble hereto.
“Deferral
Period” shall have the meaning indicated in Section 4(k)(ii)
hereof.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Exchange
Offer Registration Period” shall mean the one-year period following the
consummation of the Registered Exchange Offer, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the
Exchange Offer Registration Statement.
“Exchange
Offer Registration Statement” shall
mean
a
registration statement of the Company on an appropriate form under the Act
with
respect to the Registered Exchange Offer, all amendments and supplements to
such
registration statement, including post-effective amendments
thereto,
in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
“Exchanging
Dealer” shall
mean
any
Holder (which may include any Initial Purchaser) that is a Broker-Dealer and
elects to exchange for
New
Securities any Securities
that
it
acquired
for its own account as a result of market-making activities or other trading
activities (but not directly from the Company or any Affiliate of the Company)
for New Securities.
“Final
Memorandum” shall
mean the
offering memorandum, dated December
18, 2006,
relating
to the Securities, including any and all exhibits thereto and any information
incorporated by reference therein as of such date.
“Holder”
shall
have
the
meaning set forth in the preamble hereto.
“Indenture”
shall
mean
the
Indenture relating to the Securities,
dated as
of December
22, 2006,
between
the Company and The
Bank
of New York,
as
trustee, as the same may be amended from time to time in accordance with the
terms thereof.
“Initial
Placement” shall
have
the
meaning set forth in the preamble hereto.
“Initial
Purchaser” shall have the meaning set forth in the preamble hereto.
“Losses”
shall have the meaning set forth in Section 6(d) hereof.
“Majority
Holders” shall
mean,
on any
date,
Holders
of a majority of the aggregate principal amount of Securities registered under
a
Registration Statement.
2
“Managing
Underwriters” shall
mean
the
investment banker or investment bankers and manager or managers that administer
an underwritten offering,
if any,
under
a
Registration Statement.
“NASD
Rules” shall mean the Conduct Rules and the By-Laws of the National Association
of Securities Dealers, Inc.
“New
Securities” shall
mean
debt
securities
of the Company identical in all material respects to the Securities (except
that
the transfer restrictions shall
be
modified or eliminated, as appropriate) to be issued under the
New
Securities Indenture.
“New
Securities Indenture” shall
mean
an
indenture between the Company and the New Securities Trustee, identical in
all
material respects to the Indenture (except that the transfer restrictions
shall
be
modified or eliminated, as appropriate),
which
may be the Indenture if in the terms thereof appropriate provision is made
for
the New Securities.
“New
Securities Trustee” shall
mean
a
bank or trust company reasonably satisfactory to the Initial Purchasers, as
trustee with respect to the New Securities under the New Securities
Indenture.
“Prospectus”
shall
mean
the
prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A under the Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Securities or the New Securities covered by such Registration Statement, and
all
amendments and supplements thereto,
including any and all exhibits thereto and any information incorporated by
reference therein.
“Purchase
Agreement” shall have the meaning set forth in the preamble hereto.
“Registered
Exchange Offer” shall
mean
the
proposed offer of
the
Company to
issue
and
deliver to the
Holders of
the
Securities that are not prohibited by any law or policy of the Commission from
participating in such offer,
in
exchange for the Securities, a like aggregate
principal
amount of the New Securities.
“Registrable
Securities” shall mean (i) Securities other than those that have been (A)
registered under a Registration Statement and disposed of in accordance
therewith or (B) distributed to the public pursuant to Rule 144 under the Act
or
any successor rule or regulation thereto that
may
be adopted by the Commission
and (ii)
any New Securities resale of which by the Holder thereof requires compliance
with the prospectus delivery requirements of the Act.
“Registration
Default Damages” shall have the meaning set forth in Section 8
hereof.
“Registration
Statement” shall
mean
any
Exchange Offer Registration Statement or Shelf Registration Statement that
covers any of the Securities or the New Securities pursuant to the provisions
of
this Agreement, any
amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein),
all
exhibits thereto and all material incorporated by reference
therein.
“Representatives”
shall have the
meaning set forth in the preamble hereto.
3
“Securities”
shall
have
the
meaning set forth in the preamble hereto.
“Shelf
Registration” shall
mean
a
registration effected pursuant to Section 3 hereof.
“Shelf
Registration Period” has the meaning set forth in Section 3(b)(ii)
hereof.
“Shelf
Registration Statement” shall
mean
a
“shelf” registration statement of the Company pursuant to the provisions of
Section 3 hereof which covers some or all of the Securities or New
Securities, as applicable, on an appropriate form under Rule 415 under the
Act, or any similar rule that may be adopted by the Commission, amendments
and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
“Trustee”
shall
mean
the
trustee with respect to the Securities under the Indenture.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“underwriter”
shall
mean
any
underwriter of Securities in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered
Exchange Offer. (a)
The Company shall prepare and, not later than 90 days following the closing
date, shall file with the Commission the Exchange Offer Registration Statement
with respect to the Registered Exchange Offer. The Company shall use its
reasonable
best
efforts to cause the Exchange Offer Registration Statement to become effective
under the Act within 180 days of the Closing
Date.
