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Exhibit 4.1
CITADEL BROADCASTING COMPANY,
Issuer
CITADEL LICENSE, INC.,
Guarantor
and
THE BANK OF NEW YORK,
Trustee
--------------------
INDENTURE
Dated as of July 1, 1997
---------------------
$101,000,000
10-1/4% Senior Subordinated Notes due 2007
10-1/4% Series B Senior Subordinated Notes due 2007
--------------------------------------------------------------------------------
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CITADEL BROADCASTING COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF JULY 1, 1997
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1) .............................................................. 608
(a)(2) .............................................................. 608
(b) .............................................................. 609
Section 312(a) .............................................................. 701
(c) .............................................................. 702
Section 313(a) .............................................................. 703
(c) .............................................................. 703
Section 314(a)(4) .............................................................. 1010(a)
(c)(1) .............................................................. 102
(c)(2) .............................................................. 102
(e) .............................................................. 102
Section315(a) .............................................................. 601(a)
(b) .............................................................. 602
(c) .............................................................. 601(b)
(d) .............................................................. 601(c), 603
316(a)(last sentence) .............................................................. 101 ("Outstanding")
(a)(1)(A) .............................................................. 502, 512
(a)(1)(B) .............................................................. 513
(b) .............................................................. 508
(c) .............................................................. 104(d)
Section 317(a)(1) .............................................................. 503
(a)(2) .............................................................. 504
(b) .............................................................. 1003
Section 318(a) .............................................................. 111
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
PAGE
PARTIES...........................................................................................................1
RECITALS OF THE COMPANY...........................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions................................................................................... 1
Acquired Debt........................................................................ 2
Act ............................................................................ 2
Affiliate............................................................................ 2
Agent ............................................................................ 3
Asset Sale........................................................................... 3
Asset Sale Offer..................................................................... 3
Asset Swap........................................................................... 3
Authenticating Agent................................................................. 3
Bankruptcy Law....................................................................... 3
Banks ............................................................................ 4
Board of Directors................................................................... 4
Board Resolution..................................................................... 4
Business Day......................................................................... 4
Capital Stock........................................................................ 4
Capitalized Lease Obligation......................................................... 4
Change of Control.................................................................... 4
Change of Control Offer.............................................................. 5
Change of Control Payment............................................................ 5
Change of Control Purchase Date...................................................... 5
Citadel Communications............................................................... 5
Closing Date......................................................................... 5
Commission........................................................................... 5
Company ............................................................................ 5
Company Request or Company Order..................................................... 5
Consolidated Adjusted Net Income..................................................... 5
Consolidated Cash Flow............................................................... 6
Consolidated Cash Flow Ratio......................................................... 7
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Consolidated Fixed Charges........................................................... 7
Corporate Trust Office............................................................... 7
Credit Facility...................................................................... 7
Credit Facility Agent................................................................ 7
Custodian............................................................................ 8
Debt ............................................................................ 8
Default ............................................................................ 8
Defaulted Interest................................................................... 8
Depositary........................................................................... 8
Disinterested Director............................................................... 8
Disqualified Stock................................................................... 9
Event of Default..................................................................... 9
Excess Proceeds...................................................................... 9
Exchange Act......................................................................... 9
FCC ............................................................................ 9
Generally Accepted Accounting Principles or GAAP..................................... 9
guarantee............................................................................ 9
Hedging Obligations.................................................................. 10
Holder ............................................................................ 10
Indenture............................................................................ 10
Indenture Obligations................................................................ 10
Initial Notes........................................................................ 10
Initial Purchasers................................................................... 10
Interest Payment Date................................................................ 10
Investment........................................................................... 10
Legal Defeasance..................................................................... 11
License Subsidiary................................................................... 11
Lien ............................................................................ 11
Net Cash Proceeds.................................................................... 11
New Notes............................................................................ 11
Note Register and Note Registrar..................................................... 11
Notes ............................................................................ 11
Notes Exchange Offer................................................................. 12
Notes Exchange Offer Registration Statement.......................................... 12
Notes Registration Rights Agreement.................................................. 12
Notes Shelf Registration Statement................................................... 12
Offered Price........................................................................ 12
Offering Memorandum.................................................................. 12
Officers' Certificate................................................................ 12
Opinion of Counsel................................................................... 12
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Outstanding.......................................................................... 12
Pari Passu Debt...................................................................... 13
Paying Agent......................................................................... 13
Permitted Debt....................................................................... 13
Permitted Investments................................................................ 13
Person ............................................................................ 14
Predecessor Note..................................................................... 14
Public Equity Offering............................................................... 15
QIB ............................................................................ 15
Qualified Equity Interest............................................................ 15
Qualified Stock...................................................................... 15
Redemption Date...................................................................... 15
Redemption Price..................................................................... 15
Regular Record Date.................................................................. 15
Responsible Officer.................................................................. 15
Restricted Subsidiary................................................................ 15
Rule 144A............................................................................ 15
Securities Act....................................................................... 16
Senior Debt.......................................................................... 16
Significant Subsidiary............................................................... 16
Special Record Date.................................................................. 16
Specified Senior Debt................................................................ 16
Stated Maturity...................................................................... 16
Subordinated Debt.................................................................... 17
Subsidiary........................................................................... 17
Subsidiary Guarantor Senior Debt..................................................... 17
Subsidiary Notes Guarantee........................................................... 17
Subsidiary Notes Guarantor........................................................... 17
Trust Indenture Act or TIA........................................................... 17
Trustee ............................................................................ 18
Unrestricted Subsidiary.............................................................. 18
U.S. Government Obligations.......................................................... 18
Voting Stock......................................................................... 18
Voting Trust Agreement............................................................... 18
Weighted Average Life................................................................ 18
Wholly Owned Restricted Subsidiary................................................... 19
SECTION 102. Compliance Certificates and Opinions.......................................................... 19
SECTION 103. Form of Documents Delivered to Trustee........................................................ 19
SECTION 104. Acts of Holders............................................................................... 20
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SECTION 105. Notices, Etc., to Trustee, the Company and Subsidiary Notes
Guarantors........................................................................... 21
SECTION 106. Notice to Holders; Waiver..................................................................... 22
SECTION 107. Effect of Headings and Table of Contents...................................................... 22
SECTION 108. Successors and Assigns........................................................................ 23
SECTION 109. Separability Clause........................................................................... 23
SECTION 110. Benefits of Indenture......................................................................... 23
SECTION 111. Governing Law................................................................................. 23
SECTION 112. Legal Holidays................................................................................ 23
SECTION 113. No Personal Liability of Directors, Officers, Employees, Stockholders
or Incorporators..................................................................... 24
SECTION 114. Counterparts.................................................................................. 24
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally............................................................................... 24
SECTION 202. Restrictive Legends........................................................................... 25
SECTION 203. [INTENTIONALLY OMITTED]....................................................................... 27
SECTION 204. Form of Face of Note.......................................................................... 28
SECTION 205. Form of Reverse of Note....................................................................... 30
SECTION 206. Form of Trustee's Certificate of Authentication............................................... 38
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms............................................................................... 39
SECTION 302. Denominations................................................................................. 40
SECTION 303. Execution, Authentication, Delivery and Dating................................................ 40
SECTION 304. Temporary Notes............................................................................... 41
SECTION 305. Registration, Registration of Transfer and Exchange........................................... 42
SECTION 306. Book-Entry Provisions for the Global Note..................................................... 43
SECTION 307. Special Transfer Provisions................................................................... 44
SECTION 308. Form of Certificate to Be Delivered in Connection with Transfers to
Non-QIB Institutional Accredited Investors........................................... 47
SECTION 309. [INTENTIONALLY OMITTED]....................................................................... 49
SECTION 310. Mutilated, Destroyed, Lost and Stolen Notes................................................... 49
SECTION 311. Payment of Interest; Interest Rights Preserved................................................ 50
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SECTION 312. Persons Deemed Owners......................................................................... 51
SECTION 313. Cancellation.................................................................................. 51
SECTION 314. Computation of Interest....................................................................... 52
SECTION 315. CUSIP Numbers................................................................................. 52
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture....................................................... 52
SECTION 402. Application of Trust Money.................................................................... 53
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................................................. 54
SECTION 502. Acceleration of Maturity; Rescission and Annulment............................................ 55
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee............................... 56
SECTION 504. Trustee May File Proofs of Claim.............................................................. 57
SECTION 505. Trustee May Enforce Claims Without Possession of Notes........................................ 58
SECTION 506. Application of Money Collected................................................................ 58
SECTION 507. Limitation on Suits........................................................................... 59
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest............................................................................. 60
SECTION 509. Restoration of Rights and Remedies............................................................ 60
SECTION 510. Rights and Remedies Cumulative................................................................ 60
SECTION 511. Delay or Omission Not Waiver.................................................................. 60
SECTION 512. Control by Holders............................................................................ 61
SECTION 513. Waiver of Past Defaults....................................................................... 61
SECTION 514. Waiver of Stay or Extension Laws.............................................................. 61
SECTION 515. Undertaking for Costs......................................................................... 62
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities........................................................... 62
SECTION 602. Notice of Defaults............................................................................ 63
SECTION 603. Certain Rights of Trustee..................................................................... 64
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SECTION 604. Trustee Not Responsible for Recitals or Issuance of Notes..................................... 65
SECTION 605. May Hold Notes................................................................................ 65
SECTION 606. Money Held in Trust........................................................................... 65
SECTION 607. Compensation and Reimbursement................................................................ 66
SECTION 608. Corporate Trustee Required; Eligibility....................................................... 67
SECTION 609. Resignation and Removal; Appointment of Successor............................................. 67
SECTION 610. Acceptance of Appointment by Successor........................................................ 69
SECTION 611. Merger, Conversion, Consolidation or Succession to BusineSection.............................. 69
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE
SECTION 701. Company to Furnish Trustee Names and Addresses................................................ 70
SECTION 702. Disclosure of Names and Addresses of Holders.................................................. 70
SECTION 703. Reports by Trustee............................................................................ 70
ARTICLE EIGHT
MERGER, CONSOLIDATION, OR SALE OF ASSETS
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.......................................... 71
SECTION 802. Successor Substituted......................................................................... 72
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
SECTION 901. Supplemental Indentures Without Consent of Holders............................................ 72
SECTION 902. Supplemental Indentures with Consent of Holders............................................... 73
SECTION 903. Execution of Supplemental Indentures.......................................................... 74
SECTION 904. Effect of Supplemental Indentures............................................................. 74
SECTION 905. Conformity with Trust Indenture Act........................................................... 74
SECTION 906. Reference in Notes to Supplemental Indentures................................................. 74
SECTION 907. Notice of Supplemental Indentures............................................................. 75
SECTION 908. Effect on Senior Debt......................................................................... 75
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest.......................................... 75
SECTION 1002. Maintenance of Office or Agency.............................................................. 75
SECTION 1003. Money for Note Payments to Be Held in Trust.................................................. 76
SECTION 1004. Corporate Existence.......................................................................... 77
SECTION 1005. Payment of Taxes and Other Claims............................................................ 77
SECTION 1006. Maintenance of Properties.................................................................... 78
SECTION 1007. Insurance.................................................................................... 78
SECTION 1008. Compliance with Laws......................................................................... 78
SECTION 1009. Limitation on Debt........................................................................... 79
SECTION 1010. Limitation on Restricted Payments............................................................ 81
SECTION 1011. Purchase of Notes upon a Change of Control................................................... 85
SECTION 1012. Limitation on Certain Asset Sales............................................................ 87
SECTION 1013. Limitation on Asset Swaps.................................................................... 89
SECTION 1014. Limitation on Transactions with Affiliates................................................... 90
SECTION 1015. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.............................................................. 91
SECTION 1016. Limitation on Issuances and Sales of Capital Stock of Restricted
Subsidiaries......................................................................... 92
SECTION 1017. Limitation on Unrestricted Subsidiaries...................................................... 93
SECTION 1018. Limitation on Other Senior Subordinated Debt................................................. 93
SECTION 1019. Subsidiary Notes Guarantees.................................................................. 94
SECTION 1020. Limitation on Guarantees of Debt by Restricted Subsidiaries.................................. 94
SECTION 1021. Limitation on Liens.......................................................................... 94
SECTION 1022. Commission Reports and Reports to Holders.................................................... 95
SECTION 1023. Statement as to Compliance................................................................... 95
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Redemption................................................................................... 96
SECTION 1102. Applicability of Article..................................................................... 97
SECTION 1103. Election to Redeem; Notice to Trustee........................................................ 97
SECTION 1104. Selection by Trustee of Notes to Be Redeemed................................................. 97
SECTION 1105. Notice of Redemption......................................................................... 97
SECTION 1106. Deposit of Redemption Price.................................................................. 99
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SECTION 1107. Notes Payable on Redemption Date............................................................. 99
SECTION 1108. Notes Redeemed in Part....................................................................... 99
ARTICLE TWELVE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Legal Defeasance or Covenant
Defeasance...........................................................................100
SECTION 1202. Legal Defeasance and Discharge...............................................................100
SECTION 1203. Covenant Defeasance..........................................................................100
SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance........................................101
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions................................................102
SECTION 1206. Reinstatement................................................................................103
ARTICLE THIRTEEN
SUBSIDIARY NOTES GUARANTEES
SECTION 1301. Subsidiary Guarantees........................................................................103
SECTION 1302. Guaranty Absolute............................................................................104
SECTION 1303. Waivers .....................................................................................106
SECTION 1304. Subrogation..................................................................................107
SECTION 1305. No Waiver; Remedies..........................................................................107
SECTION 1306. Continuing Guaranty; No Right of Set-Off; Independent Obligation.............................107
SECTION 1307. Subsidiary Notes Guarantors May Consolidate, Etc., on Certain
Terms................................................................................108
SECTION 1308. Additional Subsidiary Notes Guarantors.......................................................108
SECTION 1309. Releases.....................................................................................109
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. Notes and Subsidiary Notes Guarantees Subordinate to Senior Debt.............................110
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc...............................................110
SECTION 1403. No Payment When Certain Senior Debt in Default...............................................111
SECTION 1404. Payment Permitted If No Default..............................................................113
SECTION 1405. Subrogation to Rights of Holders of Senior Debt..............................................113
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SECTION 1406. Provisions Solely to Define Relative Rights..................................................113
SECTION 1407. Trustee to Effectuate Subordination..........................................................114
SECTION 1408. No Waiver of Subordination Provisions........................................................114
SECTION 1409. Notice to Trustee............................................................................115
SECTION 1410. Reliance on Judicial Order or Certificate of Liquidation Agent...............................116
SECTION 1411. Trustee Not Fiduciary for Holders of Senior Debt.............................................116
SECTION 1412. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights...............................................................................116
SECTION 1413. Applicability to Paying Agents...............................................................117
SECTION 1414. Defeasance of this Article Fourteen..........................................................117
SECTION 1415. Subordination Provisions Controlling.........................................................117
SIGNATURES......................................................................................................118
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INDENTURE, dated as of July 1, 1997, among CITADEL
BROADCASTING COMPANY, a corporation duly organized and existing under the laws
of the State of Nevada (the "Company"), having its principal office at 000
Xxxxx Xxx Xxxxxx, Xxxxx, Xxxxxxx 00000, CITADEL LICENSE, INC., a wholly owned
subsidiary of the Company, as guarantor (the "Subsidiary Notes Guarantor"),
having its principal office at 000 Xxxxx Xxx Xxxxxx, Xxxxx, Xxxxxxx 00000, and
THE BANK OF NEW YORK, a New York banking corporation, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issuance
of its 10-1/4% Senior Subordinated Notes due 2007 (the "Initial Notes"), and
10-1/4% Series B Senior Subordinated Notes due 2007 (the "New Notes," and
together with the Initial Notes, the "Notes"), of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
Upon the effectiveness of the Notes Exchange Offer
Registration Statement (as defined herein) or the Notes Shelf Registration
Statement (as defined herein), this Indenture shall be subject to, and shall be
governed by, the provisions of the Trust Indenture Act of 1939, as amended,
that are required or deemed to be part of and to govern indentures qualified
thereunder.
