EXHIBIT 10.1
COMMONWEALTH TELEPHONE ENTERPRISES, INC.,
COMMONWEALTH TELEPHONE ENTERPRISES OF DELAWARE, INC.
FRONTIER COMMUNICATIONS CORPORATION
(formerly known as Citizens Communications Company)
AND
THE BANK OF NEW YORK MELLON
as Trustee
_________________________________
Second Supplemental Indenture
Dated as of September 2, 2008
_________________________________
3 1/4% Convertible Notes due 2023
SECOND SUPPLEMENTAL INDENTURE dated as of September 2, 2008 (the "Second
Supplemental Indenture") among COMMONWEALTH TELEPHONE ENTERPRISES, INC., a
Pennsylvania corporation (the "Company"), COMMONWEALTH TELEPHONE ENTERPRISES OF
DELAWARE, INC., a Delaware corporation ("Commonwealth Delaware"), FRONTIER
COMMUNICATIONS CORPORATION (formerly known as Citizens Communications Company),
a Delaware corporation ("Frontier" or in its capacity as guarantor, the
"Guarantor"), and THE BANK OF NEW YORK MELLON, a New York banking corporation,
as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee have heretofore executed and delivered
the Indenture dated as of July 18, 2003 (the "Base Indenture") relating to the
Company's 3 1/4% Convertible Notes due 2023 (collectively, the "Notes"), which
Base Indenture was amended and supplemented by the First Supplemental Indenture
dated as of March 8, 2007 heretofore executed and delivered by the Company,
Frontier and the Trustee (together with the Base Indenture, the "Indenture").
WHEREAS, the Company has entered into the Agreement and Plan of Merger
dated as of September 2, 2008 (the "Merger Agreement") between the Company and
Commonwealth Delaware, a newly-formed wholly owned subsidiary of Frontier,
pursuant to which the Company will be merged with and into Commonwealth Delaware
(the "Merger"), whereupon the separate existence of the Company shall cease, and
Commonwealth Delaware shall be the surviving corporation and will continue as a
wholly-owned subsidiary of Frontier;
WHEREAS, Section 12.01 of the Indenture provides that the Company shall
only consolidate or merge with or into any other Person or Persons (whether or
not affiliated with the Company) upon certain terms and upon the satisfaction of
certain conditions specified therein;
WHEREAS, Section 11.01(c) of the Indenture provides that, without the
consent of the holders of any Notes, the Company, when authorized by a
resolution of the Board of Directors, and the Trustee, at any time and from time
to time, may enter into a supplemental indenture to evidence the succession of
another Person to the Company, and the assumption by such successor Person of
the covenants, agreements and obligations of the Company in the Indenture
pursuant to Article 12 thereof;
WHEREAS, pursuant to Section 12.03 and Section 11.05 of the Indenture, the
Trustee has been provided with an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that the Merger complies with the provisions of
Article 12 of the Indenture and that this Second Supplemental Indenture complies
with the requirements of Article 11 of the Indenture and is permitted by the
Indenture; and
WHEREAS, all things necessary to make this Second Supplemental
Indenture a valid and legally binding agreement of the Company, Frontier,
Commonwealth Delaware and the Trustee, and a valid and legally binding
supplement to the Indenture, have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the parties hereby mutually
agree, for the equal and proportionate benefit of all Noteholders, as follows:
ARTICLE I
AUTHORIZATION; DEFINITIONS
Section 1.01 Second Supplemental Indenture. This Second Supplemental
Indenture is supplemental to, and is entered into in accordance with Section
11.01(c) of the Indenture, and except as modified, amended and supplemented by
this Second Supplemental Indenture, the provisions of the Indenture are in all
respects ratified and confirmed and shall remain in full force and effect.
Section 1.02 Capitalized Terms. Capitalized terms used herein but not
defined shall have the meanings assigned to them in the Indenture.