(b)
Upon
the
effectiveness of the Exchange Offer Registration Statement, the Company shall
promptly commence the Registered Exchange Offer, it being the objective of
such
Registered Exchange Offer to enable each Holder electing to exchange Securities
for New Securities (assuming that such Holder is not an Affiliate of the
Company, acquires the New Securities in the ordinary
course
of
such Holder’s business, has no arrangements with any person to participate in
the distribution of the New Securities
and is
not prohibited by any law or policy of the Commission from participating in
the
Registered Exchange Offer)
to
trade such New Securities from and after their receipt without any limitations
or restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
(c)
In
connection with the Registered Exchange Offer, the Company shall:
(i) mail
to
each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal
and
related documents;
4
(ii) keep
the
Registered Exchange Offer open for not less than 30
days
and not more than 45 days
after
the date notice thereof is mailed to the Holders (or,
in each
case,
longer
if required by applicable law);
(iii) use
its
reasonable
best
efforts to keep the Exchange Offer Registration Statement continuously
effective
under
the Act, supplemented and amended as required
under
the Act, to
ensure
that it is available for sales of New Securities by Exchanging Dealers during
the Exchange Offer Registration Period;
(iv) utilize
the services of a depositary for the Registered Exchange Offer with an address
in the Borough of Manhattan
in
New
York
City,
which may be the Trustee, the New Securities Trustee or an Affiliate of either
of them;
(v) permit
Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Registered
Exchange Offer is open;
(vi) prior
to
effectiveness of the Exchange Offer Registration Statement, provide a
supplemental letter to the Commission (A) stating that the Company is conducting
the Registered Exchange Offer in reliance on the position of the Commission
in
Exxon
Capital Holdings Corporation
(pub.
avail. May 13, 1988), and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and Co., Inc.
(pub.
avail. June 5, 1991); and (B) including a representation that the Company has
not entered into any arrangement or understanding with any person to distribute
the New Securities to be received in the Registered Exchange Offer and that,
to
the best of the Company’s information and belief, each Holder participating in
the Registered Exchange Offer is acquiring the New Securities in the ordinary
course of business and has no arrangement or understanding with any person
to
participate in the distribution of the New Securities; and
(vii) comply
in
all respects with all applicable laws.
(d) As
soon
as practicable after the close of the Registered Exchange Offer, the Company
shall:
(i) accept
for exchange all Securities tendered and not validly withdrawn pursuant to
the
Registered Exchange Offer;
(ii) deliver
to the Trustee for cancellation in
accordance with Section 4(s) all
Securities so accepted for exchange; and
(iii) cause
the
New Securities Trustee promptly to authenticate and deliver to each Holder
of
Securities a
principal amount of New
Securities equal to the principal
amount of the Securities
of such Holder so accepted for exchange.
5
(e) Each
Holder hereby acknowledges and agrees that any Broker-Dealer and any such
Holder
using the Registered Exchange Offer to participate in a distribution of the
New
Securities (x) could not under Commission policy as in effect on the date
of
this Agreement rely on the position of the Commission in Exxon
Capital Holdings Corporation
(pub.
avail. May 13, 1988) and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and Co., Inc.
(pub.
avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman
& Sterling dated July 2, 1993 and similar no-action letters; and (y) must
comply with the registration and prospectus delivery requirements of the
Act in
connection with any secondary resale transaction, which must be covered by
an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K
under
the Act if the resales are of New Securities obtained by such Holder in exchange
for Securities acquired by such Holder directly from the Company or one of
its
Affiliates. Accordingly, each Holder participating in the Registered Exchange
Offer shall be required to represent to the Company that, at the time of
the
consummation of the Registered Exchange Offer:
(i) any
New
Securities received by such Holder will be acquired in the ordinary course
of
business;
(ii) such
Holder will have no arrangement or understanding with any person to participate
in the distribution of the Securities or the New Securities within the meaning
of the Act; and
(iii) such
Holder is not an Affiliate of the Company.
(f)
If
any
Initial
Purchaser
determines that it is not eligible to participate in the Registered Exchange
Offer with respect to the exchange of Securities constituting any portion of
an
unsold allotment, at the request of such Initial Purchaser, the Company shall
issue and deliver to such Initial Purchaser or the person
purchasing New Securities registered under a Shelf Registration Statement as
contemplated by Section 3 hereof from such Initial Purchaser, in exchange for
such Securities, a like principal amount of New Securities. The Company shall
use
its
reasonable best efforts to
cause
the CUSIP Service Bureau to issue the same CUSIP number for such New Securities
as for New Securities issued pursuant to the Registered Exchange
Offer.