All things necessary have been done to make the Notes, when
executed and duly issued by the Company and authenticated and delivered
hereunder by the Trustee or the Authenticating Agent, the valid obligations of
the Company and to make this Indenture a valid agreement of the Company in
accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
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(a) the terms defined in this Article have the meanings
assigned to them in this Article, and words in the singular include
the plural as well as the singular, and words in the plural include
the singular as well as the plural;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, or
defined by Commission rule and not otherwise defined herein have the
meanings assigned to them therein, and the terms "cash transaction"
and "self-liquidating paper," as used in TIA Section 311, shall have
the meanings assigned to them in the rules of the Commission adopted
under the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with Generally Accepted
Accounting Principles;
(d) 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;
(e) the word "or" is not exclusive; and
(f) provisions of this Indenture apply to successive events
and transactions.
Certain terms, used principally in Articles Two, Ten, Twelve,
Thirteen and Fourteen, are defined in those Articles.
"Acquired Debt" means Debt of a Person (a) existing at the
time such Person is merged with or into the Company or becomes a Subsidiary,
(b) assumed in connection with the acquisition of assets from such Person or
(c) secured by a Lien encumbering assets acquired from such Person.
"Act," when used with respect to any Holder, has the meaning
set forth in Section 104.
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the purposes
of this definition, "control," when used with respect to any specified Person,
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
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"Agent" means any Paying Agent, Authenticating Agent and Note
Registrar under this Indenture.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer")
by the Company or a Restricted Subsidiary, directly or indirectly, in one or a
series of related transactions, to any Person other than the Company or a
Restricted Subsidiary of (a) any Capital Stock of any of its Restricted
Subsidiaries, (b) all or substantially all of the properties and assets of the
Company and any of its Restricted Subsidiaries representing a division or line
of business or (c) any other properties or assets of the Company or any of its
Restricted Subsidiaries, other than in the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" does not include any
transfer of properties or assets (a) that is governed by the provisions of this
Indenture described under (i) Article Eight or (ii) Section 1013, (b) between
or among the Company and any of its Restricted Subsidiaries pursuant to
transactions that do not violate any other provision of this Indenture, (c) to
an Unrestricted Subsidiary, if permitted under Section 1010, (d) representing
obsolete or permanently retired equipment, (e) the gross proceeds of which
(exclusive of indemnities) do not exceed $100,000 for any particular item or
$500,000 in the aggregate for any fiscal year or (f) the transfer of up to
$500,000 of property and assets, including cash, to a joint venture in which
the Company or a Restricted Subsidiary has an equity interest, which joint
venture is engaged in the internet service provider business.
"Asset Sale Offer" has the meaning set forth in Section 1012
herein.
"Asset Swap" means the execution of one or more definitive
agreements, subject only to FCC approval, if applicable, and other customary
closing conditions, which the Company in good faith believes shall be
satisfied, for a substantially concurrent purchase and sale, or exchange, or
"deferred exchange" (for no more than 180 days) under Section 1031(a)(3) of the
Internal Revenue Code of 1986, as amended, of assets used in the broadcast or
related businesses between the Company or any of its Restricted Subsidiaries
and one or more other Persons or groups of affiliated Persons; provided that
any amendment to or waiver of any closing conditions that individually or in
the aggregate are material to the Asset Swap shall be deemed to be a new Asset
Swap.
"Authenticating Agent" means the Person appointed, if any, by
the Trustee as an authenticating agent pursuant to the last paragraph of
Section 303.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy
Code of 1978, as amended, or any similar United States federal or state or
foreign law relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to,
succession to or change in any such law.
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"Banks" means the banks and other financial institutions that
from time to time are lenders under the Credit Facility.
"Board of Directors" means, with respect to any Person,
either the board of directors of such Person or any duly authorized committee
thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the secretary or an assistant secretary of such
Person to have been duly adopted by the Board of Directors of such Person and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in The
City of New York are authorized or obligated by law or executive order to
close.
"Capital Stock" of any Person means any and all shares,
interests, partnership interests, participations, rights in or other
equivalents (however designated) of such Person's equity (however designated).
"Capitalized Lease Obligation" means, with respect to any
Person, an obligation incurred or assumed under or in connection with any
capital lease of real or personal property that, in accordance with GAAP, has
been recorded as a capitalized lease on the balance sheet of such Person.
"Change of Control" means the occurrence of any of the
following events:
(a) Any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than Xxxxxxxx X.
Xxxxxx, Xxxxx X. Xxxxx, Xxx X. xxx Xxxxxxxxx, Xxxxx, Xxxxxxxx &
Company, ABRY Broadcast Partners II, L.P., ABRY/Citadel Investment
Partners, L.P., The Endeavour Capital Fund Limited Partnership and any
trustee, in its capacity as trustee under the Voting Trust Agreement
or Citadel Communications, is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than a majority of the voting power of
all classes of Voting Stock of the Company;
(b) During any consecutive two-year period, individuals who
at the beginning of such period constituted the Board of Directors of
the Company (together with any new directors whose election to such
Board of Directors, or whose nomination for election by the
stockholders of the Company, was approved by a vote of at least 66-2/3%
of the
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directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office; or
(c) The Company is liquidated or dissolved or adopts a
plan of liquidation or dissolution.
"Change of Control Offer" has the meaning set forth in
Section 1011 herein.
"Change of Control Payment" has the meaning set forth in
Section 1011 herein.
"Change of Control Purchase Date" has the meaning set forth
in Section 1011 herein.
"Citadel Communications" means Citadel Communications
Corporation, a Nevada corporation, and any successors thereof.
"Closing Date" means the date on which the Notes are
originally issued under this Indenture.
"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 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 at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture, until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company (i) by its chairman, a
vice-chairman, its president or any vice president and (ii) by its treasurer,
an assistant treasurer, its secretary or an assistant secretary and delivered
to the Trustee; provided, however, that such written request or order may be
signed by any two of the officers or directors listed in clause (i) above in
lieu of being signed by one of such officers or directors listed in such clause
(i) and one of the officers listed in clause (ii) above.
"Consolidated Adjusted Net Income" means, for any period, the
net income (or net loss) of the Company and its Restricted Subsidiaries for
such period as determined on a consolidated basis in accordance with GAAP,
adjusted to the extent included in calculating such net income or loss by
excluding (a) any net after-tax extraordinary gains or losses (less all fees
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and expenses relating thereto), (b) any net after-tax gains or losses (less all
fees and expenses relating thereto) attributable to Asset Sales, (c) the
portion of net income (or loss) of any Person (other than the Company or a
Restricted Subsidiary), including Unrestricted Subsidiaries, in which the
Company or any of its Restricted Subsidiaries has an ownership interest, except
to the extent of the amount of dividends or other distributions actually paid
to the Company or any of its Restricted Subsidiaries in cash during such
period, (d) the net income (or loss) of any Person combined with the Company or
any of its Restricted Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the date of combination, and (e) the net
income (but not the net loss) of any of its Restricted Subsidiaries to the
extent that the declaration or payment of dividends or similar distributions by
such Restricted Subsidiary is at the date of determination restricted, directly
or indirectly, except to the extent that such net income could be paid to the
Company or a Restricted Subsidiary thereof; provided that, if any Restricted
Subsidiary is not a Wholly Owned Restricted Subsidiary, Consolidated Adjusted
Net Income shall be reduced (to the extent not otherwise reduced in accordance
with GAAP) by an amount equal to (A) the amount of the Consolidated Adjusted
Net Income otherwise attributable to such Restricted Subsidiary multiplied by
(B) the quotient of (1) the number of shares of outstanding common stock of
such Restricted Subsidiary not owned on the last day of such period by the
Company or any of its Restricted Subsidiaries divided by (2) the total number
of shares of outstanding common stock of such Restricted Subsidiary on the last
day of such period.
"Consolidated Cash Flow" means, for any period, the sum of,
without duplication, Consolidated Adjusted Net Income for such period, plus
(or, in the case of clause (d) below, plus or minus) the following items to the
extent included in computing Consolidated Adjusted Net Income for such period:
(a) the aggregate interest expense and preferred stock dividends of the Company
and its Restricted Subsidiaries for such period, plus (b) the provision for
federal, state, local and foreign income taxes of the Company and its
Restricted Subsidiaries for such period, plus (c) the aggregate depreciation
and amortization expense of the Company and any of its Restricted Subsidiaries
for such period, plus (d) any other non-cash charges for such period, and minus
non-cash credits for such period, other than non-cash charges or credits
resulting from changes in prepaid assets or accrued liabilities in the ordinary
course of business; provided that income tax expense, interest expense and
preferred stock dividends, depreciation and amortization expense, and non-cash
charges and credits of a Restricted Subsidiary shall be included in
Consolidated Cash Flow only to the extent (and in the same proportion) that the
net income of such Restricted Subsidiary was included in calculating
Consolidated Adjusted Net Income for such period. Solely for purposes of
determining whether the Company could incur Debt pursuant to the first
paragraph of Section 1009, if the Company is permitted to give pro forma effect
to an In-Market Acquisition of a radio station pursuant to clause (iii) of the
second paragraph of such Section, such calculation may also give pro forma
effect to projected quantifiable improvements in operating results of such
radio station due to cost reductions calculated in good faith by the Company
and certified by an Officers' Certificate filed with the Trustee. As used in
the preceding sentence, the term "In-Market Acquisition" means the acquisition
of a radio station or group of radio stations serving a metropolitan
statistical area in
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which the Company or its Subsidiaries has owned, or has operated under a local
marketing agreement, one or more radio stations for at least the preceding six
months.
"Consolidated Cash Flow Ratio" means, at any date, the ratio
of (i) the aggregate amount of Debt of the Company and its Restricted
Subsidiaries on a consolidated basis as of the end of the immediately preceding
four fiscal quarters for which internal financial statements of the Company are
available (the "Reference Period") to (ii) the aggregate amount of Consolidated
Cash Flow for such Reference Period.
"Consolidated Fixed Charges" means, for any period, without
duplication, the sum of (a) the amount which, in conformity with GAAP, would be
set forth opposite the caption "interest expense" (or any like caption) on a
consolidated statement of operations of the Company and its Restricted
Subsidiaries for such period, including, without limitation, (i) amortization
of debt discount, (ii) the net cost of interest rate contracts (including
amortization of discounts), (iii) the interest portion of any deferred payment
obligation, (iv) amortization of debt issuance costs, (v) the interest
component of Capitalized Lease Obligations of the Company and any of its
Restricted Subsidiaries, and (vi) the portion of any rental obligation of the
Company and any of its Restricted Subsidiaries in respect of any sale and
leaseback transaction allocable during such period to interest expense
(determined as if it were treated as a Capitalized Lease Obligation), plus (b)
all interest on any Debt of any other Person guaranteed by the Company or any
of its Restricted Subsidiaries; provided, however, that Consolidated Fixed
Charges shall not include any gain or loss from extinguishment of debt,
including any write-off of debt issuance costs.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at 000 Xxxxxxx Xxxxxx--00X, Xxx Xxxx, XX 00000, except
that with respect to presentation of Notes for payment or for registration of
transfer or exchange, such term shall mean any office or agency of the Trustee
at which, at any particular time, its corporate agency business shall be
conducted.
"Covenant Defeasance" has the meaning set forth in Section
1203 herein.
"Credit Facility" means the loan agreement dated October 9,
1996 among the Company, the Banks and the Credit Facility Agent, as amended,
and as such agreement may be amended, restated, supplemented, replaced or
refinanced or otherwise modified from time to time.
"Credit Facility Agent" means the then acting Agent as
defined in and under the Credit Facility or any successor thereto.
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"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent, (a) every obligation of such Person for money
borrowed, (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (d) every obligation of such
Person issued or assumed as the deferred purchase price of property or
services, (e) every Capitalized Lease Obligation of such Person, (f) all
Disqualified Stock of such Person valued at its maximum fixed repurchase price,
plus accumulated and unpaid dividends, (g) all Hedging Obligations of such
Person, and (h) every obligation of the types referred to in clauses (a)
through (g) of another Person and all dividends of another Person (i) the
payment of which, in either case, such Person has guaranteed or (ii) which is
secured by any Lien on any property or asset of such Person, the amount of such
Debt being deemed to be the lesser of the actual amount of the guarantee or the
value of such property or asset subject to such Lien, as the case may be, and
the amount of the Debt so guaranteed or secured, as the case may be. For
purposes of this definition, the "maximum fixed repurchase price" of any
Disqualified Stock that does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were repurchased on any date on which Debt is required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Stock, such fair market
value shall be determined reasonably and in good faith by the board of
directors of the issuer of such Disqualified Stock. Notwithstanding the
foregoing, trade accounts payable and accrued liabilities arising in the
ordinary course of business, any liability for federal, state or local taxes or
other taxes owed by such Person and the Exchangeable Preferred Stock shall not
be considered Debt for purposes of this definition. The amount outstanding at
any time of any Debt issued with original issue discount is the aggregate
principal amount at maturity of such Debt, less the remaining unamortized
portion of the original issue discount of such Debt at such time, as determined
in accordance with GAAP.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 311
herein.
"Depositary" means The Depository Trust Company, its nominees
and successors.
"Disinterested Director" means, with respect to any
transaction or series of transactions in respect of which the Board of
Directors is required to deliver a resolution of the Board of Directors, to
make a finding or otherwise take action under this Indenture, a member
20
9
of the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of
transactions.
"Disqualified Stock" means any class or series of Capital
Stock that, either by its terms or by the terms of any security into which it
is convertible or exchangeable or by contract or otherwise, (a) is, or upon the
happening of an event or passage of time would be, required to be redeemed
prior to one year after the final Stated Maturity of the Notes, (b) is
redeemable at the option of the holder thereof at any time prior to one year
after such final Stated Maturity or (c) at the option of the holder thereof, is
convertible into or exchangeable for debt securities at any time prior to one
year after such final Stated Maturity; provided that any Capital Stock that
would not constitute Disqualified Stock but for provisions thereof giving
holders thereof the right to cause the issuer thereof to repurchase or redeem
such Capital Stock upon the occurrence of an "asset sale" or "change of
control" occurring prior to one year after the Stated Maturity of the Notes
shall not constitute Disqualified Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock are no more favorable to
the holders of such Capital Stock than the provisions contained in Sections
1011 and 1012 of this Indenture and such Capital Stock specifically provides
that the issuer shall not repurchase or redeem any such Capital Stock pursuant
to such provision prior to the Company's repurchase of such Notes as are
required to be repurchased pursuant to Sections 1011 and 1012 herein.
"Event of Default" has the meaning set forth in Section 501
herein.
"Excess Proceeds" has the meaning set forth in Section 1012
herein.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchangeable Preferred Stock" means the 13-1/4% Series A
Exchangeable Preferred Stock, no par value, of the Company.
"FCC" means the Federal Communications Commission, which has
jurisdiction over the ownership, operation and sale of the Company's broadcast
stations.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, that are in effect on the Closing Date.
"guarantee" means, as applied to any obligation, (a) a
guarantee (other than by endorsement of negotiable instruments for collection
in the ordinary course of business), direct or indirect, in any manner, of any
part or all of such obligation and (b) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any way
the payment or performance (or payment of damages in the event of
non-performance) of all or any
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part of such obligation, including, without limitation, the payment of amounts
drawn down under letters of credit.
"Hedging Obligations" means the obligations of any Person
under (a) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements and (b) other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or the
value of foreign currencies.
"Holder" means the Person in whose name a Note is registered
in the Note Register.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Indenture Obligations" means the obligations of the Company
and any other obligor hereunder or under the Notes, including the Subsidiary
Notes Guarantors, to pay principal of (and premium, if any) and interest on the
Notes when due and payable at maturity, and all other amounts due or to become
due under or in connection with this Indenture, the Notes and the performance
of all other obligations to the Trustee (including all amounts due to the
Trustee under Section 607 hereof) and the Holders under this Indenture and the
Notes, according to the terms hereof and thereof.
"Initial Notes" has the meaning set forth in the recitals to
this Indenture.
"Initial Purchasers" means Prudential Securities
Incorporated, NationsBanc Capital Markets, Inc. and BancBoston Securities Inc.,
as purchasers of the Initial Notes.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Investment" (in any Person) means (a) directly or
indirectly, any advance, loan or other extension of credit (including, without
limitation, by way of guarantee or similar arrangement) or capital contribution
to any Person, the purchase or other acquisition of any stock, bonds, notes,
debentures or other securities issued by such Person or the acquisition (by
purchase or otherwise) of all or substantially all of the business or assets of
such Person or the making of any investment in such Person, (b) the designation
of any Restricted Subsidiary as an Unrestricted Subsidiary and (c) the transfer
of any assets or properties from the Company or a Restricted Subsidiary to any
Unrestricted Subsidiary, other than the transfer of assets or properties made
in the ordinary course of business. Investments shall exclude extensions of
trade credit on commercially reasonable terms in accordance with normal trade
practices.