ARTICLE II
ASSUMPTION; EFFECTIVENESS;
CONVERSION TO LIMITED LIABILITY COMPANY
Section 2.01 Assumption of Covenants and Conditions. In accordance with
Section 12.01(ii) of the Indenture, Commonwealth Delaware hereby assumes, from
and after the consummation of the Merger, the due and punctual payment of the
principal and of Interest on all of the Notes, according to their tenor and the
due and punctual performance and observance of all the covenants and conditions
of the Indenture to be performed by the Company.
Section 2.02 Effectiveness. This Second Supplemental Indenture shall become
effective on the date and at the time the Merger becomes effective. Upon such
effectiveness, all references in the Indenture to the "Company" shall be to
Commonwealth Telephone Enterprises of Delaware, Inc. except as otherwise
provided in Section 2.03.
Section 2.03 Conversion to Limited Liability Company. Subsequent to the
effectiveness of this Second Supplemental Indenture, at such date and time that
Commonwealth Telephone Enterprises of Delaware, Inc. converts under Section 266
of the Delaware General Corporation Law into a limited liability company and is
renamed Commonwealth Telephone Enterprises, LLC (the "Conversion"), all
references in the Indenture to the "Company" shall be to Commonwealth Telephone
Enterprises, LLC. The Company shall promptly notify the Trustee of the
effectiveness of the Conversion and no further supplemental indenture shall be
entered into or required with respect to the Conversion.
ARTICLE III
MISCELLANEOUS
Section 3.01 Recitals. The recitals contained herein shall be taken as the
statements of the Company and the Trustee assumes no responsibility for their
correctness. The Trustee make no representation as to the validity or
sufficiency of this Second Supplemental Indenture except that the Trustee
represents that it is duly authorized to execute and deliver this Second
Supplemental Indenture and perform its obligations hereunder.
Section 3.02 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provisions of the Trust Indenture Act that
is required under such Act to be a part of and govern this Second Supplemental
Indenture, the Trust Indenture Act shall control. If any provision of this
Second Supplemental Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the Trust Indenture Act shall
be deemed to apply to this Second Supplemental Indenture as so modified or to be
excluded, as the case may be.
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Section 3.03 Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 3.04 Successors and Assigns. All covenants and agreements in this
Second Supplemental Indenture by the Company and Commonwealth Delaware shall
upon effectiveness bind Commonwealth Delaware and the successors and assigns of
Commonwealth Delaware, whether so expressed or not.
Section 3.05 Separability Clause. In case any provisions in this Second
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 3.06 Benefits of Second Supplemental Indenture. Nothing in this
Second Supplemental Indenture or in the Notes, express or implied, shall give to
any Person, other than the parties hereto and their respective successors
hereunder and the Noteholders, any benefit or any legal or equitable right,
remedy or claim under this Second Supplemental Indenture.
Section 3.07 Concerning the Trustee. The Trustee accepts the Indenture, as
supplemented by this Second Supplemental Indenture, and agrees to perform the
same upon the terms and conditions set forth therein as so supplemented.
Section 3.08 Concerning the Guarantor. The Guarantor accepts the Indenture,
as supplemented by this Second Supplemental Indenture, and agrees to perform the
same upon the terms and conditions set forth therein as so supplemented.
Section 3.09 Governing Law. This Second Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
Section 3.10 Execution of Counterparts. This Second 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.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the day and year first above written.
COMMONWEALTH TELEPHONE
ENTERPRISES, INC.
By: /s/ DAVID R. WHITEHOUSE
------------------------
Name: David R. Whitehouse
Title: Vice President and Treasurer
COMMONWEALTH TELEPHONE
ENTERPRISES OF DELAWARE, INC.
By: /s/ DAVID R. WHITEHOUSE
------------------------
Name: David R. Whitehouse
Title: Vice President and Treasurer
FRONTIER COMMUNICATIONS
CORPORATION
By: /s/ DAVID R. WHITEHOUSE
-------------------------
Name: David R. Whitehouse
Title: Senior Vice President and Treasurer
THE BANK OF NEW YORK MELLON,
as Trustee
By: /s/ MARY MISELIS
----------------------
Name: Mary Miselis
Title: Vice President
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