3. Shelf
Registration. (a)
If (i) due
to
any
change in law or applicable interpretations thereof by the Commission’s staff,
the Company determines upon advice of its outside counsel that it is not
permitted to effect the Registered Exchange Offer as contemplated by
Section 2 hereof; or (ii) for
any other reason the Registered Exchange Offer is not consummated within 225
days of the date hereof; (iii)
any
Initial Purchaser so requests with respect to Securities that
are
not eligible to be exchanged for New Securities in the Registered Exchange
Offer
and that are held
by
it following consummation of the Registered Exchange Offer; (iv) any
Holder (other than an
Initial
Purchaser) is not eligible to participate in the Registered Exchange
Offer;
or
(v) in
the case of any Initial Purchaser that participates in the Registered Exchange
Offer or acquires New Securities pursuant to Section 2(f) hereof, such
Initial Purchaser does not receive freely tradeable New Securities in exchange
for Securities constituting any portion of an unsold allotment (it being
understood that
(x)
the
requirement that an Initial
Purchaser deliver a Prospectus containing the information required by Item
507
or 508 of regulation S-K under the Act in connection with sales of New
Securities acquired in exchange for such Securities shall not
result
in
such New Securities being not “freely tradeable”;
and
(y) the
requirement that an exchanging Dealer deliver a Prospectus in connection with
sales of New Securities acquired in the Registered Exchange Offer in exchange
for Securities acquired as a result of market-making activities or other trading
activities shall not result in such New Securities being not “freely
tradeable”), the Company
shall effect a Shelf Registration Statement in accordance with subsection (b)
below.
6
(b)
(i) The Company shall as promptly as practicable (but in no event
more than 90 days after so required or requested pursuant to this Section 3),
file with the Commission,
or if
permitted by Rule 430B under the Act, otherwise designate an existing filing
with the Commission,
a Shelf
Registration Statement relating to the offer and sale of the Securities or
the
New Securities, as applicable, by the Holders thereof
from
time
to time in accordance with the methods of distribution elected by such Holders
and set forth in such Shelf Registration Statement; provided,
however,
that
no
Holder
(other than an Initial Purchaser) shall be entitled to have the Securities
held
by it covered by such Shelf Registration Statement unless such Holder agrees
in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder; and provided further, that with
respect to New Securities received by an
Initial
Purchaser in exchange for Securities constituting any portion of an unsold
allotment, the Company may, if permitted by current interpretations by the
Commission’s staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Item 507 or
508
of
Regulation S-K,
as
applicable, in satisfaction of its obligations under this subsection with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement. Unless
such Shelf Registration Statement is a previously filed Shelf Registration
Statement that is effective at the time
it
is so designated, the Company shall
use
its reasonable
best
efforts to cause the
Shelf
Registration Statement to
be
declared effective under the Act
within
180 days after
so
required or requested.
(ii) The
Company shall use its reasonable
best
efforts to keep the Shelf Registration Statement continuously
effective,
supplemented and amended as required by the Act, in
order
to permit the Prospectus forming part thereof to be usable by Holders for a
period (the “Shelf Registration Period”) from
the
date the Shelf Registration Statement is declared effective by the Commission
until
(A)
the second anniversary thereof or
(B)
the date upon which
all the
Securities or New Securities, as applicable, covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement. The
Company shall be deemed not to have used its reasonable
best
efforts to keep the Shelf Registration Statement effective during the Shelf
Registration Period if it voluntarily takes any action that would result in
Holders of Securities covered thereby not being able to offer and sell such
Securities at
any
time during
the Shelf Registration Period,
unless such action is (x) required
by applicable law or otherwise
undertaken
by
the Company in good faith and for valid business reasons (not including
avoidance
of the Company’s obligations hereunder), including the acquisition or
divestiture of assets, and
(y) permitted pursuant to Section 4(k)(ii)
hereof.
(iii) The
Company shall cause the Shelf Registration Statement and the related Prospectus
and any amendment or supplement thereto, as of the effective date of the
Shelf
Registration Statement or such amendment or supplement, (A) to comply in
all
material respects with the applicable requirements of the Act; and (B) not
to
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary in order to make the statements
therein (in
the
case of the Prospectus, in the
light
of
the circumstances under which they were made)
not
misleading.
7
4. Additional
Registration
Procedures. In
connection with any Shelf Registration Statement and, to the extent applicable,
any Exchange Offer Registration Statement, the following provisions shall
apply.
(a) The
Company shall:
(i) furnish
to each of the Representatives and to counsel for the Holders, not
less
than five Business Days prior
to
the filing
or
designation
thereof
with the Commission, a copy of any Exchange Offer Registration
Statement
and any
Shelf
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein (including
all documents incorporated by reference therein after the initial filing or
designation) and
shall
use its reasonable
best
efforts to reflect in each such document, when so filed or
designated with
the
Commission, such comments as the Representatives reasonably propose;
subject
to the Company’s reasonable
determination as to compliance with applicable laws as provided in subsection
(b) below.
(ii) include
the information set forth in Annex A hereto on the facing
page of
the
Exchange Offer Registration Statement, in Annex B hereto in the forepart of
the
Exchange Offer Registration Statement in a section setting forth details of
the
Exchange Offer, in
Annex
C hereto in the underwriting or plan of distribution section of the Prospectus
contained
in
the
Exchange Offer Registration Statement, and in Annex D hereto in the letter
of
transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if
requested by an
Initial
Purchaser, include the information required by Item 507 or 508 of Regulation
S-K, as applicable, in the Prospectus contained
in the
Exchange Offer Registration Statement; and
(iv) in
the
case of a Shelf Registration Statement, include the names of the Holders that
propose to sell Securities pursuant to the Shelf Registration Statement as
selling security holders.