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"Legal Defeasance" has the meaning set forth in Section 1202
herein.
"License Subsidiary" means Citadel License, Inc.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, preference, priority or other encumbrance upon or with respect
to any property of any kind, real or personal, movable or immovable, now owned
or hereafter acquired. A Person shall be deemed to own subject to a Lien any
property that such Person has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement.
"Net Cash Proceeds" means, with respect to any Asset Sale,
the proceeds thereof in the form of cash or cash equivalents, including
payments in respect of deferred payment obligations when received in the form
of, or stock or other assets when disposed of for, cash or cash equivalents
(except to the extent that such obligations are financed or sold with recourse
to the Company or any of its Restricted Subsidiaries), net of (a) brokerage
commissions and other fees and expenses (including fees and expenses of legal
counsel and investment banks) related to such Asset Sale, (b) provisions for
all taxes payable as a result of such Asset Sale, (c) payments made to retire
Debt where payment of such Debt is secured by the assets that are the subject
of such Asset Sale, (d) amounts required to be paid to any Person (other than
the Company or any of its Restricted Subsidiaries) owning a beneficial interest
in the assets that are subject to the Asset Sale and (e) appropriate amounts to
be provided by the Company or any of its Restricted Subsidiaries, as the case
may be, as a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by the seller after such Asset
Sale, including pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"New Notes" has the meaning stated in the first recital of
this Indenture and refers to any New Notes containing terms substantially
identical to the Initial Notes (except that (i) such New Notes shall not
contain terms with respect to transfer restrictions and shall be registered
under the Securities Act, and (ii) certain provisions relating to an increase
in the stated rate of interest thereon shall be eliminated) that are issued and
exchanged for the Initial Notes in accordance with the Notes Exchange Offer, as
provided for in the Notes Registration Rights Agreement and this Indenture.
"Note Register" and "Note Registrar" have the respective
meanings set forth in Section 305 herein.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture.
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12
"Notes Exchange Offer" means the offer by the Company to the
Holders of the Initial Notes to exchange all of the Initial Notes for New
Notes, as provided for in the Notes Registration Rights Agreement.
"Notes Exchange Offer Registration Statement" means the Notes
Exchange Offer Registration Statement as defined in the Notes Registration
Rights Agreement.
"Notes Registration Rights Agreement" means the Notes
Registration Rights Agreement, dated as of July 3, 1997, among the Company, the
Subsidiary Notes Guarantors and the Initial Purchasers.
"Notes Shelf Registration Statement" means the Notes Shelf
Registration Statement as defined in the Notes Registration Rights Agreement.
"Offered Price" has the meaning set forth in Section 1012
herein.
"Offering Memorandum" means the Offering Memorandum dated
June 30, 1997 with respect to the offering of, inter alia, the Notes.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two officers of the Company, one of whom must be the
principal executive officer, the principal financial officer, the treasurer or
the principal accounting officer of the Company that meets the requirements set
forth in Section 102.
"Opinion of Counsel" means a written opinion of counsel,
which and who are reasonably acceptable to, and addressed to, the Trustee
complying with the requirements of Section 102. Unless otherwise required by
the TIA, such legal counsel may be an employee of or counsel to the Company or
the Trustee.
"Outstanding," when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Notes; provided that, if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
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13
(iii) Notes, except to the extent provided in Sections 1202
and 1203, with respect to which the Company has effected Legal
Defeasance and/or Covenant Defeasance as provided in Article Twelve;
and
(iv) Notes in exchange for or in lieu of which other Notes
(including pursuant to Section 310) have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser
in whose hands the Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company, any Subsidiary Notes Guarantor or any other obligor upon the Notes
or any Affiliate of the Company, any Subsidiary Notes Guarantor or such other
obligor shall be disregarded and deemed not to be Outstanding (provided that,
in connection with any offer by the Company or any obligor to purchase the
Notes, Notes tendered for purchase shall be deemed to be Outstanding and held
by the tendering Holder until the date of purchase), except that, in
determining whether the Trustee shall be protected in making such calculation
or in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes which the Trustee actually knows to be so owned
shall be so disregarded. Notes 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 Notes and
that the pledgee is not the Company, any Subsidiary Notes Guarantor or any
other obligor upon the Notes or any Affiliate of the Company, any Subsidiary
Notes Guarantor or such other obligor.
"Pari Passu Debt" means Debt of the Company that ranks pari
passu in right of payment with the Notes.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (and
premium, if any) or interest on any Notes on behalf of the Company.
"Permitted Debt" has the meaning set forth in Section 1009.
"Permitted Investments" means any of the following:
(a) Investments in (i) securities with a maturity of one year
or less issued or directly and fully guaranteed or insured by the
United States or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support
thereof); (ii) certificates of deposit, time deposits, overnight bank
25
14
deposits or bankers' acceptances with a maturity of 270 days or less
of any financial institution that is a member of the Federal Reserve
System having combined capital and surplus of not less than
$500,000,000; and (iii) commercial paper with a maturity of 270 days
or less issued by a corporation that is not an Affiliate of the
Company and is organized under the laws of any state of the United
States or the District of Columbia and having the highest rating
obtainable from Xxxxx'x Investors Service, Inc. or Standard & Poor's
Ratings Services.
(b) Investments by the Company or any of its Restricted
Subsidiaries in another Person, if as a result of such Investment (i)
such other Person becomes a Restricted Subsidiary that is a Subsidiary
Notes Guarantor or (ii) such other Person is merged or consolidated
with or into, or transfers or conveys all or substantially all of its
assets to, the Company or a Restricted Subsidiary that is a Subsidiary
Notes Guarantor.
(c) Investments by the Company or any of its Restricted
Subsidiaries in a Subsidiary Notes Guarantor and Investments by any
Restricted Subsidiary in the Company.
(d) Investments in assets owned or used in the ordinary
course of business.
(e) Investments in existence on the Closing Date.
(f) Promissory notes received as a result of Asset Sales
permitted under Section 1012.
(g) Direct or indirect loans to employees, or to a trustee
for the benefit of such employees, of the Company or any of its
Restricted Subsidiaries in an aggregate amount outstanding at any time
not exceeding $1,000,000.
(h) Investments by the Company or any of its Restricted
Subsidiaries in a joint venture that is engaged in the internet
service provider business in an aggregate amount outstanding at any
time not exceeding $500,000.
(i) Other Investments that do not exceed $2,000,000 at any
one time outstanding.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Predecessor Note" of any particular Note means every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purposes
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15
of this definition, any Note authenticated and delivered under Section 310 in
exchange for a mutilated, lost, destroyed or stolen Note.
"Public Equity Offering" means an underwritten public
offering of Qualified Equity Interests of either (a) the Company or (b) Citadel
Communications the net proceeds from which (after deducting any underwriting
discounts and commissions) are used by Citadel Communications to purchase
Qualified Equity Interests of the Company; provided that, in either case, such
net proceeds exceed $10,000,000.
"QIB" means a "Qualified Institutional Buyer" under Rule
144A.
"Qualified Equity Interest" means any Qualified Stock and all
warrants, options or other rights to acquire Qualified Stock (but excluding any
debt security that is convertible into or exchangeable for Capital Stock).
"Qualified Stock" of any Person means any and all Capital
Stock of such Person, other than Disqualified Stock.
"Redemption Date," when used with respect to any Note to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the June 15 or December 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors, the chairman
or any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above-designated officers,
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
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"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Senior Debt" means the principal of and premium, if any, and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, whether or not
allowed) and other amounts due on or in connection with any Debt of the Company
(other than the Notes or Pari Passu Debt), whether outstanding on the Closing
Date or thereafter incurred, unless, in the case of any particular Debt, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Debt shall be subordinate in right of
payment to any Debt or other general unsecured obligations of the Company.
Without limiting the generality of the foregoing, "Senior Debt" includes the
principal of and premium, if any, fees and interest (including interest
accruing after the occurrence of an event of default or after the filing of a
petition initiating any proceeding pursuant to any Bankruptcy Law, whether or
not allowed) on all obligations of every nature of the Company from time to
time owed to the Banks under the Credit Facility. Notwithstanding the
foregoing, "Senior Debt" shall not include (a) Debt that is Disqualified Stock,
(b) Debt consisting of trade payables, (c) Debt of the Company to a Subsidiary
or any other Affiliate of the Company or any of such Affiliate's Subsidiaries
and (d) that portion of any Debt that, at the time of the incurrence, is
incurred by the Company in violation of this Indenture, other than any Debt
incurred under the Credit Facility not in excess of $150,000,000 (less any
amounts applied to the permanent reduction of such Debt pursuant to Section
1012) if the Company has certified to the Credit Facility Agent, at the time
such Debt is incurred, that the Company is permitted to incur such Debt under
this Indenture.
"Significant Subsidiary" means any Restricted Subsidiary of
the Company that, together with its Subsidiaries, (a) for the most recent
fiscal year of the Company, accounted for more than 10% of the consolidated net
sales of the Company and its Restricted Subsidiaries, (b) as of the end of such
fiscal year, was the owner of more than 10% of the consolidated assets of the
Company and its Restricted Subsidiaries, in the case of either (a) or (b), as
set forth on the most recently available consolidated financial statements of
the Company for such fiscal year, (c) was organized or acquired after the
beginning of such fiscal year and would have been a Significant Subsidiary if
it had been owned during the entire fiscal year or (d) holds one or more
licenses material to the Company's business.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 311.
"Specified Senior Debt" means (i) all Senior Debt under the
Credit Facility and (ii) any other issue of Senior Debt having a principal
amount of at least $10,000,000.
"Stated Maturity" means, when used with respect to any Note
or any installment of interest thereon, the date specified in such Note as the
fixed date on which the principal of
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such Note or such installment of interest is due and payable, and, when used
with respect to any other Debt, means the date specified in the instrument
governing such Debt as the fixed date on which the principal of such Debt or
any installment of interest thereon is due and payable.
"Subordinated Debt" means Debt of the Company that is
subordinated in right of payment to the Notes.
"Subsidiary" means any Person a majority of the equity
ownership or Voting Stock of which is at the time owned, directly or
indirectly, by the Company and/or one or more other Subsidiaries of the
Company.
"Subsidiary Guarantor Senior Debt" means, as to any
Subsidiary Notes Guarantor, the principal of and premium, if any, and interest
on (including interest accruing after the filing of a petition initiating any
proceeding pursuant to any Bankruptcy Law, whether or not allowed) and other
amounts due on or in connection with any Debt of such Subsidiary Notes
Guarantor (other than the Subsidiary Notes Guarantee made by such Subsidiary
Notes Guarantor), whether outstanding on the Closing Date or thereafter
incurred, unless, in the case of any particular Debt, the instrument creating
or evidencing the same or pursuant to which the same is outstanding expressly
provides that such Debt shall be subordinate in right of payment to any Debt or
other general unsecured obligations of such Subsidiary Notes Guarantor.
Notwithstanding the foregoing, "Subsidiary Guarantor Senior Debt" shall not
include (a) Debt that is Disqualified Stock, (b) Debt consisting of trade
payables, (c) Debt of such Subsidiary Notes Guarantor to the Company or any
Subsidiary or any other Affiliate of the Company or any of such Affiliate's
Subsidiaries and (d) that portion of any Debt that, at the time of the
incurrence, is incurred by such Subsidiary Notes Guarantor in violation of this
Indenture, other than any Debt incurred under the Credit Facility not in excess
of $150,000,000 (less any amounts applied to the permanent reduction of such
Debt pursuant to Section 1012) if the Company has certified to the Credit
Facility Agent, at the time such Debt is incurred, that the Subsidiary Notes
Guarantor is permitted to incur such Debt under this Indenture.
"Subsidiary Notes Guarantee" means a guarantee of the Notes
by a Restricted Subsidiary in accordance with the provisions of this Indenture.
"Subsidiary Notes Guarantor" means the License Subsidiary and
each other Restricted Subsidiary that issues a Subsidiary Notes Guarantee as
described in Article Thirteen herein.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force on the date as of which this Indenture was executed, except
as provided in Section 905.
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"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means (a) any Subsidiary that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary in accordance with Section 1017 and (b) any Subsidiary of an
Unrestricted Subsidiary.
"U.S. Government Obligations" means obligations that are (a)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (b) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with
respect to any such U.S. Government Obligations or a specific payment of
principal of or interest on any such U.S. Government Obligations held by such
custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the U.S.
Government Obligations evidenced by such depository receipt.
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of a corporation (irrespective of whether or not, at the
time, stock of any other class or classes has, or might have, voting power by
reason of the happening of any contingency).
"Voting Trust Agreement" means that certain Voting Trust
Agreement dated as of March 17, 1997 by and among Citadel Communications, ABRY
Broadcast Partners II, L.P., ABRY/Citadel Investment Partners, L.P.,
Xxxxxxxxxxx Xxxx, as the initial Trustee thereunder and J. Xxxxxx Xxxxxxxx and
Xxxxxx Xxxx, each as an initial Back-Up Trustee thereunder, as amended from
time to time.
"Weighted Average Life" means, as of the date of
determination with respect to any Debt or Disqualified Stock, the quotient
obtained by dividing (a) the sum of the products of (i) the number of years
from the date of determination to the date or dates of each successive
scheduled principal or liquidation value payment of such Debt or Disqualified
Stock, respectively, multiplied by (ii) the amount of each such principal or
liquidation value payment by (b) the sum of all such principal or liquidation
value payments.
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"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary, all of the outstanding voting securities (other than directors'
qualifying shares or an immaterial number of shares required to be owned by
other Persons pursuant to applicable law) of which are owned, directly or
indirectly, by the Company.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company and any
Subsidiary Notes Guarantor and any other obligor on the Notes (if applicable)
shall furnish to the Trustee an Officers' Certificate in form and substance
reasonably acceptable to the Trustee stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) 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, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual
or such firm, he or it has made such examination or investigation as
is necessary to enable him or it to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters
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20
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company, any
Subsidiary Notes Guarantor or other obligor on the Notes may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company, any Subsidiary Notes
Guarantor or other obligor on the Notes stating that the information with
respect to such factual matters is in the possession of the Company, any
Subsidiary Notes Guarantor or other obligor on the Notes unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in Person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section 104.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
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21
(c) The principal amount and serial numbers of Notes held by
any Person, and the date of holding the same, shall be proved by the Note
Register.
(d) If the Company or any Subsidiary Notes Guarantor shall
solicit from the Holders of Notes any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company or any such
Subsidiary Notes Guarantor (as the case may be) may, at its option, by or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company or any such
Subsidiary Notes Guarantor (as the case may be) shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of Outstanding Notes
have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Notes shall be computed as of such record date; provided that no
such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
(including in accordance with Section 310) in respect of anything done, omitted
or suffered to be done by the Trustee, any Paying Agent or the Company or any
Subsidiary Notes Guarantor in reliance thereon, whether or not notation of such
action is made upon such Note.
SECTION 105. NOTICES, ETC., TO TRUSTEE, THE COMPANY AND
SUBSIDIARY NOTES GUARANTORS.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company or any
Subsidiary Notes Guarantor or any other obligor on the Notes shall be
sufficient for every purpose hereunder if made, given, furnished or
delivered in writing and mailed, first-class
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22
postage prepaid, or delivered by recognized overnight courier, to or
with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration; or
(2) the Company or any Subsidiary Notes Guarantor by the
Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made, given,
furnished or delivered, in writing, or mailed, first-class postage
prepaid, or delivered by recognized overnight courier, to the Company
or such Subsidiary Notes Guarantor addressed to it at the address of
its principal office specified in the first paragraph of this
Indenture, or at any other address previously furnished in writing to
the Trustee by the Company or such Subsidiary Notes Guarantor.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to
Holders by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to 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. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice. 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.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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23
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
and any Subsidiary Notes Guarantor and their Subsidiaries shall bind their
successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person (other than the parties hereto and their
successors hereunder, any Paying Agent, the Holders and the holders of Senior
Debt) any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. GOVERNING LAW.
THIS INDENTURE, THE NOTES AND THE SUBSIDIARY NOTES GUARANTEES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK. UPON THE EFFECTIVENESS OF THE NOTES EXCHANGE OFFER REGISTRATION
STATEMENT OR THE NOTES SHELF REGISTRATION STATEMENT, THIS INDENTURE SHALL BE
SUBJECT TO, AND GOVERNED BY, THE PROVISIONS OF THE TRUST INDENTURE ACT OF 1939,
AS AMENDED, THAT ARE REQUIRED OR DEEMED TO BE PART OF AND TO GOVERN INDENTURES
QUALIFIED THEREUNDER.