(b) The
Company shall ensure that:
(i) any
Registration Statement and any amendment thereto and any Prospectus forming
part
thereof and any amendment or supplement thereto complies in all material
respects with the Act; and
(ii) any
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
8
(c) The
Company shall advise the Representatives,
the Holders of Securities covered by any Shelf Registration
Statement and
any
Exchanging Dealer under
any
Exchange Offer Registration Statement that
has
provided in writing to the Company a telephone or facsimile number and address
for notices,
and, if
requested by any Representative or any such Holder or Exchanging Dealer,
shall
confirm
such advice in writing
(which
notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the Prospectus until the Company shall have
remedied the basis for such suspension):
(i) when
a
Registration Statement and any amendment thereto has been filed or
designated with
the
Commission and when the Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of
any
request by the Commission for any
amendment
or supplement to the Registration Statement or the Prospectus or for additional
information;
(iii) of
the
issuance by the Commission of any stop order suspending the effectiveness of
the
Registration Statement or the institution or
threatening of
any
proceeding for that purpose;
(iv) of
the
receipt by the Company of any notification with respect to the suspension of
the
qualification of the securities included therein for sale in any jurisdiction
or
the institution or
threatening of
any
proceeding for such purpose; and
(v) of
the
happening of any event that requires any change in the Registration Statement
or
the Prospectus so that, as of such date, they (A)
do
not
contain any untrue statement of a material fact and (B)
do
not
omit to state a material fact required to be stated therein or necessary to
make
the statements therein (in the case of the Prospectus, in the
light
of
the circumstances under which they were made) not misleading.
(d) The
Company shall use its reasonable
best
efforts to prevent
the issuance of
any
order suspending the effectiveness of any Registration Statement or
the
qualification of the securities therein for sale in any jurisdiction
and,
if
issued, to
obtain
as
soon
as possible the
withdrawal
thereof.
(e) The
Company shall furnish to each Holder of Securities covered
by any
Shelf
Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
all
material incorporated therein by reference,
and, if
the Holder so requests in writing, all exhibits thereto
(including
exhibits
incorporated
by reference
therein).
(f) The
Company shall, during the Shelf Registration Period, deliver to each Holder
of
Securities covered
by any
Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including the Preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request.
The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Securities in connection with the
offering and sale of the Securities covered by the Prospectus,
or any
amendment or supplement thereto,
included in the Shelf Registration Statement.
9
(g) The
Company shall furnish to each Exchanging Dealer which so requests, without
charge, at least one copy of the Exchange Offer Registration Statement and
any
post-effective amendment thereto, including all
material incorporated by reference therein,
and, if
the Exchanging Dealer so requests in writing, all exhibits thereto
(including
exhibits incorporated by reference
therein).
(h) The
Company shall promptly deliver to each Initial
Purchaser, each Exchanging
Dealer and
each
other person required to deliver a Prospectus during the Exchange Offer
Registration Period, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any
such
person may reasonably
request.
The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by any Initial Purchaser, any Exchanging Dealer
and any
such
other person that
may
be required
to deliver a Prospectus
following the Registered Exchange Offer in connection with the offering and
sale
of the New Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Exchange Offer Registration Statement.
(i) Prior
to
the Registered Exchange Offer or any other offering of Securities pursuant
to
any Registration Statement, the Company shall arrange, if necessary, for the
qualification of the Securities
or the
New Securities for sale under the laws of such jurisdictions in
the
United States as
any
Holder shall
reasonably request and shall
maintain such qualification in effect so long as required;
provided
that
in no
event shall
the
Company be obligated
to
qualify to do business in any jurisdiction where it is not then so qualified
or
to take any action
that
would
subject it to service of process in
suits,
other than those arising out of the Initial Placement, the Registered Exchange
Offer or any offering pursuant to a Shelf Registration Statement,
in any
such jurisdiction where it is not then so subject.
(j) The
Company shall cooperate with the Holders of Securities to facilitate the timely
preparation and delivery of certificates representing New
Securities
or
Securities
to be
issued
or
sold
pursuant to any Registration Statement free of any restrictive legends and
in
such denominations and registered in such names as Holders may
request.
(k) (i) Upon
the
occurrence of any event contemplated by subsections (c)(ii)
through
(v)
above,
the Company shall promptly (or
within the time period provided for by clause (ii) hereof, if applicable)
prepare
a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to Initial Purchasers of the
securities included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact required
to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
In such
circumstances, the period of effectiveness of the Exchange Offer Registration
Statement provided for in Section 2 shall be extended by the number of days
from
and including the date of the giving of a notice of suspension pursuant to
Section 4(c) to and including the date when the Initial Purchasers, the Holders
of the Securities and any known Exchanging Dealer shall have received such
amended or supplemented Prospectus pursuant to this Section.
10
(ii) Upon
the
occurrence or existence of any pending corporate development or any other
material event that, in the reasonable judgment of the Company, makes it
appropriate to suspend the availability of a Shelf Registration Statement and
the related Prospectus, the Company shall give notice (without notice of the
nature or details of such events) to the Holders that the availability of the
Shelf Registration is suspended and, upon actual receipt of any such notice,
each Holder agrees not to sell any Registrable Securities pursuant to the Shelf
Registration until such Holder’s receipt of copies of the supplemented or
amended Prospectus provided for in Section 3(i) hereof, or until it is advised
in writing by the Company that the Prospectus may be used, and has received
copies of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The period during which the
availability of the Shelf Registration and any Prospectus is suspended (the
“Deferral Period”) shall not exceed 45 days in any three-month period or 90 days
in any 12-month period.
(l) Not
later
than the effective date of any Registration Statement, the Company shall provide
a CUSIP number for the Securities or the
New
Securities, as the case may be, registered under such Registration Statement
and
provide the Trustee
with printed certificates for such Securities or New Securities, in a form
eligible for deposit with The Depository Trust Company.
(m) The
Company shall comply with all applicable rules and regulations of the Commission
and shall make generally available to its security holders an earnings statement
satisfying the provisions of Section 11(a) of the Act as
soon
as practicable after the effective date of the applicable Registration Statement
and
in
any event no later than 45 days after the end of a 12-month period (or 90 days,
if such period is a fiscal year) beginning with the first month of the Company’s
first fiscal quarter commencing after the effective date of the
applicable Registration Statement.
(n) The
Company shall cause the New Securities Indenture to be qualified under the
Trust
Indenture Act in a timely manner.
(o) The
Company may require each Holder of securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Company such information regarding
the
Holder
and
the distribution of such securities as the Company may from time to time
reasonably require for inclusion in such Registration Statement.
The Company
may
exclude from such Shelf Registration Statement the Securities of any Holder
that
unreasonably fails to furnish such information within a reasonable time after
receiving such request. In addition, each Holder further agrees that, neither
such Holder nor any underwriter participating in any disposition pursuant to
any
Registration Statement on such Holder’s behalf, will make any offer relating to
the Registrable Securities that would constitute an Issuer Free Writing
Prospectus (as defined in Rule 433 under the Act) or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405 under the Act)
required to be filed by the Company with the Commission or retained by the
Company under Rule 433 of the Securities Act, unless it has obtained the prior
written consent of the Company.
11
(p) In
the
case of any Shelf Registration Statement, the
Company shall enter into customary
agreements (including,
if requested, an underwriting agreement in customary form) and
take
all other appropriate actions in
order
to expedite or facilitate the registration or the disposition of the Securities,
and in connection therewith, if an underwriting agreement is entered into,
cause
the same to contain indemnification provisions and procedures no less favorable
than those set forth in Section 6 hereof.
(q) In
the
case of any Shelf Registration Statement, the Company shall:
(ii) cause
the
Company’s officers, directors, employees,
accountants and auditors
to
supply all relevant information reasonably requested by the Holders or any
such
underwriter, attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations;
(iii) make
such
representations and warranties to the Holders of Securities registered
thereunder and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten offerings
and covering matters including, but not limited to, those set forth in the
Purchase Agreement;
(iv) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the
Managing Underwriters, if any) addressed to each selling Holder
and the underwriters, if any, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other matters as may
be
reasonably requested by such Holders and underwriters;
(v) obtain
“comfort” letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each
selling Holder of Securities registered thereunder and the underwriters, if
any,
in customary form and covering matters of the type customarily covered in
“comfort” letters in connection with primary underwritten offerings;
and
12
(vi) deliver
such documents and certificates as may be reasonably requested by the Majority
Holders or the Managing Underwriters, if any, including those to evidence
compliance with Section 4(k) and with any customary conditions contained in
the
underwriting agreement or other agreement entered into by the
Company.
The
actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph
(q)
shall be
performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto;
and (B)
each closing under any underwriting or similar agreement as and to the extent
required thereunder.
(r) In
the
case of any Exchange Offer Registration Statement, the Company shall,
if
requested by an Initial Purchaser, or by a broker dealer that holds Securities
that were acquired as a result of market making or other trading
activities:
(i) make
reasonably available for inspection by the requesting party, and any attorney,
accountant or other agent retained by the
requesting party,
all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries,
subject, in the case of a request by a broker dealer, to the Company obtaining
from such broker dealer a confidentiality agreement in form and substance
reasonably acceptable to the Company;
(ii) cause
the
Company’s officers, directors, employees,
accountants and auditors
to
supply all relevant information reasonably requested by the
requesting party
or any
such attorney, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations;
(iii) make
such
representations and warranties to the
requesting party,
in
form, substance and scope as are customarily made by issuers to underwriters
in
primary underwritten offerings and covering matters set
forth
in the Purchase Agreement;
(iv) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the
requesting party and its counsel) addressed to the requesting party, covering
such matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
requesting party or its counsel;
(v) obtain
“comfort” letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to the
requesting party, in customary form and covering matters of the type customarily
covered in “comfort” letters in connection with primary underwritten offerings,
or if requested by the requesting party or its counsel in lieu of a “comfort”
letter, an agreed-upon procedures letter under Statement on Auditing Standards
No. 35, covering matters requested by the requesting party or its counsel;
and
13
(vi) deliver
such documents and certificates as may be reasonably requested by the requesting
party or its counsel, including those to evidence compliance with Section 4(k)
and with conditions customarily contained in underwriting
agreements.