SECTION 112. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, any date
established for payment of Defaulted Interest pursuant to Section 311 or
Redemption Date or Stated Maturity or other maturity of any Note shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Notes) payment of principal (or premium, if any) or interest 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 Interest Payment Date or date
established for payment of Defaulted Interest pursuant to Section 311,
Redemption Date, or at the Stated Maturity or other maturity; provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or date established for payment of Defaulted Interest pursuant
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to Section 311, Stated Maturity or other maturity, as the case may be, to the
next succeeding Business Day.
SECTION 113. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES, STOCKHOLDERS OR INCORPORATORS.
No director, officer, employee, incorporator or stockholders,
as such, of the Company or any Subsidiary Notes Guarantor shall have any
liability for any obligations of the Company or such Subsidiary Notes Guarantor
under the Notes, this Indenture or any Subsidiary Notes Guarantee or for any
claim based on, in respect of, or by reason of, such obligations or their
creations. Each Holder by accepting a Note waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of the Notes.
SECTION 114. COUNTERPARTS.
This Indenture may be executed in any number of counterparts,
each of which shall be original; but such counterparts shall together
constitute but one and the same instrument.
ARTICLE TWO
NOTE FORMS
SECTION 201. FORMS GENERALLY.
The Notes and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such Notes,
as evidenced by their execution of the Notes. Any portion of the text of any
Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note. Each Note shall be dated the date of its
authentication.
The definitive Notes shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Notes, as evidenced
by their execution of such Notes.
Initial Notes offered and sold to "Qualified Institutional
Buyers" (as defined in Rule 144A in reliance on the exemption from the
registration requirements of the Securities Act provided by Rule 144A) shall
initially be issued in the form of one permanent global Note
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25
substantially in the form set forth in Sections 204 and 205 (the "Global Note")
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold to "accredited investors" (as
defined in Rule 501(a)(1), (2), (3) and (7) under the Securities Act) who are
not Qualified Institutional Buyers shall initially be issued in the form of
permanent certificated Notes in registered form in substantially the form set
forth in Sections 204 and 205 (the "Certificated Notes").
SECTION 202. RESTRICTIVE LEGENDS.
Unless and until (i) an Initial Note is sold under a Notes
Shelf Registration Statement or (ii) an Initial Note is exchanged for a New
Note in connection with an effective Notes Exchange Offer Registration
Statement, in each case pursuant to the Notes Registration Rights Agreement,
each such Global Note and Certificated Note shall bear the following legend
(the "Private Placement Legend") on the face thereof:
For each Global Note:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH CITADEL
BROADCASTING COMPANY (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
(THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY,
(B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"),
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN
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RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT
OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT SUBJECT TO THE COMPANY'S, AND THE
TRUSTEE'S/TRANSFER AGENT'S, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE
THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT.
THIS LEGEND SHALL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
For each Certificated Note:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. NEITHER THE SECURITIES EVIDENCED BY THIS CERTIFICATE, NOR ANY
INTEREST THEREIN, MAY BE OFFERED, SOLD, TRANSFERRED, ENCUMBERED OR
OTHERWISE DISPOSED OF UNLESS EITHER (I) THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT AND LAWS RELATING THERETO OR
(II) THE ISSUER HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY IN FORM AND SUBSTANCE TO THE ISSUER, STATING THAT SUCH
REGISTRATION IS NOT REQUIRED.
Each Global Note, whether or not an Initial Note, shall also
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS
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REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF
DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTIONS 306 AND 307 OF THE INDENTURE.
SECTION 203. [INTENTIONALLY OMITTED].
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SECTION 204. FORM OF FACE OF NOTE.
CITADEL BROADCASTING COMPANY
10 1/4% [Series B]* Senior Subordinated Note due 2007
CUSIP No. _____
No. __________ $________
CITADEL BROADCASTING COMPANY, a Nevada corporation (herein
called the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to ____________________ or registered assigns, the principal sum of
____________________ Dollars on July 1, 2007, at the office or agency of the
Company referred to below, and to pay interest thereon on January 1, 1998 and
semi-annually thereafter, on July 1 and January 1 in each year, from January 1,
1998, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, at the rate of 10-1/4% per annum, until the
principal hereof is paid or duly provided for, and (to the extent lawful) to
pay on demand interest on any overdue interest at the rate borne by the Notes
from the date on which such overdue interest becomes payable to the date
payment of such interest has been made or duly provided for. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
shall, as provided in such Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business
on the Regular Record Date for such interest, which shall be June 15 or
December 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and such defaulted interest, and (to the extent lawful) interest
on such defaulted interest at the rate borne by the Notes, may 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 Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Notes not less than 10 days prior to such Special Record Date, or
may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
[The Holder of this Note is entitled to the benefits of the
Notes Registration Rights Agreement, dated as of July 3, 1997 (the "Notes
Registration Rights Agreement"), between the Company, the Subsidiary Notes
Guarantors and the Initial Purchasers named therein. In the event that either
(a) the Notes Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 90th calendar day following the Closing Date or
(b) the Notes Exchange Offer is not consummated or a Notes Shelf Registration
Statement is not declared
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* Include only for New Notes.
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effective on or prior to the 210th calendar day following the Closing Date, the
interest rate borne by the Notes shall be increased by 0.25% per annum for the
first 30 days following the 90-day period referred to in clause (a) above or
the first 90 days following the 210-day period referred to in clause (b) above.
Such interest shall increase by an additional 0.25% per annum at the beginning
of each subsequent 30-day period in the case of clause (a) above or 90-day
period in the case of clause (b) above; provided, however, that in no event
shall the interest rate borne by the Notes be increased by more than 1.5%. Upon
the filing of the Notes Exchange Offer Registration Statement, the consummation
of the Notes Exchange Offer or the effectiveness of a Notes Shelf Registration
Statement, as the case may be, the interest rate borne by the Notes from the
date of such filing, consummation or effectiveness, as the case may be, shall
be reduced to the original interest rate set forth in the first paragraph of
this Note; provided, however, that if, after any such reduction in interest
rate, a different event specified in clause (a) or (b) above occurs, the
interest rate may again be increased pursuant to the foregoing provisions.]*
[If the Company issues a notice that the Notes Shelf
Registration Statement is unusable pending the announcement of a material
corporate transaction or otherwise pursuant to Section 3(k) of the Notes
Registration Rights Agreement, or such a notice is required under applicable
securities laws to be issued by the Company, and the aggregate number of days
in any consecutive twelve-month period for which all such notices are issued or
required to be issued exceeds 30 days in the aggregate, then the interest rate
borne by the Notes shall be increased by one-quarter of one percent per annum
following the date that such Notes Shelf Registration Statement ceases to be
usable beyond the 30-day period permitted above, which rate shall be increased
by an additional one-quarter of one percent per annum for each 90-day period
that such additional interest continues to accrue; provided that the aggregate
increase in such annual interest rate may in no event exceed 1.5%. Upon the
Company declaring that the Notes Shelf Registration Statement is usable after
the interest rate has been increased pursuant to the preceding sentence, the
interest rate borne by the Notes shall be reduced to the original interest rate
if the Company is otherwise in compliance with this paragraph; provided,
however, that if after any such reduction in interest rate the Notes Shelf
Registration Statement again ceases to be usable beyond the period permitted
above, the interest rate shall again be increased and thereafter reduced
pursuant to the foregoing provisions.]*
The principal of and premium, if any, and interest on the
Notes shall be payable, and the Notes shall be exchangeable and transferable,
at the office or agency of the Company in The City of New York maintained for
such purposes (which initially shall be the office of the Trustee located at
000 Xxxxxxx Xxxxxx--00X, Xxx Xxxx, XX 10286); provided, however, that, at the
option of the Company, interest may be paid by check mailed to the address of
the Person entitled thereto as such address appears in the Note Register.
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* Include only for Initial Notes.
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Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee or the Authenticating Agent referred to on the reverse
hereof by manual signature, this Note shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: CITADEL BROADCASTING COMPANY
By
---------------------------------------
Name:
Title:
Attest: [SEAL]
---------------------------
Authorized Officer
SECTION 205. FORM OF REVERSE OF NOTE.
This Note is one of a duly authorized issue of securities of
the Company designated as its 10-1/4% [Series B]* Senior Subordinated Notes due
2007 (the "Notes"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $101,000,000, which may be
issued under an indenture (the "Indenture") dated as of July 1, 1997 between
the Company, Citadel License, Inc., as guarantor (the "Subsidiary Notes
Guarantor"), and The Bank of New York, as trustee (the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Subsidiary Notes Guarantor, the Trustee and the
Holders of the Notes, and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
This Note is subordinated to the prior payment in full of all
Senior Debt in the manner and to the extent set forth in Article Fourteen of
the Indenture.
--------
* Include only for the New Notes.
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On or before each payment date, the Company shall deliver or
cause to be delivered to the Trustee or the Paying Agent an amount in dollars
sufficient to pay the amount due on such payment date.
The Notes shall be redeemable (subject to contractual and
other restrictions with respect thereto and to the legal availability of funds
therefor) at the election of the Company, as a whole or from time to time in
part, at any time on or after July 1, 2002 on not less than 30 nor more than 60
days' prior notice, at the redemption prices (expressed as percentages of the
principal amount thereof) set forth below, together with accrued and unpaid
interest, if any, to the redemption date, if redeemed during the 12-month
period beginning on July 1 of the years indicated below (subject to the right
of Holders of record on the relevant record date to receive interest due on an
Interest Payment Date):
REDEMPTION
YEAR PRICE
---- -----------------
2002................................................... 105.125%
2003................................................... 104.100%
2004................................................... 103.075%
2005................................................... 102.050%
2006................................................... 101.025%
In addition, at any time and from time to time prior to July
1, 2000, the Company may at its option redeem Notes with the net proceeds of
one or more Public Equity Offerings at a redemption price equal to 110.25% of
the principal amount thereof, together with accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on an Interest Payment Date);
provided that, immediately after giving effect to any such redemption, at least
$75,000,000 aggregate principal amount of the Notes remains outstanding. Any
such redemption must be made within 90 days of the related Public Equity
Offering.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 60 days prior to the
redemption date by the Trustee by such method as the Trustee deems fair and
appropriate.
In the event of redemption or repurchase of this Note in part
only, a new Note or Notes for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
Upon the occurrence of a Change of Control, the Company shall
be required to make an offer to purchase on the Change of Control Purchase Date
all outstanding Notes at a purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon,
if any, to the date of purchase, in accordance with the Indenture.
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Holders of Notes that are subject to an offer to purchase shall receive a
Change of Control Offer from the Company prior to any related Change of Control
Purchase Date.
Under certain circumstances, in the event the Net Cash
Proceeds received by the Company from an Asset Sale, which proceeds are not
used (i) towards the permanent reduction of amounts outstanding under the
Credit Facility or to the repayment of other Senior Debt of the Company or a
Subsidiary Notes Guarantor or (ii) to invest (or enter into one or more legally
binding agreements to invest) in properties and assets to replace the
properties and assets that were the subject of the Asset Sale or in properties
and assets that shall be used in the broadcast business or businesses
reasonably related thereto, equal or exceed a specified amount, the Company
shall be required to make an offer to all Holders to purchase the maximum
principal amount of Notes, in an integral multiple of $1,000, that may be
purchased out of such amount at a purchase price in cash equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of purchase, in accordance with the Indenture. Holders of Notes that are
subject to any offer to purchase shall receive an Asset Sale Offer from the
Company prior to any related Asset Sale Purchase Date.
In the case of any redemption or repurchase of Notes,
interest installments whose Stated Maturity is on or prior to the Redemption
Date or Asset Sale Purchase Date, as the case may be, shall be payable to the
Holders of such Notes, or one or more Predecessor Notes, of record at the close
of business on the relevant Regular Record Date or Special Record Date, as the
case may be, referred to on the face hereof. Notes (or portions thereof) for
whose redemption and payment provision is made in accordance with the Indenture
shall cease to bear interest from and after the Redemption Date or Asset Sale
Purchase Date, as the case may be.
If an Event of Default shall occur and be continuing, the
principal of all the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of the Company on this Note and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Note.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the Subsidiary Notes Guarantors and the rights
of the Holders under the Indenture and the Notes and the Subsidiary Notes
Guarantees, if any, at any time by the Company, the Subsidiary Notes Guarantors
and the Trustee with the consent of the Holders of a specified percentage in
aggregate principal amount of the Notes at the time Outstanding. Additionally,
the Indenture permits that with certain exceptions as therein provided, without
notice to or consent of any Holder, the Company, any Subsidiary Notes Guarantor
and the Trustee together may amend or supplement the Indenture, any Subsidiary
Notes Guarantee or this Note (i) to evidence the
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33
succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company in the Indenture and in the Notes; or
(ii) to add to the covenants of the Company for the benefit of the Holders, or
to surrender any right or power conferred upon the Company in the Indenture; or
(iii) to add additional Events of Default; or (iv) to provide for
uncertificated Notes in addition to or in place of the certificated Notes; or
(v) to evidence and provide for the acceptance of appointment under the
Indenture by a successor Trustee; or (vi) to secure the Notes; or (vii) to cure
any ambiguity, to correct or supplement any provision in the Indenture that may
be defective or inconsistent with any other provision in the Indenture, or to
make any other provisions with respect to matters or questions arising under
the Indenture, provided that such actions pursuant to this clause do not
adversely affect the interests of the Holders in any material respect; or
(viii) to comply with any requirements of the Commission in order to effect and
maintain the qualification of the Indenture under the Trust Indenture Act.
The Indenture also contains provisions permitting the Holders
of not less than a majority in aggregate principal amount of the Notes at the
time Outstanding, on behalf of the Holders of all the Notes, to waive any past
defaults by the Company with certain provisions of the Indenture, the Notes and
the Subsidiary Notes Guarantees, if any, and certain past Defaults under the
Indenture and the Notes and the Subsidiary Notes Guarantees, if any, and their
consequences. Any such consent or waiver by or on behalf of the Holder of this
Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor 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 of the Indenture shall alter or impair the obligation of the Company or
the Subsidiary Notes Guarantors or any other obligor on the Notes (in the event
any Subsidiary Notes Guarantor or other obligor is obligated to make payments
in respect of the Notes), which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Note at the times,
place, and rate, and in the coin or currency, herein prescribed, subject to the
subordination provisions of the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registerable on the
Note Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount, shall be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof (unless
the Company otherwise directs). As
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34
provided in the Indenture and subject to certain limitations therein set forth,
the Notes are exchangeable for a like aggregate principal amount of Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require
payment of a sum sufficient to pay all documentary, stamp or similar issue or
transfer taxes or other governmental charge payable in connection therewith.
The Notes are entitled to the benefit of a Subsidiary Notes
Guarantee by each Subsidiary Notes Guarantor to the extent provided in each
such Subsidiary Notes Guarantee.
Prior to the time of due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as
the owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
Interest on this Note shall be computed on the basis of a
360-day year of twelve 30-day months.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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35
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto
INSERT TAXPAYER IDENTIFICATION NO.
______________________________________________________________________________
______________________________________________________________________________
please print or typewrite 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 on the books of the Company with full power of
substitution in the premises.
Your Signature:_______________________________________________________________
(sign exactly as your name appears on the other side of this
Note)
Signature Guarantee:__________________________________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Exchange Act.
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[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATED NOTES]
In connection with any transfer of this Note occurring prior
to the date that is the earlier of the date of an effective Registration
Statement or July 3, 1999, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[CHECK ONE]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act of 1933,
as amended, provided by Rule 144A thereunder.
OR
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished that comply with
the conditions of transfer set forth in this Note and the
Indenture.
If none of the foregoing boxes is checked, the Trustee or other Note Registrar
shall not be obligated to register this Note in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 307 of the Indenture shall have
been satisfied.
Date: ____________________ ________________________________
NOTICE: The signature must
correspond with the name
as written upon the
face of the
within-mentioned
instrument in every
particular, without
alteration or any
change whatsoever.
Signature Guarantee:_________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Exchange Act.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
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37
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:__________________ ______________________________________
NOTICE: To be executed by an executive
officer.
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant
to Section 1011 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 1012 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date: ____________________
Your Signature: ______________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: _________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Exchange Act.