The
foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section 4 shall be performed at the close of the Registered Exchange Offer
and
the effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s)
If
a
Registered Exchange Offer is to be consummated, upon delivery of the Securities
by Holders to the Company (or to such other person as directed by the Company)
in exchange for the New Securities, the Company shall ▇▇▇▇, or caused to be
marked, on the Securities so exchanged that such Securities are being cancelled
in exchange for the New Securities. In no event shall the Securities be marked
as paid or otherwise satisfied.
(t) The
Company shall use its reasonable best efforts, if the Securities have been
rated
prior to the initial sale of such Securities, to confirm such ratings will
apply
to the Securities or the New Securities, as the case may be, covered by a
Registration Statement.
(u) In
the
event that any Broker-Dealer shall underwrite any Securities or participate
as a
member of an underwriting syndicate or selling group or “assist in the
distribution” (within the meaning of the NASD Rules) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or a
broker or dealer in respect thereof, or otherwise, the Company shall assist
such
Broker-Dealer in complying with the NASD Rules.
(v) The
Company shall use its reasonable best efforts to take all other steps necessary
to effect the registration of the Securities or the New Securities, as the
case
may be, covered by a Registration Statement.
5. Registration
Expenses.
The Company shall bear all expenses incurred in connection with the performance
of its obligations under Sections 2, 3 and 4 hereof and, in the event of
any Shelf Registration Statement, will reimburse the Holders for the reasonable
fees and disbursements of one firm or counsel (which
shall initially be Weil, Gotshal & ▇▇▇▇▇▇ LLP, but which may be another
nationally recognized law firm experienced in securities matters designated
by
the
Majority
Holders)
to act
as counsel for the Holders in connection therewith, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Initial Purchasers
for
the reasonable fees and disbursements of counsel acting in connection
therewith.
14
6. Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Holder of Securities
or
New
Securities, as the case may be, covered
by
any
Registration Statement,
each
Initial Purchaser and, with respect to any Prospectus delivery as contemplated
in Section 4(h) hereof, each Exchanging Dealer, the directors, officers,
employees, Affiliates and agents of each such Holder,
Initial
Purchaser or Exchanging Dealer
and each
person who controls any such Holder,
Initial
Purchaser or Exchanging Dealer
within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them
may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or the
Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are
based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the
case of
any preliminary Prospectus
or
the
Prospectus, in the
light
of
the circumstances under which they were made) not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal expenses
(which, in the absence of actual or potential conflict of interest, will
consist
of expenses for no more than one counsel (in addition to local counsel) for
all
such indemnified parties) or
other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, damage, liability
or action; provided,
however,
that
the Company will not be liable in any such
case
to
the extent that any such loss, claim, damage or liability arises out of or
is
based upon any such untrue statement or alleged untrue statement or omission
or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the party claiming
indemnification specifically for inclusion therein. This indemnity agreement
shall be in addition to any liability that the Company may otherwise
have.
The
Company also agrees to indemnify as provided in this
Section
6(a) or contribute as provided in Section 6(d) hereof
to
Losses
of each underwriter,
if
any,
of
Securities or
New
Securities, as the case may be, registered
or
designated under
a
Shelf Registration Statement, their directors,
officers,
employees, Affiliates
or
agents
and each
person who controls such underwriter on substantially the same basis as that
of
the indemnification of the Initial Purchasers
and the
selling Holders provided in this Section 6(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(p) hereof.
(b) Each
Holder of securities covered by a Registration Statement (including each Initial
Purchaser
that is
a Holder, in such capacity)
severally and
not
jointly agrees
to
indemnify and hold harmless the Company,
each
of
its directors,
each of
its officers who signs such Registration Statement and each person who controls
the Company within the meaning of either the Act or the Exchange Act,
to the
same extent as the foregoing indemnity from the Company to each such Holder,
but
only with reference to written information relating to such Holder furnished
to
the Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will
be in addition to any liability that any such Holder may otherwise
have.
15
(c) Promptly
after receipt by an indemnified party under this Section 6 or notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 6,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture
by
the indemnifying party of substantial rights and defenses;
and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel (including
local counsel) of
the
indemnifying party’s choice at the indemnifying party’s expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees
and
expenses of any separate counsel,
other
than local counsel if not appointed by the indemnifying party,
retained
by the indemnified party or parties except as set forth below); provided,
however,
that
such counsel shall be satisfactory to the indemnified party. Notwithstanding
the
indemnifying party’s election to appoint counsel (including
local counsel) to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate
counsel
(which,
in the absence of actual or potential conflict of interest, will consist of
no
more than one counsel (in addition to local counsel) for all such indemnified
parties) if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest;
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action;
or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding
and does
not include any statement as to, or admission of, fault, culpability or failure
to act by or behalf of any Indemnified Person. The Company shall not be liable
in respect of any settlement effected without its prior written consent, which
consent shall not be unreasonably withheld.
16
(d) In
the
event that the indemnity provided in paragraph (a) or (b) of this Section 6
is unavailable to or insufficient to hold harmless an indemnified party for
any
reason, then each applicable indemnifying party shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending any loss, claim, liability, damage or action)
(collectively “Losses”) to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the Initial Placement and the Registration Statement which resulted
in such Losses; provided,
however,
that in
no case shall any Initial Purchaser be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that
was
exchangeable into such New Security, as set forth in the Final Memorandum,
nor
shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased
by
such underwriter under the Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on
the
one hand, and such indemnified party, on the other hand, in connection with
the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the Initial Placement (before
deducting expenses) as set forth in the Final Memorandum.
Benefits
received by the Initial Purchasers
shall be deemed to be equal to the total purchase discounts and commissions
as
set forth on the cover page of the Final Memorandum, and benefits received
by
any other Holders shall be deemed to be equal to the value of receiving
Securities or New Securities, as applicable, registered under the Act. Benefits
received by any underwriter shall be deemed to be equal
to
the total underwriting discounts and commissions, as set forth on the cover
page
of the Prospectus forming a part of the Registration Statement which resulted
in
such Losses. Relative fault shall be determined by reference to, among other
things, whether any untrue
or
any alleged
untrue
statement of
a
material fact or
omission or
alleged omission to state a material fact relates
to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand,
the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation (even
if
the Holders were treated as one entity for such purpose) or
any
other method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 6, each person who controls a Holder within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of such Holder shall have the same rights to contribution as such Holder,
and each person who controls the Company within the meaning of either the Act
or
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
The
Initial Purchasers’ obligation to contribute pursuant to this paragraph (d)
shall be several in proportion to their respective purchase obligations
hereunder and not joint.
(e) The
provisions of this Section 6 will remain in full force and effect, regardless
of
any investigation made by or on behalf of any Holder or the Company or any
of
the indemnified persons referred to in this
Section
6, and will survive the sale by a Holder of securities covered by a Registration
Statement.
17
7. Underwritten
Registrations.
(a) If any of the Securities or New Securities, as the case may be,
covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriters shall be selected by the Majority
Holders.
(b) No
person
may participate in any underwritten offering pursuant to any Shelf Registration
Statement, unless such person (i) agrees to sell such person’s Securities or New
Securities, as the case may be, on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements; and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting
arrangements.
8. Registration
Defaults.
If any
of the following events shall occur, then the Company shall pay liquidated
damages (the “Registration Default Damages”) to the Holders of Securities in
respect of the Securities as follows:
(a) if
any
Registration Statement required by this Agreement is not filed or designated
with the Commission on or prior to the date specified for such filing in
this
Agreement, then Registration Default Damages shall accrue on the Registrable
Securities at a rate of .25% per annum for the first 90 days from and including
such specified date and .50% per annum thereafter; or
(b)
if,
after
having filed any Registration Statement required by this Agreement, such
Registration Statement is not declared effective by the Commission on or prior
to the date by which reasonable best efforts are to be used to cause such
effectiveness under this Agreement, then commencing on the day
after
such specified date, Registration Default Damages shall accrue on the
Registrable Securities at a rate of .25% per annum for the first 90 days from
and including such specified date and
.50%
per annum thereafter; or
(c) if
any
Registration Statement required by this Agreement has been declared effective
but ceases to be effective at any time at which it is required to be effective
under this Agreement, then commencing on the day the Registration Statement
ceases to be effective, Registration Default Damages shall accrue on the
Registrable Securities at a rate of .25% per annum for the first 90 days from
and including such date on which the Registration Statement ceases to be
effective and .50% per annum thereafter;
provided,
however,
that
(1) upon the filing or designating of the Registration Statement (in the case
of
paragraph (a) above), (2) upon the effectiveness of the Registration Statement
(in the case of paragraph (b) above), or (3) upon the effectiveness of the
Registration Statement that had ceased to remain effective (in the case of
paragraph (c) above), Registration Default Damages shall cease to accrue;
provided
further,
for the
avoidance of doubt, that
the Company shall not under any circumstances be required to pay Registration
Default Damages under (a), (b) and (c) of this Section 8 in a cumulative
manner.
9. No
Inconsistent Agreements.
The Company has not entered
into, and agrees not to enter into, any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders herein or
that
otherwise
conflicts with the provisions hereof.
18
10. Amendments
and Waivers. The
provisions of this Agreement may
not
be amended, qualified, modified or supplemented, and waivers or consents
to
departures from the provisions hereof may not be given, unless the Company
has
obtained the written consent of the Holders of a majority of the aggregate
principal amount of the
Registrable Securities outstanding;
provided
that,
with respect to any matter that directly or indirectly affects the rights
of any
Initial Purchaser hereunder, the Company shall obtain the written consent
of
each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective; provided,
further,
that
no
amendment,
qualification, supplement, waiver or consent with
respect to Section 8 hereof shall be effective as against any Holder
of Registered
Securities unless consented to in writing by such Holder; and
provided,
further,
that
the
provisions of this Section 10 may not be
amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company
has
obtained the written consent of the Initial
Purchasers and each
Holder.
Notwithstanding the foregoing (except the foregoing provisos),
a
waiver or consent to departure from the provisions hereof with respect to
a
matter that relates exclusively to the rights of Holders whose Securities
or
New
Securities, as the case may be, are
being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of Securities
or
New
Securities, as the case may be, being
sold rather than registered under such Registration
Statement.