SECTION 206. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK, as Trustee
By______________________________
Authorized Signatory
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ARTICLE THREE
THE NOTES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $101,000,000,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 303, 304,
305, 306, 307, 310, 906, 1011, 1012 or 1108 or pursuant to a Notes Exchange
Offer.
The Initial Notes shall be known and designated as the
"10- 1/4% Senior Subordinated Notes due 2007" and the New Notes shall be known
and designated as the "10-1/4% Series B Senior Subordinated Notes due 2007," in
each case, of the Company. The Stated Maturity of the Notes shall be July 1,
2007, and they shall bear interest at the rate of 10-1/4% per annum from July 3,
1997, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, payable on January 1, 1998 and semiannually
thereafter on July 1 and January 1 in each year, until the principal thereof is
paid in full and to the Person in whose name the Note (or any predecessor Note)
is registered at the close of business on the June 15 or December 15 next
preceding such Interest Payment Date. Interest shall be computed on the basis of
a 360-day year comprised of twelve 30-day months, until the principal thereof is
paid or duly provided for. Interest on any overdue principal, interest (to the
extent lawful) or premium, if any, shall be payable on demand.
The principal of and premium, if any, and interest on the
Notes shall be payable, and the Notes shall be exchangeable and transferable,
at the office or agency of the Company in The City of New York maintained for
such purposes (which initially shall be the office of the Trustee located at
000 Xxxxxxx Xxxxxx--00X, Xxx Xxxx, XX 10286); provided, however, that, at the
option of the Company, interest may be paid by check mailed to the address of
the Person entitled thereto as such address appears in the Note Register.
Holders shall have the right to require the Company to
purchase their Notes, in whole or in part, in the event of a Change of Control
pursuant to Section 1011.
The Notes shall be subject to repurchase by the Company
pursuant to an Asset Sale Offer as provided in Section 1012.
The Notes shall be redeemable as provided in Article Eleven
and in the Notes.
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SECTION 302. DENOMINATIONS.
Except at the direction of the Company, the Notes shall be
issuable only in registered form without coupons and only in denominations of
$1,000 and any integral multiple thereof; PROVIDED, however, the Company shall
be deemed to have so directed in respect of any Notes issued initially
hereunder in integral multiples of other than $1,000 and any Notes issued upon
exchange or transfer therefor.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed on behalf of the Company by its
Chairman, its President or a Vice President, under its corporate seal
reproduced thereon and attested by its Secretary or an Assistant Secretary. The
signature of any of these officers on the Notes may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Notes.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Initial Notes executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Notes, directing the Trustee to
authenticate the Notes and certifying that all conditions precedent to the
issuance of Notes contained herein have been fully complied with, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Initial Notes. On Company Order, the Trustee shall authenticate for
original issue New Notes in an aggregate principal amount not to exceed
$101,000,000; provided that such New Notes shall be issuable only upon the
valid surrender for cancellation of Initial Notes of a like aggregate principal
amount in accordance with a Notes Exchange Offer pursuant to the Notes
Registration Rights Agreement. In each case, the Trustee shall be entitled to
receive an Officers' Certificate and an Opinion of Counsel of the Company that
it may reasonably request in connection with such authentication of Notes. Such
order shall specify the amount of Notes to be authenticated and the date on
which the original issue of Initial Notes or New Notes is to be authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Note shall be conclusive evidence, and
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41
the only evidence, that such Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
In case the Company or any Subsidiary Notes Guarantor,
pursuant to Article Eight, shall be consolidated or merged with or into any
other Person or shall convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to any Person, and the
successor Person resulting from such consolidation, or surviving such merger,
or into which the Company or such Subsidiary Notes Guarantor shall have been
merged, or the Person which shall have received a conveyance, transfer, lease
or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of the
Notes authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Notes executed in the
name of the successor Person with such changes in phraseology and form as may
be appropriate, but otherwise in substance of like tenor as the Notes
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Notes as specified in such request for the purpose of such exchange. If Notes
shall at any time be authenticated and delivered in any new name of a successor
Person pursuant to this Section 303 in exchange or substitution for or upon
registration of transfer of any Notes, such successor Person, at the option of
the Holders but without expense to them, shall provide for the exchange of all
Notes at the time Outstanding for Notes authenticated and delivered in such new
name.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes on behalf of the Trustee. Unless limited by
the terms of such appointment, an authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Note Registrar or Paying Agent
to deal with the Company and its Affiliates.
The Trustee shall have the right to decline to authenticate
and deliver any Notes under this Section if the Trustee, being advised by
counsel, reasonably determines that such action may not lawfully be taken.
SECTION 304. TEMPORARY NOTES.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as conclusively evidenced by their
execution of such Notes.
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If temporary Notes are issued, the Company shall cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to Section 1002, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. The Note Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. At all reasonable times, the Note Register shall be
open to inspection by the Trustee. The Trustee is hereby initially appointed as
security registrar (the Trustee in such capacity, together with any successor
of the Trustee in such capacity, the "Note Registrar") for the purpose of
registering Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note at
the office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes of any
authorized denomination or denominations of a like aggregate principal amount.
Furthermore, any Holder of the Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interest in
such Global Note may be effected only through a book-entry system maintained by
the Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Note shall be required to be reflected in a book
entry.
At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denomination and of a like aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange (including an exchange of Initial
Notes for New Notes), the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive; provided that no exchange of Initial Notes for New Notes
shall occur until a Notes Exchange Offer Registration Statement shall have been
declared effective by the Commission, the Trustee shall have received an
Officers' Certificate confirming that the Notes
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43
Exchange Offer Registration Statement has been declared effective by the
Commission and the Initial Notes to be exchanged for the New Notes shall be
cancelled by the Trustee.
All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Note
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Note Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 304, 906, 1011, 1012 or 1108,
not involving any transfer.
SECTION 306. BOOK-ENTRY PROVISIONS FOR THE GLOBAL NOTE.
(a) The Global Note initially shall (i) be registered in the
name of Cede & Co. as nominee for the Depositary (the "Global Note Holder"),
(ii) be delivered to the Trustee as custodian for such Depositary and (iii)
bear legends as set forth in Section 202.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Notes
held on their behalf by the Depositary, or the Trustee as its custodian, or
under the Global Note, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or shall impair, as between
the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) Transfers of the Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in the
Global Note may be transferred in accordance with the rules and procedures of
the Depositary and the provisions of Section 307. Beneficial owners may obtain
Certificated Notes in exchange for their beneficial interests in the Global
Note upon request in accordance with the Depositary's and the Note Registrar's
procedures. In addition, Certificated Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in the Global Note
if (i) the Company notifies the Trustee in writing that the Depositary
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44
is unwilling or unable to act as a depositary for the Global Note and the
Company is unable to locate a qualified successor within 90 days or (ii) the
Company, at its option, notifies the Trustee in writing that it elects to
change the issuance of Notes into the form of Certificated Securities under
this Indenture.
(c) In connection with any transfer of a portion of the
beneficial interest in the Global Note pursuant to subsection (b) of this
Section to beneficial owners, the Note Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Global Note in
an amount equal to the principal amount of the beneficial interest in the
Global Note to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Certificated Notes of like tenor
and amount to each Person that the Global Note Holder and the Depositary
identify as being the beneficial owner of the related Notes.
(d) In connection with the transfer of the entire Global Note
to beneficial owners pursuant to subsection (b) of this Section, the Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Global Note Holder and the Depositary in
exchange for its beneficial interest in the Global Note, an equal aggregate
principal amount of Certificated Notes of authorized denominations.
(e) Any Certificated Notes delivered in exchange for an
interest in the Global Note pursuant to subsection (c) or subsection (d) of
this Section shall, except as otherwise provided by paragraph (a)(i) of Section
307, bear the applicable legend regarding transfer restrictions applicable to
the Certificated Note set forth in Section 202.
(f) The registered holder of the Global Note may grant
proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Notes.
SECTION 307. SPECIAL TRANSFER PROVISIONS.
Unless and until (i) an Initial Note is sold under an
effective Notes Shelf Registration Statement, or (ii) an Initial Note is
exchanged for a New Note in connection with an effective Notes Exchange Offer
Registration Statement, in each case pursuant to the Notes Registration Rights
Agreement, the following provisions shall apply:
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS.
The following provisions shall apply with respect to the registration
of any proposed transfer of an Initial Note to any institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act) which is not a QIB:
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45
(i) The Note Registrar shall register the transfer
of any Initial Note, whether or not such Initial Note bears
the Private Placement Legend, if (x) the requested transfer
is at least two years after the original issue date of the
Initial Note or (y) the proposed transferee has delivered to
the Note Registrar a certificate substantially in the form
set forth in Section 308.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in the Global Note, upon
receipt by the Note Registrar of (x) the documents, if any,
required by paragraph (i) and (y) instructions given in
accordance with the Depositary's and the Note Registrar's
procedures therefor, the Note Registrar shall reflect on its
books and records the date and a decrease in the principal
amount of the Global Note in an amount equal to the principal
amount of the beneficial interest in the Global Note to be
transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Certificated
Notes of like tenor and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply
with respect to the registration of any proposed transfer of an
Initial Note to a QIB:
(i) If the Note to be transferred consists of
Certificated Notes, the Note Registrar shall register the
transfer if such transfer is being made by a proposed
transferor who has checked the box provided for on the form
of Initial Note stating, or has otherwise advised the Company
and the Note Registrar in writing, that the sale has been
made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on
the form of Initial Note stating, or has otherwise advised
the Company and the Note Registrar in writing, that it is
purchasing the Initial Note for its own account or an account
with respect to which it exercises sole investment discretion
and that it, or the Person on whose behalf it is acting with
respect to any such account, is a QIB within the meaning of
Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim
the exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member,
and the Initial Note to be transferred consists of
Certificated Notes, upon receipt by the Note Registrar of
instructions given in accordance with the Depositary's and
the Note Registrar's procedures therefor, the Note Registrar
shall reflect on its books and records the date and an
increase in the principal amount of the Global Note in an
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amount equal to the principal amount of the Certificated
Notes to be transferred, and the Trustee shall cancel the
Certificated Note so transferred.
(c) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the
Note Registrar shall deliver Notes that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Notes
bearing the Private Placement Legend, the Note Registrar shall deliver
only Notes that bear the Private Placement Legend unless either (i)
the circumstances contemplated by paragraph (a)(i) of this Section 307
exist or (ii) there is delivered to the Note Registrar an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(d) GENERAL. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and
in the Private Placement Legend and agrees that it shall transfer such
Note only as provided in this Indenture. The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in
any Note (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Note)
other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so
if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with
the express requirements hereof.
The Note Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 306 or
this Section 307. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Note Registrar.
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SECTION 308. FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS.
Citadel Broadcasting Company
000 Xxxxx Xxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Prudential Securities Incorporated
NationsBanc Capital Markets, Inc.
BancBoston Securities Inc.
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $ aggregate
principal amount of 10-1/4% [Series B]* Senior Subordinated Notes due 2007 (the
"Securities") of Citadel Broadcasting Company (the "Company"), we confirm that:
1. We have received a copy of the Offering Memorandum, dated
June 30, 1997, relating to the Securities and such other information
as we deem necessary in order to make our investment decision.
2. We understand that the Securities have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"),
and unless so registered, may not be sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Securities to offer, sell
or otherwise transfer such Securities prior to the date which is two
years after the later of the date of original issue and the last date
on which the Company or any affiliate or the Company was the owner of
such Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the
Securities Act, (c) for so long as the Securities are eligible for
resale pursuant to Rule 144A under the Securities Act, to a Person we
reasonably believe is a Qualified Institutional Buyer under Rule 144A
that purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the transfer is being
made in reliance on Rule 144A, (d) to an institutional "accredited
investor" (as defined in subparagraph (a)(1), (2), (3) or (7) of Rule
501 of Regulation D under the Securities Act) that is purchasing for
his own account or for the account of such an institutional
"accredited
--------
* Include only for New Notes.
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investor" or (e) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of
the foregoing cases to any requirement of law that the disposition of
our property or the property of such investor account be at all times
within our or their control and to compliance with any applicable
state securities laws. The foregoing restrictions on sale shall not
apply subsequent to the Resale Restriction Termination Date. If any
resale or other transfer of the Securities is proposed to be made
pursuant to clause (d) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company and
the trustee under the indenture relating to the Securities (the
"Trustee") which shall provide, among other things, that the
transferee is an institutional "accredited investor" and that it is
acquiring such Securities for investment purposes and not for
distribution in violation of the Securities Act. Each purchaser
acknowledges that the Company and the Trustee reserve the right prior
to any offer, sale or other transfer of the Securities prior to the
Resale Restriction Termination Date pursuant to clause (c), (d) or (e)
above to require the delivery of an opinion of counsel, certifications
or other information satisfactory to the Company and the Trustee.
3. We are an institutional "accredited investor" (as defined
above) purchasing for our own account or for the account of an
institutional "accredited investor" for which we exercise sole
investment discretion and we are acquiring the Securities for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act
and we have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Securities, and we and any investor accounts for
which we are acting are each able to bear the economic risk of our or
its investments for an indefinite period.
4. You and the Trustee are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy
thereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered
hereby.
Very truly yours,
(Name of Purchaser)
By:________________________
Name: _____________________
Title:_____________________
Date:______________________
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Upon transfer, the Securities should be registered in the
name of the new beneficial owner as follows:
Name:_________________________________________________________________
Address: _____________________________________________________________
Taxpayer ID Number:___________________________________________________
SECTION 309. [INTENTIONALLY OMITTED]
SECTION 310. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If (i) any mutilated Note is surrendered to the Trustee, or
(ii) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and there is delivered to the Company
and the Trustee such security or indemnity, in each case, as may be required by
them to save each of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and deliver, in exchange for any such mutilated Note or in lieu of
any such destroyed, lost or stolen Note, a new Note of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the
Company 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) in connection
therewith.
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, any Subsidiary Notes
Guarantor and any other obligor upon the Notes, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.
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The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 311. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name such Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest may at the Company's
option be paid by mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 312, to the
address of such Person as it appears in the Note Register.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the Regular Record Date by
virtue of having been such Holder, and such defaulted interest and (to the
extent lawful) interest on such defaulted interest at the rate borne by the
Notes (such defaulted interest and interest thereon herein collectively called
"Defaulted Interest") shall be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Note and the date (not less than 30 days after such
notice) of the proposed payment (the "Special Record Date"), and at
the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given in the manner provided for in Section 106, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so given,
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such Defaulted Interest shall be paid to the Persons in whose names
the Notes (or their respective Predecessor Notes) are registered at
the close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 312. PERSONS DEEMED OWNERS.
Prior to the due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Persons in whose names, including the Global Note, such Notes are
registered as the owners of such Note for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 311)
interest on such Note and for all other purposes whatsoever, whether or not
such Note be overdue, and none of the Company, any Subsidiary Notes Guarantor,
the Trustee nor any agent of the Company, any Subsidiary Notes Guarantor or the
Trustee shall be affected by notice to the contrary.
SECTION 313. CANCELLATION.
All Notes surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. If
the Company shall acquire any of the Notes other than as set forth in the
preceding sentence, the acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation pursuant to this Section
313. No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Notes held by the Trustee shall be disposed of by the
Trustee in accordance with its customary procedures unless by Company Order the
Company shall direct that cancelled Notes be returned to it.
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SECTION 314. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 315. CUSIP NUMBERS.