11. Notices.
All notices and other communications provided for or permitted hereunder
shall
be made in writing by hand-delivery, first-class mail, telex, telecopier
or air
courier guaranteeing overnight delivery:
(a) if
to a
Holder, at the most current address given by such holder to the Company in
accordance with the provisions of this Section
11,
which
address initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture;
(b) if
to the
Representatives,
initially at the address or addresses set forth in the Purchase Agreement;
and
(c) if
to the
Company, initially at its address set forth in the Purchase
Agreement.
All
such
notices and communications shall be deemed to have been duly given when
received.
The
Initial Purchasers or the Company by notice to the other parties
may
designate additional or different addresses for subsequent notices or
communications.
12. Remedies.
Each Holder, in addition to being entitled to exercise all rights provided
to it
herein, in the Indenture or
in the
Purchase Agreement or granted by law, including recovery of liquidated or
other
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive in any action for specific
performance the defense that a remedy at law would be
adequate.
19
13. Successors.
This
Agreement shall inure to the benefit of and be binding upon the parties
hereto, their respective successors
and assigns, including, without the need for an express assignment or any
consent by the Company thereto, subsequent Holders of Securities and
the
New
Securities,
and the
indemnified persons referred to in Section 6 hereof.
The
Company hereby agrees to extend the benefits of this Agreement to any Holder
of
Securities and
the
New
Securities,
and any
such Holder may specifically enforce the provisions of this Agreement as
if an
original party hereto.
14. Counterparts.
This Agreement may be signed in
one or
more counterparts,
each of which shall constitute
an
original and all of which together shall constitute one and the same
agreement.
15. Headings.
The
section
headings
used
herein are
for
convenience only and shall not affect the construction
hereof.
16. Applicable
Law.
This Agreement shall be governed by and construed in accordance with the
laws of
the State of New York applicable to contracts
made
and
to be performed in the State
of New
York. The
parties hereto each hereby waive any right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this
Agreement.
17. Severability.
In the event that any one or more of the provisions contained herein, or
the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected thereby, it
being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
18. Securities
Held by the Company, etc. Whenever
the consent or approval of Holders of a specified percentage of principal
amount
of Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether
such
consent or approval was given by the Holders of such required
percentage.
20
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the Company and the
several Initial Purchasers.
| Very truly yours, | ||
| Citizens Communications Company | ||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
| Title: Chief Financial Officer | ||
The
foregoing Agreement is hereby confirmed and
accepted
as of the date first above written.
Citigroup
Global Markets Inc.
Credit
Suisse Securities (USA) LLC
▇.▇.
▇▇▇▇▇▇ Securities Inc.
By:
Citigroup Global Markets Inc.
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: Managing Director |
For
themselves and the other several
Initial
Purchasers named in Schedule I
to
the
Purchase Agreement.
21
ANNEX
A
Each
broker-dealer that receives new securities for its own account pursuant to
the
Exchange Offer must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. The Letter of Transmittal states that
by
so acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an “underwriter” within the meaning of the Act. This
prospectus, as it may be amended or supplemented from time to time, may be
used
by a broker-dealer in connection with resales of new securities received in
exchange for securities where such securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, starting on the expiration date and
ending on the close of business one year after the expiration date, it will
make
this prospectus available to any broker-dealer for use in connection with any
such resale. See “Plan of Distribution”.
A-1
ANNEX
B
Each
broker-dealer that receives new securities for its own account in exchange
for
securities, where such securities were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such new
securities. See “Plan of Distribution”.
B-1
ANNEX
C
PLAN
OF DISTRIBUTION
Each
broker-dealer that receives new securities for its own account pursuant to
the
Exchange Offer must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. This prospectus, as it may be amended
or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of new securities received in exchange for securities where such
securities were acquired as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the expiration
date
and ending on the close of business one year after the expiration date, it
will
make this prospectus, as amended or supplemented, available to any broker-dealer
for use in connection with any such resale. In addition, until __________,
______, all dealers effecting transactions in the new securities may be required
to deliver a prospectus.
The
Company will not receive any proceeds from any sale of new securities by
brokers-dealers. New securities received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the new securities or a combination of such methods
of
resale, at market prices prevailing at the time of resale, at prices related
to
such prevailing market prices or negotiated prices. Any such resale may be
made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such new securities. Any
broker-dealer that resells new securities that were received by it for its
own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such new securities may be deemed to be an
“underwriter” within the meaning of the Act and any profit of any such resale of
new securities and any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
“underwriter” within the meaning of the Act.
For
a
period of one year after
the
expiration date, the Company will promptly send additional copies of this
prospectus and any amendment or supplement to this prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the holder of the securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the securities (including any broker-dealers) against certain
liabilities, including liabilities under the Act.
[If
applicable, add information required by Regulation S-K Items 507 and/or
508.]
C-1
ANNEX
D
Rider
A
PLEASE
FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Rider
B
If
the
undersigned is not a Broker-Dealer, the undersigned represents that it acquired
the New Securities in the ordinary course of its business, it is not engaged
in,
and does not intend to engage in, a distribution of New Securities and it has
no
arrangements or understandings with any person to participate in a distribution
of the New Securities. If the undersigned is a Broker-Dealer that will receive
New Securities for its own account in exchange for Securities, it represents
that the Securities to be exchanged for New Securities were acquired by it
as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus in connection with any resale of such New
Securities; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an “underwriter” within the
meaning of the Act.
D-1