The Company in issuing Notes may use "CUSIP" numbers (if then
generally in use) in addition to serial numbers; if so, the Trustee shall use
such "CUSIP" numbers in addition to serial numbers in notices of redemption and
repurchase as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such CUSIP numbers
either as printed on the Notes or as contained in any notice of a redemption or
repurchase and that reliance may be placed only on the serial or other
identification numbers printed on the Notes, and any such redemption or
repurchase shall not be affected by any defect in or omission of such CUSIP
numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon request by the Company cease to be
of further effect (except as to surviving rights of registration of transfer or
exchange of Notes expressly provided for herein or pursuant hereto) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when:
(1) either
(a) all the Notes theretofore authenticated and
delivered (other than (i) Notes which have been lost, stolen
or destroyed and which have been replaced or paid as provided
in Section 310 and (ii) Notes for whose payment money has
theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation, or
(b) all such Notes not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable or
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(ii) shall become due and payable at their
Stated Maturity within one year or
(iii) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of
the Company,
and the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for such
purpose an amount sufficient to pay and discharge the entire
Debt on such Notes not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Notes
which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company or the Subsidiary Notes Guarantors have paid
or caused to be paid all sums payable hereunder by the Company or the
Subsidiary Notes Guarantors; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607 and,
if money shall have been deposited with the Trustee pursuant to subclause (b)
of clause (1) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
If the Trustee or Paying Agent is unable to apply any money
or U.S. Government Obligations in accordance with Section 401 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and any Subsidiary Notes Guarantor's obligations
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under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401; provided that if the Company has
made any payment of principal of, premium, if any, or interest on any Notes
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of
the following events (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 government body):
(a) default in the payment of any interest on any Note when
it becomes due and payable, and continuance of such default for a
period of 30 days;
(b) default in the payment of the principal of (or premium,
if any, on) any Note when due;
(c) failure to perform or comply with Article Eight;
(d) default in the performance, or breach, of any covenant or
agreement of the Company or any Subsidiary Notes Guarantor contained
in this Indenture or any Subsidiary Notes Guarantee (other than a
default in the performance, or breach, of a covenant or agreement that
is specifically dealt with elsewhere herein), and continuance of such
default or breach for a period of 60 days after written notice has
been given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding;
(e) (i) the occurrence of an event of default under any
mortgage, bond, indenture, loan agreement or other document evidencing
an issue of Debt of the Company or any Significant Subsidiary, which
issue has an aggregate outstanding principal amount of not less than
$5,000,000, and such default has resulted in such Debt becoming,
whether by declaration or otherwise, due and payable prior to the date
on which it would otherwise become due and payable or (ii) a default
in any payment when due at final maturity of any such Debt;
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(f) failure by the Company or any of its Restricted
Subsidiaries to pay one or more final judgments the uninsured portion
of which exceeds in the aggregate $5,000,000, which judgment or
judgments are not paid, discharged or stayed for a period of 60 days;
(g) any Subsidiary Notes Guarantee ceases to be in full force
and effect or is declared null and void or any Subsidiary Notes
Guarantor denies that it has any further liability under any
Subsidiary Notes Guarantee, or gives notice to such effect (other than
by reason of the termination of this Indenture or the release of any
Subsidiary Notes Guarantee in accordance with this Indenture), and
such condition has continued for a period of 30 days after written
notice of such failure requiring the Subsidiary Notes Guarantor and
the Company to remedy the same has been given (x) to the Company by
the Trustee or (y) to the Company and the Trustee by the Holders of
25% in aggregate principal amount of the Notes then outstanding;
(h) a court having jurisdiction in the premises enters a
decree or order for (i) relief in respect of the Company or any
Significant Subsidiary in an involuntary case under any applicable
Bankruptcy Law now or hereafter in effect, (ii) appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or any Significant Subsidiary or for
all or substantially all of the property and assets of the Company or
any Significant Subsidiary or (iii) the winding up or liquidation of
the affairs of the Company or any Significant Subsidiary and, in each
case, such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(i) the Company or any Significant Subsidiary (i) commences a
voluntary case under any applicable Bankruptcy Law now or hereafter in
effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment
of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or
any Significant Subsidiary or for all or substantially all of the
property and assets 1of the Company or any Significant Subsidiary or
(iii) effects any general assignment for the benefit of creditors.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default (other than as specified in Section
501(h) or (i)) occurs and is continuing, the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding may, and
the Trustee at the request of such Holders shall, declare the principal of all
of the outstanding Notes immediately due and payable, by a notice in writing to
the Company (and to the Trustee if given by the Holders) and, if the Credit
Facility is in effect, to the Credit Facility Agent and, upon any such
declaration, such principal shall become due and payable immediately. If an
Event of Default specified in Section 501(h) or (i) above
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occurs and is continuing, then such principal shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder of Notes.
At any time after a declaration of acceleration under this
Indenture, but before a judgment or decree for payment of the money due has
been obtained by the Trustee, the Holders of a majority in aggregate principal
amount of the outstanding Notes, by written notice to the Company and the
Trustee, may rescind such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Notes,
(B) all unpaid principal of (and premium, if any,
on) any outstanding Notes that has become due otherwise than
by such declaration of acceleration and interest thereon at
the rate borne by the Notes,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and overdue principal
amount at the rate borne by the Notes, and
(D) all sums paid or advanced by the Trustee under
this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(ii) all Events of Default, other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on the
Notes that have become due solely by such declaration of acceleration,
have been cured or waived.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company and each of the Subsidiary Notes Guarantors
covenants that if
(a) default is made in the payment of any interest on any
Note when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Stated Maturity or other maturity
thereof,
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the Company and the Subsidiary Notes Guarantors shall, upon demand of the
Trustee, pay to the Trustee for the benefit of the Holders of such Notes, the
whole amount then due and payable on such Notes for principal (and premium, if
any) and interest, with interest upon the overdue principal (and premium, if
any) and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the rate borne by the
Notes; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and all other amounts due to the Trustee under Section 607.
If the Company or any Subsidiary Notes Guarantor, as the case
may be, fails to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, 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 Company, such Subsidiary Notes Guarantor or any other obligor upon the
Notes and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company, such Subsidiary Notes
Guarantor or any other obligor upon the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy subject, however, to Section 513. No recovery of any such judgment upon
any property of the Company or any Subsidiary Notes Guarantor shall affect or
impair any rights, powers or remedies of the Trustee or the Holders.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any Subsidiary Notes
Guarantor, upon the Notes or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Notes, to take such other actions (including
participating as a member, voting or otherwise, of any official
committee of creditors appointed in such matter) and to file such
other papers or documents as may
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be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of such Holders, vote for the election
of a trustee in bankruptcy or other similar official.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
NOTES.
All rights of action and claims under this Indenture, the
Notes or the Subsidiary Notes Guarantees may be prosecuted and enforced by the
Trustee without the possession of any of the Notes or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Notes
in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Fourteen, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
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SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Notes in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for principal
(and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Company or any other obligor on the Notes, as
their interests may appear or as a court of competent jurisdiction may
direct, provided that all sums due and owing to the Holders and the
Trustee have been paid in full as required by this Indenture.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Notes shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Notes shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 30-day period by the Holders of
a majority or more in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture, any Note or any Subsidiary Notes Guarantee to affect, disturb
or prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under
this Indenture, any Note or any Subsidiary Notes Guarantee, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
to receive payment, as provided herein (including, if applicable, Article
Eleven) and in such Note of the principal of (and premium, if any) and (subject
to Section 311) interest on such Note on the respective Stated Maturities
expressed in such Note (or, in the case of redemption or repurchase, on the
Redemption Date or repurchase) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or any Subsidiary Notes
Guarantee and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, any Subsidiary Notes Guarantor, any other obligor on the Notes, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 310, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders 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.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
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SECTION 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in principal amount
of the Outstanding Notes 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, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or any Subsidiary Notes Guarantee;
(2) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders not
consenting; and
(3) subject to the provisions of Section 315 of the Trust
Indenture Act, the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate
principal amount of the outstanding Notes may, on behalf of the Holders of all
of the Notes, waive any past defaults under this Indenture, except a default in
the payment of the principal of (and premium, if any) or interest on any Note,
or in respect of a covenant or provision that under this Indenture cannot be
modified or amended without the consent of the Holder of each Note outstanding.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.
Each of the Company and the Subsidiary Notes Guarantors
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which would prohibit or forgive the Company, any
Subsidiary Notes Guarantor or any such obligor from paying all or any portion
of the principal of, premium, if any, or interest on the Notes contemplated
herein or in the Notes or which may affect the covenants or the performance of
this Indenture; and each of the Company, any Subsidiary Notes Guarantor and any
such obligor (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it shall not
hinder, delay or impede the execution of any power herein granted to the
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Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Note by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, 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 Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Notes, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any Note
on or after the respective Stated Maturities expressed in such Note (or, in the
case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default, (1)
the Trustee shall perform only such duties as are specifically set forth in
this Indenture and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and (2) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by any provision
hereby 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) In case a Default or an Event of Default shall have
occurred and be continuing of which a Responsible Officer of the Trustee has
actual knowledge or of which written notice of such Default or Event of Default
shall have been given to the Trustee by the Company, any other obligor of the
Notes or by any Holder, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill
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in their exercise, as a prudent Person would exercise or use under the
circumstances in the conduct of his own affairs.
(c) 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
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) 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 of a majority in aggregate principal
amount of the Outstanding Notes 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; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs and is continuing
and is known to the Trustee, the Trustee shall mail to each Holder of the Notes
notice of the Default or Event of Default within 90 days after the occurrence
thereof. Except in the case of a Default or an Event of Default in payment of
principal of (and premium, if any, on) or interest on any Notes, the Trustee
may withhold the notice to the Holders if a committee of its trust officers in
good faith determines that withholding such notice is in the interests of the
Holders.
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SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, request and rely upon an
Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and
any written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to 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 by it in compliance with such request or direction;
(6) 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, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee
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shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture; and the Trustee shall not be
deemed to have notice of any Default or Event of Default, except in
the case of an event of default involving failures by the Company to
pay principal, premium, if any, or interest on the Notes, 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 Company, the Notes or this Indenture.
SECTION 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF NOTES.
The recitals contained herein and in the Notes, except for
the Trustee's certificates of authentication, shall be taken as the statements
of the Company and the Subsidiary Notes Guarantors, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes or of the
Subsidiary Notes Guarantees, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and
perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. The Trustee shall
not be accountable for the use or application by the Company of Notes or the
proceeds thereof.
SECTION 605. MAY HOLD NOTES.
The Trustee, any Paying Agent, any Note Registrar, any
Authenticating Agent or any other agent of the Company or of the Trustee, in
its individual or any other capacity, may become the owner or pledgee of Notes
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the
Company with the same rights it would have if it were not Trustee, Paying
Agent, Note Registrar, Authenticating Agent or such other agent. The Trustee is
permitted to engage in other transactions; provided, however, that if it
acquires any conflicting interest it must eliminate such conflict or resign.
SECTION 606. MONEY HELD IN TRUST.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust hereunder for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed in
writing with the Company or any Subsidiary Notes Guarantor.
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SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation
as shall be agreed to in writing between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel and costs and expenses of collection), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor
Trustee (and their respective directors, officers, employees and
agents) for, and to hold it harmless against, any and all loss,
damage, claim, liability or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the Holders
of the Notes upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on particular Notes.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(h) or (i), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation for such services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
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SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall be at all times a Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a)(1) and which shall have
an office in The City of New York, and shall have a combined capital and
surplus of at least $100,000,000. If the Trustee does not have an office in The
City of New York, the Trustee may appoint an agent in The City of New York
reasonably acceptable to the Company to conduct any activities which the
Trustee may be required under this Indenture to conduct in The City of New
York. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of federal, state, territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section 608, 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. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 608, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of this Section.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor Trustee by written instrument
executed by authority of the Board of Directors, a copy of which shall be
delivered to the resigning Trustee and a copy to the successor Trustee. If an
instrument of acceptance required by this Section shall not have been delivered
to the resigning Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of not less than a majority in principal amount of the Outstanding
Notes, delivered to the Trustee and to the Company. Upon such removal, the
Company shall promptly appoint a successor Trustee by written instrument
executed by authority of the Board of Directors of the Company, a copy of which
shall be delivered to the removed Trustee and a copy to the successor Trustee.
If an instrument of acceptance required by this Section shall not have been
delivered to the removed Trustee within 30 days after the giving of such notice
of removal, the removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Note for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 608
and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Note for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a Custodian 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, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note 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.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Note for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to the
Holders of Notes in the manner provided for in Section 106. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.
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SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes. In case at
that time any of the Notes shall not have been authenticated, any successor
Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee. In all such cases such
certificates shall have the full force and effect which this Indenture provides
for the certificate of authentication of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES.
The Company shall furnish or cause to be furnished to the
Trustee
(a) semiannually, not more than 10 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date; and
(b) at such other times as the Trustee may reasonably request
in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content to that in Subsection (a)
hereof as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Note
Registrar, no such list need be furnished.
SECTION 702. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 703. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Notes, the Trustee shall transmit to
the Holders, in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such May 15 if required by TIA Section 313(a).
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ARTICLE EIGHT
MERGER, CONSOLIDATION, OR SALE OF ASSETS
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge with or into
any other Person or, directly or indirectly, convey, transfer or lease its
properties and assets substantially as an entirety to any Person or Persons,
unless:
(a) Either (i) the Company is the surviving corporation or
(ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person that
acquires by sale, assignment, transfer, lease or other disposition the
properties and assets of the Company substantially as an entirety (the
"Surviving Entity") (A) is a corporation, partnership or trust
organized and validly existing under the laws of the United States,
any state thereof or the District of Columbia and (B) expressly
assumes, by a supplemental indenture in form satisfactory to the
Trustee, all of the Company's obligations under this Indenture and the
Notes.
(b) Immediately after giving effect to such transaction and
treating any obligation of the Company or a Restricted Subsidiary in
connection with or as a result of such transaction as having been
incurred at the time of such transaction, no Default or Event of
Default shall have occurred and be continuing.
(c) Immediately after giving effect to such transaction on a
pro forma basis, (on the assumption that the transaction occurred at
the beginning of the most recently ended four full fiscal quarter
period for which internal financial statements are available), the
Company (or the Surviving Entity if the Company is not the continuing
obligor under this Indenture) could incur at least $1.00 of additional
Debt (other than Permitted Debt) pursuant to the first paragraph of
Section 1009.
(d) If the Company is not the continuing obligor under this
Indenture, each Subsidiary Notes Guarantor, unless it is the other
party to the transaction described above, has by supplemental
indenture confirmed that its Subsidiary Notes Guarantee applies to the
Surviving Entity's obligations under this Indenture and the Notes.
(e) If any of the property or assets of the Company or any of
its Restricted Subsidiaries would thereupon become subject to any
Lien, the provisions of Section 1021 are complied with.
(f) The Company delivers, or causes to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee,
an Officers' Certificate and an
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Opinion of Counsel, each stating that such transaction complies with
the requirements of this Indenture.
SECTION 802. SUCCESSOR SUBSTITUTED.
In the event of any transaction described in and complying
with the conditions listed in Section 801 in which the Company is not the
continuing obligor under this Indenture, the Surviving Entity shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture, and thereafter the Company shall, except in the case of a
lease, be discharged from all its obligations and covenants under this
Indenture and the Notes.
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company in this Indenture and in the Notes; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to add additional Events of Default; or
(4) to provide for uncertificated Notes in addition to or in
place of the Certificated Notes; or
(5) to evidence and provide for the acceptance of appointment
under this Indenture by a successor Trustee; or
(6) to secure the Notes; or
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(7) to cure any ambiguity, to correct or supplement any
provision in this Indenture that may be defective or inconsistent with
any other provision in this Indenture, or to make any other provisions
with respect to matters or questions arising under this Indenture,
provided that such actions pursuant to this clause do not adversely
affect the interests of the Holders in any material respect; or
(8) to comply with any requirements of the Commission in
order to effect and maintain the qualification of this Indenture under
the Trust Indenture Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of at least a majority in
principal amount of the Outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for the Notes), by Act of such
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or change the place of payment where, or
change the coin or currency in which, any Note or any premium or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
(b) reduce the percentage in principal amount of Outstanding
Notes, the consent of whose Holders is required for any amendment or
for any waiver of compliance with certain provisions of, or certain
defaults and their consequences provided for under, this Indenture;
(c) modify any of the provisions of this Indenture relating
to the subordination of the Notes or the Subsidiary Notes Guarantees
in a manner materially adverse to the Holders; or
(d) waive a default in the payment of principal of, or
premium, if any, or interest on the Notes.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record
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date is fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to consent to such
supplemental indenture, whether or not such Holders remain Holders after such
record date.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustees own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby (except as provided in Section 902).
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to the Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
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SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Note
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
SECTION 908. EFFECT ON SENIOR DEBT.
No supplemental indenture shall adversely affect the rights
of any holders of Senior Debt under Article Fourteen unless the requisite
holders of each issue of Senior Debt affected thereby shall have consented to
such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND
INTEREST.
The Company covenants and agrees for the benefit of the
Holders that it shall duly and punctually pay the principal of (and premium, if
any) and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in The City of New York an office
or agency where Notes may be presented or surrendered for payment, where Notes
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The Corporate Trust Office of the Trustee shall be such office
or agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company shall give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind any such
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designation; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in The City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and any
change in the location of any such other office or agency.
SECTION 1003. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent,
it shall, on or before each due date of the principal of (or premium, if any)
or interest on any of the Notes, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal of (or
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and shall promptly
notify the Trustee of its action or failure to so act.
Whenever the Company shall have one or more Paying Agents for
the Notes, it shall, on or before each due date of the principal of (or
premium, if any) or interest on any Notes, deposit with a Paying Agent a sum in
same day funds (or New York Clearing House funds if such deposit is made prior
to the date on which such deposit is required to be made) sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of such action or any failure to so act.
The Company shall cause each Paying Agent (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying
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Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (or
premium, if any) or interest on any Note and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment to the Company, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence and that of each Restricted Subsidiary and the corporate
rights (charter and statutory) licenses and franchises of the Company and each
Restricted Subsidiary; provided, however, that the Company shall not be
required to preserve any such existence (except the Company) right, license or
franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and each of its Restricted Subsidiaries, taken as a whole, and that
the loss thereof is not, and shall not be, disadvantageous in any material
respect to the Holders.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Restricted Subsidiary or upon the income, profits or property of the Company or
any Restricted Subsidiary and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a material liability or lien
upon the property of the Company or any Restricted Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax,
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assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which appropriate
reserves, if necessary (in the good faith judgment of management of the
Company), are being maintained in accordance with GAAP.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company shall cause all material properties owned by the
Company or any Restricted Subsidiary or used or held for use in the conduct of
its business or the business of any Restricted Subsidiary to be maintained and
kept in normal condition, repair and working order and shall cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly conducted at all
times; provided, however, that nothing in this Section shall prevent the
Company or any of its Restricted Subsidiaries from discontinuing the
maintenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Restricted Subsidiary and not adverse in any material respect
to the Holders.
SECTION 1007. INSURANCE.
To the extent available at commercially reasonable rates, the
Company shall maintain, and shall cause each of its Restricted Subsidiaries to
maintain, insurance with responsible carriers against such risks and in such
amounts, and with such deductibles, retentions, self-insured amounts and
co-insurance provisions, as are customarily carried by similar businesses, of
similar size, including professional and general liability, property and
casualty loss, workers' compensation and interruption of business insurance.
SECTION 1008. COMPLIANCE WITH LAWS.
The Company shall comply, and shall cause each of its
Restricted Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of America, all
states and municipalities thereof, and of any governmental regulatory
authority, in respect of the conduct of their respective businesses and the
ownership of their respective properties, except for such noncompliances as
would not in the aggregate have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries, taken
as a whole.
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SECTION 1009. LIMITATION ON DEBT.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create, issue, assume, guarantee or in any manner
become directly or indirectly liable for the payment of, or otherwise incur
(collectively, "incur"), any Debt (including Acquired Debt and the issuance of
Disqualified Stock), except that the Company or a Subsidiary Notes Guarantor
may incur Debt or issue Disqualified Stock if, at the time of such event, the
Consolidated Cash Flow Ratio would have been less than 7.0 to 1.0.
In making the foregoing calculation, pro forma effect shall
be given to: (i) the incurrence of such Debt and (if applicable) the
application of the net proceeds therefrom, including to refinance other Debt,
as if such Debt had been incurred and the application of proceeds therefrom
occurred on the first day of the four-fiscal quarter period used to calculate
the Consolidated Cash Flow Ratio, (ii) the incurrence, repayment or retirement
of any other Debt by the Company or any of its Restricted Subsidiaries since
the first day of such four-quarter period as if such Debt was incurred, repaid
or retired at the beginning of such four-quarter period and (iii) the
acquisition (whether by purchase, merger or otherwise) or disposition (whether
by sale, merger or otherwise) of any company, entity or business acquired or
disposed of by the Company or any of its Restricted Subsidiaries, as the case
may be, since the first day of such four-quarter period, as if such acquisition
or disposition occurred at the beginning of such four-quarter period. In making
a computation under the foregoing clause (i) or (ii), the amount of Debt under
a revolving credit facility shall be computed based upon the average daily
balance of such Debt during such four-quarter period.
(b) Notwithstanding the foregoing, the Company may, and may,
to the extent expressly permitted below, permit any of its Restricted
Subsidiaries to, incur any of the following Debt ("Permitted Debt"):
(i) Debt of the Company or any Subsidiary Notes Guarantor
under the Credit Facility (including guarantees thereof by
Subsidiaries) in an aggregate principal amount at any one time
outstanding not to exceed $110,000,000 less any amounts applied to the
permanent reduction of such Debt pursuant to Section 1012.
(ii) Debt of the Company or any of its Restricted
Subsidiaries outstanding on the Closing Date, other than Debt
described under clause (i) above.
(iii) Debt owed by the Company to any of its Restricted
Subsidiaries or owed by any Subsidiary to the Company or a Restricted
Subsidiary (provided that such Debt is Subordinated Debt and is held
by the Company or such Restricted Subsidiary) or owed to the Company
or a Subsidiary Notes Guarantor by a Restricted Subsidiary that is not
a Subsidiary Notes Guarantor, provided the incurrence of such Debt did
not violate the provisions of Section 1010.
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(iv) Debt represented by the Notes and the Subsidiary Notes
Guarantees.
(v) Hedging Obligations of the Company or any of its
Restricted Subsidiaries incurred in the ordinary course of business.
(vi) Capitalized Lease Obligations of the Company or any of
its Restricted Subsidiaries in an aggregate amount not exceeding
$3,000,000 at any one time outstanding.
(vii) Debt under purchase money mortgages or secured by
purchase money security interests so long as (x) such Debt is not
secured by any property or assets of the Company or any of its
Restricted Subsidiaries other than the property or assets so acquired
and (y) such Debt is created within 60 days of the acquisition of the
related property; provided that the aggregate principal amount of Debt
under this clause (vii) does not exceed $2,000,000 at any one time
outstanding.
(viii) Debt of the Company or any Subsidiary Notes Guarantor,
not permitted by any other clause of this definition, in an aggregate
principal amount not to exceed $5,000,000 at any one time outstanding.
(ix) Debt of the Company or any of its Restricted
Subsidiaries consisting of guarantees, indemnities or obligations in
respect of purchase price adjustments in connection with the
acquisition or disposition of assets, including, without limitation,
shares of Capital Stock.
(x) Acquired Debt of a Person, other than Debt incurred in
connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary or the acquisition of assets from such Person,
as the case may be, provided that the Company on a pro forma basis
could incur $1.00 of additional Debt (other than Permitted Debt)
pursuant to the first paragraph of this Section.
(xi) Any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") by
the Company or any Restricted Subsidiary of any outstanding Debt of
the Company or such Restricted Subsidiary, other than Debt incurred
pursuant to clause (i), (v), (vi), (vii), (viii) or (ix) of this
Section, including any successive refinancings thereof, so long as (A)
any such new Debt is in a principal amount that does not exceed the
principal amount so refinanced, plus the amount of any premium
required to be paid in connection with such refinancing pursuant to
the terms of the Debt refinanced or the amount of any premium
reasonably determined by the Company as necessary to accomplish such
refinancing, plus the amount of expenses of the Company incurred in
connection with such refinancing, (B) in the case of any refinancing
of Subordinated Debt, such new Debt is made subordinate to the
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Notes at least to the same extent as the Debt being refinanced, (C) in
the case of any refinancing of the Notes or any Pari Passu Debt, such
Debt is Pari Passu Debt or Subordinated Debt and (D) such refinancing
Debt does not have a Weighted Average Life less than the Weighted
Average Life of the Debt being refinanced and does not have a final
scheduled maturity earlier than the final scheduled maturity, or
permit redemption at the option of the holder earlier than the
earliest date of redemption at the option of the holder, of the Debt
being refinanced.
SECTION 1010. LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, take any of the following
actions:
(a) declare or pay any dividend on, or make any distribution
to holders of, any shares of the Capital Stock of the Company or any
of its Restricted Subsidiaries other than (i) dividends or
distributions payable solely in Qualified Equity Interests of the
issuer of such shares of Capital Stock, (ii) dividends or
distributions by a Restricted Subsidiary payable to the Company or
another Restricted Subsidiary or (iii) pro rata dividends or
distributions on common stock of a Restricted Subsidiary held by
minority stockholders, provided that such dividends do not in the
aggregate exceed the minority stockholders' pro rata share of such
Restricted Subsidiary's net income from the first day of the Company's
fiscal quarter during which the Closing Date occurs;
(b) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any shares of Capital Stock (or any
options, warrants or other rights to acquire shares of Capital Stock)
of (i) the Company or any of its Unrestricted Subsidiaries or (ii) any
Restricted Subsidiary that are held by any Affiliate of the Company
(other than, in either case, any such Capital Stock owned by the
Company or any of its Restricted Subsidiaries);
(c) make any principal payment on, or repurchase, redeem,
defease or otherwise acquire or retire for value, prior to any
scheduled principal payment, sinking fund payment or maturity, any
Subordinated Debt; and
(d) make any Investment (other than a Permitted Investment)
in any Person
(such payments or other actions described in (but not excluded from) clauses
(a) through (d) being referred to as "Restricted Payments"), unless at the time
of, and immediately after giving effect to, the proposed Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing,
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(ii) the Company could incur at least $1.00 of additional
Debt (other than Permitted Debt) pursuant to Section 1009, and
(iii) the aggregate amount of all Restricted Payments
declared or made after the Closing Date does not exceed the sum of:
(A) the remainder of (x) 100% of the aggregate
Consolidated Cash Flow for the period beginning on the first
day of the Company's fiscal quarter during which the Closing
Date occurs and ending on the last day of the Company's most
recent fiscal quarter for which internal financial statements
are available ending prior to the date of such proposed
Restricted Payment (the "Computation Period") minus (y) the
product of 1.4 times the sum of (i) Consolidated Fixed
Charges for the Computation Period and (ii) all dividends or
other distributions paid in cash by the Company or any of its
Restricted Subsidiaries on any Disqualified Stock of the
Company or any of its Restricted Subsidiaries for the
Computation Period; plus
(B) the aggregate net proceeds received by the
Company after the Closing Date (including the fair market
value of property other than cash as determined by the
Company's Board of Directors, whose good faith determination
shall be conclusive) from the issuance or sale (other than to
a Subsidiary) of Qualified Equity Interests of the Company
(excluding from this computation any net proceeds of a Public
Equity Offering received by the Company that are used by it
to redeem the Notes, as discussed above); plus
(C) the aggregate net proceeds received by the
Company after the Closing Date (including the fair market
value of property other than cash as determined by the
Company's Board of Directors, whose good faith determination
shall be conclusive) from the issuance or sale (other than to
a Subsidiary) of debt securities or Disqualified Stock that
have been converted into or exchanged for Qualified Stock of
the Company, together with the aggregate net cash proceeds
received by the Company at the time of such conversion or
exchange; plus
(D) without duplication, the Net Cash Proceeds
received by the Company or a Wholly Owned Restricted
Subsidiary upon the sale of any of its Unrestricted
Subsidiaries; plus
(E) $5,000,000.
Notwithstanding the foregoing, the Company and any of its
Restricted Subsidiaries may take any of the following actions, so long as (with
respect to clauses (f) and (g) below) no Default or Event of Default shall have
occurred and be continuing or would occur:
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(a) The payment of any dividend within 60 days after the date
of declaration thereof, if at the declaration date such payment would
not have been prohibited by the foregoing provision.
(b) The repurchase, redemption or other acquisition or
retirement for value of any shares of Capital Stock of the Company, in
exchange for, or out of the net cash proceeds of a substantially
concurrent issuance and sale (other than to a Subsidiary) of,
Qualified Equity Interests of the Company.
(c) The purchase, redemption, defeasance or other acquisition
or retirement for value of Subordinated Debt in exchange for, or out
of the net cash proceeds of a substantially concurrent issuance and
sale (other than to a Restricted Subsidiary) of shares of, Qualified
Stock of the Company.
(d) The purchase, redemption, defeasance or other acquisition
or retirement for value of Subordinated Debt in exchange for, or out
of the net cash proceeds of a substantially concurrent issuance or
sale (other than to a Subsidiary) of, Subordinated Debt, so long as
the Company or a Restricted Subsidiary would be permitted to refinance
such original Subordinated Debt with such new Subordinated Debt
pursuant to clause (xi) of the definition of Permitted Debt.
(e) The repurchase of any Subordinated Debt at a purchase
price not greater than 101% of the principal amount of such
Subordinated Debt in the event of a "change of control" in accordance
with provisions similar to Section 1011; provided that, prior to such
repurchase, the Company has made the Change of Control Offer as
provided in such Section with respect to the Notes and has repurchased
all Notes validly tendered for payment in connection with such Change
of Control Offer.
(f) The payment by the Company to Citadel Communications for
the purpose of the purchase, redemption, acquisition, cancellation or
other retirement for value of shares of Capital Stock of Citadel
Communications, options on any such shares or related stock
appreciation rights or similar securities held by officers or
employees or former officers or employees (or their estates or
beneficiaries under their estates) or by any employee benefit plan,
upon death, disability, retirement or termination of employment or
pursuant to the terms of any employee benefit plan or any other
agreement under which such shares of stock or related rights were
issued; provided that the aggregate cash consideration paid for such
purchase, redemption, acquisition, cancellation or other retirement of
such shares of Capital Stock after the date of the Closing Date does
not exceed $1,000,000 in any fiscal year.
(g) Loans or advances to officers, directors and employees of
Citadel Communications, the Company or any of its Restricted
Subsidiaries made in the ordinary
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course of business after the Closing Date in an aggregate principal
amount not to exceed $1,000,000 at any one time outstanding.
(h) Payments to or on behalf of Citadel Communications to pay
its operating and administrative expenses attributable to the Company,
including, without limitation, legal and audit expenses, directors'
fees, fees payable in respect of the trustee and back-up trustees
under the Voting Trust Agreement, and Commission compliance expenses,
in an amount not to exceed the greater of $1,000,000 per fiscal year
and 1% of the net revenues of the Company for the preceding fiscal
year.
(i) Repayment of the note payable of the Company to Citadel
Communications outstanding as of the Closing Date in an amount not to
exceed $12,817,000 plus all accrued and unpaid interest thereon to the
Closing Date.
The payments described in clauses (b), (c), (e), (f) and (g)
of this paragraph shall be Restricted Payments that shall be permitted to be
taken in accordance with this paragraph but shall reduce the amount that would
otherwise be available for Restricted Payments under the foregoing clause
(iii), and the payments described in clauses (a), (d), (h) and (i) of this
paragraph shall be Restricted Payments that shall be permitted to be taken in
accordance with this paragraph and shall not reduce the amount that would
otherwise be available for Restricted Payments under the foregoing clause
(iii).
For the purpose of making any calculations under this
Indenture (i) if a Restricted Subsidiary is designated an Unrestricted
Subsidiary, the Company shall be deemed to have made an Investment in an amount
equal to the fair market value of the net assets of such Restricted Subsidiary
at the time of such designation as determined by the Board of Directors of the
Company, whose good faith determination shall be conclusive, (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at fair
market value at the time of such transfer, as determined by the Board of
Directors of the Company, whose good faith determination shall be conclusive
and (iii) subject to the foregoing, the amount of any Restricted Payment, if
other than cash, shall be determined by the Board of Directors of the Company,
whose good faith determination shall be conclusive.
If the aggregate amount of all Restricted Payments calculated
under the foregoing provision includes an Investment in an Unrestricted
Subsidiary or other Person that thereafter becomes a Restricted Subsidiary,
such Investment shall no longer be counted as a Restricted Payment for purposes
of calculating the aggregate amount of Restricted Payments.
If an Investment resulted in the making of a Restricted
Payment, the aggregate amount of all Restricted Payments calculated under the
foregoing provision shall be reduced by the amount of any net reduction in such
Investment (resulting from the payment of interest or dividends, loan
repayment, transfer of assets or otherwise), to the extent such net reduction
is
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not included in Consolidated Adjusted Net Income; provided that the total
amount by which the aggregate amount of all Restricted Payments may be reduced
may not exceed the lesser of (x) the cash proceeds received by the Company and
any of its Restricted Subsidiaries in connection with such net reduction and
(y) the initial amount of such Investment.
In computing Consolidated Adjusted Net Income for purposes of
the foregoing clause (iii)(A), (i) the Company may use audited financial
statements for the portions of the relevant period for which audited financial
statements are available on the date of determination and unaudited financial
statements and other current financial data based on the books and records of
the Company for the remaining portion of such period and (ii) the Company shall
be permitted to rely in good faith on the financial statements and other
financial data derived from the books and records of the Company that are
available on the date of determination. If the Company makes a Restricted
Payment that, at the time of the making of such Restricted Payment, would in
the good faith determination of the Company be permitted under the requirements
of this Indenture, such Restricted Payment shall be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to the Company's financial statements affecting Consolidated
Adjusted Net Income of the Company for any period.
SECTION 1011. PURCHASE OF NOTES UPON A CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder shall
have the right to require the repurchase of its Notes by the Company, in whole
or in part in integral multiples of $1,000, in cash pursuant to the offer
described below (the "Change of Control Offer") at a purchase price equal to
101% of the principal amount thereof as of the Change of Control Purchase Date,
plus accrued and unpaid interest to such date (the "Change of Control
Payment").
Within 30 days following any Change of Control, the Company
shall notify the Trustee thereof and give written notice of such Change of
Control to each Holder of Notes by first-class mail, postage prepaid, at its
address appearing in the Note Register, stating:
(i) that a Change of Control has occurred, that the Change of
Control Offer is being made pursuant to this Section 1011 and that all
Notes validly tendered shall be accepted for payment;
(ii) the purchase price and the purchase date, which shall be
a Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed or such later date as is necessary to
comply with requirements under the Exchange Act (the "Change of
Control Purchase Date");
(iii) that any Note not tendered shall continue to accrue
interest;
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(iv) that, unless the Company defaults in the payment of the
Change of Control Payment, any Notes accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest after the
Change of Control Purchase Date;
(v) that a Holder electing to have any Note or a portion
thereof purchased pursuant to the Change of Control Offer shall be
required to surrender such Note to the Paying Agent at the address
specified in the notice prior to the close of business on the Business
Day immediately preceding the Change of Control Purchase Date;
(vi) that the Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close of
business on the third Business Day immediately preceding the Change in
Control Purchase Date, facsimile transmission, telex or letter setting
forth the name of such Holder, the principal amount of Notes delivered
for purchase and a statement that such Holder is withdrawing its
election to have such Notes purchased;
(vii) that the Holders whose Notes are being purchased only
in part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of
$1,000 or an integral multiple thereof (unless the Company otherwise
directs); and
(viii) certain other procedures that a Holder must follow to
accept a Change of Control Offer or to withdraw such acceptance.
On the Change of Control Purchase Date, the Company shall:
(i) accept for payment Notes or portions thereof tendered pursuant to the
Change of Control Offer; (ii) deposit with the Paying Agent money sufficient to
pay the purchase price of all Notes or portions thereof so accepted; and (iii)
deliver, or cause to be delivered, to the Trustee, all Notes or portions
thereof so accepted together with an Officers' Certificate specifying the Notes
or portions thereof accepted for payment by the Company. The Paying Agent shall
promptly mail to the Holders of Notes so accepted payment in an amount equal to
the purchase price, and the Trustee shall promptly authenticate and mail to
such Holders a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered; provided that each Note purchased and each new Note
issued shall be in a principal amount of $1,000 or an integral multiple thereof
(unless the Company otherwise directs).
The Company shall comply with the applicable tender offer
rules including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws and regulations to the extent such laws and regulations are
applicable in the event that a Change of Control occurs and the Company is
required to repurchase the Notes under this Section 1011.
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The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create any restriction (other than restrictions
existing under Debt as in effect on the Closing Date or in any renewals,
extensions, substitutions refinancings or replacements of such Debt that would
materially impair the ability of the Company to make a Change of Control Offer
to purchase the Notes or, if such Change of Control Offer is made, to pay for
the Notes tendered for purchase.
To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 1011, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Indenture.
SECTION 1012. LIMITATION ON CERTAIN ASSET SALES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, engage in any Asset Sale unless (i) the
consideration received by the Company or such Restricted Subsidiary for such
Asset Sale is not less than the fair market value of the assets sold (as
determined by the Board of Directors of the Company, whose good faith
determination shall be conclusive) and (ii) the consideration received by the
Company or the relevant Restricted Subsidiary in respect of such Asset Sale
consists of at least 80% (A) cash or cash equivalents and/or (B) the assumption
by the transferee of Debt of the Company or a Restricted Subsidiary ranked
senior to or pari passu with the Notes and release of the Company or such
Restricted Subsidiary from all liability on such Debt.
(b) If the Company or any of its Restricted Subsidiaries
engages in an Asset Sale, the Company may, at its option, within 12 months
after such Asset Sale, (i) apply all or a portion of the Net Cash Proceeds to
the permanent reduction of amounts outstanding under the Credit Facility or to
the repayment of other Senior Debt of the Company or a Subsidiary Notes
Guarantor or (ii) invest (or enter into one or more legally binding agreements
to invest) all or a portion of such Net Cash Proceeds in properties and assets
to replace the properties and assets that were the subject of the Asset Sale or
in properties and assets that shall be used in the broadcast business or
businesses reasonably related thereto. If any such legally binding agreement to
invest such Net Cash Proceeds is terminated, the Company may, within 90 days of
such termination or within 12 months of such Asset Sale, whichever is later,
invest such Net Cash Proceeds as provided in clause (i) or (ii) (without regard
to the parenthetical contained in such clause (ii)) above. The amount of such
Net Cash Proceeds not so used as set forth above in this paragraph (b)
constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds
$5,000,000, the Company shall make an offer to all Holders of Notes (an "Asset
Sale Offer") to purchase, on a pro rata basis, the maximum principal amount of
Notes, that is an integral multiple of $1,000, that may be purchased with the
Excess Proceeds, at a purchase price in cash equal to 100% of
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the principal amount thereof, plus accrued and unpaid interest, if any, to the
date fixed for the closing of such offer (the "Offered Price"). Within 30 days
after the date on which the aggregate amount of Excess Proceeds exceeds
$5,000,000, the Company shall give to each Holder of the Notes, with a copy to
the Trustee, in the manner provided in Section 106 a notice stating:
(i) that the Holder has the right to require the Company to
repurchase such Holder's Notes at the Offered Price, subject to
proration in the event the Excess Proceeds are less than the aggregate
Offered Price of all Notes tendered;
(ii) the date of purchase of Notes pursuant to the Asset Sale
Offer (the "Asset Sale Purchase Date"), which shall be no earlier than
30 days nor later than 60 days from the date such notice is mailed;
(iii) that the Offered Price shall be paid to Holders
electing to have Notes purchased on the asset Sale Purchase Date,
provided that a Holder must surrender its Note to the Paying Agent at
the address specified in the notice prior to the close of business at
least five Business Days prior to the Asset Sale Purchase Date;
(iv) any Note not tendered shall continue to accrue interest
pursuant to its terms;
(v) that unless the Company defaults in the payment of the
Offered Price, any Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest on and after the Asset Sale
Purchase Date;
(vi) that Holders shall be entitled to withdraw their
tendered Notes and their election to require the Company to purchase
such Notes, provided that the Company receives, not later than the
close of business on the third Business Day preceding the Asset Sale
Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount and serial
numbers of the Notes tendered for purchase, and a statement that such
Holder is withdrawing its election to have such Notes purchased;
(vii) that the Holders whose Notes are being purchased only
in part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered; which unpurchased
portion must be equal to $1,000 in principal amount or an integral
multiple thereof (unless the Company otherwise directs); and
(viii) the instructions a Holder must follow in order to have
his Notes purchased in accordance with this Section 1012.
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To the extent that the aggregate amount of Notes tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use the deficiency for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Notes to be purchased shall be selected on a pro rata
basis. Upon completion of any such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of this Section 1012, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
under this Indenture.
SECTION 1013. LIMITATION ON ASSET SWAPS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, engage in any Asset Swap, unless:
(i) at the time of entering into the Asset Swap and
immediately after giving effect to the proposed Asset Swap, no Default
or Event of Default shall have occurred and be continuing or would
occur as a consequence thereof;
(ii) the Company would, at the time of entering into the
Asset Swap and after giving pro forma effect to the proposed Asset
Swap, as if such Asset Swap had occurred at the beginning of the
applicable four-quarter period, have been permitted to incur at least
$1.00 of additional Debt (other than Permitted Debt) pursuant to the
first paragraph of Section 1009;
(iii) the respective aggregate fair market values of the
assets being purchased and sold by the Company or any of its
Restricted Subsidiaries are substantially the same at the time of
entering into the Asset Swap (or any difference in such aggregate fair
market value is substantially compensated for by an equalizing (i)
payment of cash, (ii) assumption of liabilities or (iii) taking of
assets subject to liabilities); and
(iv) at the time of the consummation of the first to occur of
the relinquishment or the replacement of assets constituting part of
the proposed Asset Swap, the percentage of any decline in the fair
market value of the asset or assets being acquired by the Company and
its Restricted Subsidiaries shall not be significantly greater than
the percentage of any decline in the fair market value of the assets
being disposed of the
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Company, calculated from the time the last agreement constituting part
of the Asset Swap was entered into.
SECTION 1014. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction with, or for the benefit of, any Affiliate of the Company
unless:
(a) such transaction is on terms that are no less favorable
to the Company or such Restricted Subsidiary, as the case may be, than
those that could have been obtained in an arm's length transaction
with third parties who are not Affiliates and
(b) either (i) with respect to any transaction or series of
transactions involving aggregate payments in excess of $1,000,000, but
less than $5,000,000, the Company delivers an Officers' Certificate to
the Trustee certifying that such transaction or transactions comply
with clause (a) above or (ii) with respect to a transaction or series
of transactions involving aggregate payments equal to or greater than
$5,000,000, such transaction or transactions have been approved by the
Board of Directors (including a majority of the Disinterested
Directors) of the Company or the Company has obtained a written
opinion from a nationally recognized investment banking firm to the
effect that such transaction or transactions are fair to the Company
or such Restricted Subsidiary from a financial point of view.
The foregoing provisions shall not restrict any of the
following:
(A) Transactions among the Company and/or any of its
Restricted Subsidiaries.
(B) The Company from paying reasonable and customary
regular compensation, fees, indemnification and similar
arrangements and payments thereunder to directors of the
Company or any of its Restricted Subsidiaries who are not
employees of the Company or any of its Restricted
Subsidiaries.
(C) Employment agreements or compensation or
employee benefits arrangements with any officer, director or
employee of the Company or its Restricted Subsidiaries
entered into in the ordinary course of business (including
customary benefits thereunder) (it being understood that
benefits of the nature in place as of the Closing Date shall
be deemed permissible hereunder).
(D) The performance of the Company's obligations
under (a) that certain lease agreement effective December 29,
1995 with Xxxxxx Aviation,
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L.L.C. relating to the lease of an airplane, (b) that certain
agreement not to compete dated December 31, 1996 with DVS
Management, Inc. and (c) that certain Voting Trust Agreement
dated March 17, 1997 among Citadel Communications, ABRY
Broadcast Partners II, L.P., ABRY/Citadel Investment
Partners, L.P. and others and the related letter agreement
dated March 17, 1997 among Citadel Communications, ABRY
Broadcast Partners II, L.P., ABRY/Citadel Investment
Partners, L.P. and others (the "Affiliate Agreements");
provided that any amendments or modifications to the terms of
the Affiliate Agreements (1) are no less favorable to the
Company than those that could have been obtained in an arm's
length transaction with third parties who are not Affiliates
and (2) are approved by the Board of Directors (including a
majority of the Disinterested Directors) of the Company.
(E) The Company from making payments to Citadel
Communications to pay its operating and administrative
expenses attributable to the Company including, without
limitation, legal and audit expenses, directors' fees and
Commission compliance expenses, in an amount not to exceed
the greater of $1,000,000 per fiscal year and 1% of the net
revenues of the Company for the preceding fiscal year.
(F) The Company or a Restricted Subsidiary from
transferring up to $500,000 of properties and assets,
including cash, to a joint venture in which the Company or a
Restricted Subsidiary has an equity interest and in which one
or more directors or officers of the Company or Citadel
Communications has an equity interest, which joint venture is
engaged in the internet service provider business.
(G) The Company from repaying the note payable of
the Company to Citadel Communications outstanding as of the
Closing Date in an amount not to exceed $12,817,000 plus all
accrued and unpaid interest thereon to the Closing Date.
SECTION 1015. LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any of its Restricted Subsidiaries to
(a) pay dividends, in cash or otherwise, or make any other distributions on or
in respect of its Capital Stock, (b) pay any Debt owed to the Company or any
other Restricted Subsidiary, (c) make loans or advances to the Company or any
other Restricted Subsidiary or
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(d) transfer any of its properties or assets to the Company or any other
Restricted Subsidiary, except for such encumbrances or restrictions existing
under or by reason of any of the following:
(i) The Credit Facility and any agreement in effect on the
Closing Date and listed on a schedule attached to this Indenture.
(ii) Customary non-assignment provisions of any lease
governing a leasehold interest of the Company or any of its Restricted
Subsidiaries.
(iii) The refinancing or successive refinancings of Debt
referred to in clause (i) or (iv), so long as such encumbrances or
restrictions are no less favorable to the Company or any of its
Restricted Subsidiaries than those contained in such original
agreement.
(iv) Any agreement or other instrument of a Person acquired
by the Company or any of its Restricted Subsidiaries in existence at
the time of such acquisition (but not created in contemplation
thereof), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the
Person, or the property or assets of the Person, so acquired.
(v) Any agreement providing for the incurrence of Debt by a
Restricted Subsidiary in compliance with Section 1009 provided that
such Restricted Subsidiary becomes a Subsidiary Notes Guarantor.
SECTION 1016. LIMITATION ON ISSUANCES AND SALES OF CAPITAL
STOCK OF RESTRICTED SUBSIDIARIES.
The Company shall not sell, and shall not permit any of its
Restricted Subsidiaries, directly or indirectly, to issue or sell, any shares
of Capital Stock of a Restricted Subsidiary (including options, warrants or
other rights to purchase shares of such Capital Stock) except (i) to the
Company or a Wholly Owned Restricted Subsidiary, (ii) issuances or sales to
foreign nationals of shares of Capital Stock of foreign Restricted
Subsidiaries, to the extent required by applicable law, or issuances or sales
to directors of directors' qualifying shares, (iii) if, immediately after
giving effect to such issuance or sale, neither the Company nor any Subsidiary
owns any shares of Capital Stock of such Restricted Subsidiary (including
options, warrants or other rights to purchase shares of such Capital Stock) or
(iv) if, immediately after giving effect to such issuance or sale, such
Restricted Subsidiary would no longer constitute a Restricted Subsidiary and
any Investment in such Person remaining after giving effect to such issuance or
sale would have been permitted to be made under Section 1010 if made on the
date of such issuance or sale.
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In addition, the Company shall not, and shall not permit any
of its Restricted Subsidiaries to, sell, transfer or otherwise dispose of any
of its properties or assets to an Unrestricted Subsidiary other than in the
ordinary course of business.
SECTION 1017. LIMITATION ON UNRESTRICTED SUBSIDIARIES.
(a) The Board of Directors of the Company may designate any
Subsidiary (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary so long as (i) neither the Company nor any of its
Restricted Subsidiaries is directly or indirectly liable for any Debt of such
Subsidiary, (ii) no default with respect to any Debt of such Subsidiary would
permit (upon notice, lapse of time or otherwise) any holder of any other Debt
of the Company or any of its Restricted Subsidiaries to declare a default on
such other Debt or cause the payment thereof to be accelerated or payable prior
to its stated maturity, (iii) any Investment in such Subsidiary made as a
result of designating such Subsidiary an Unrestricted Subsidiary shall not
violate Section 1010, (iv) neither the Company nor any of its Restricted
Subsidiaries has a contract, agreement, arrangement, understanding or
obligation of any kind, whether written or oral, with such Subsidiary other
than those that might be obtained at the time from Persons who are not
Affiliates of the Company and (v) neither the Company nor any Restricted
Subsidiary has any obligation to subscribe for additional shares of Capital
Stock or other equity interest in such Subsidiary, or to maintain or preserve
such Subsidiary's financial condition or to cause such Subsidiary to achieve
certain levels of operating results. Notwithstanding the foregoing, the Company
may not designate the License Subsidiary, or any Subsidiary to which any
properties or assets (other than current assets) owned by the Company or the
License Subsidiary on the Closing Date have been transferred, as an
Unrestricted Subsidiary.
(b) The Board of Directors of the Company may designate any
of its Unrestricted Subsidiaries as a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Debt by a Restricted
Subsidiary of any outstanding Debt of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Debt is permitted under Section
1009 and (ii) no Default or Event of Default shall have occurred and be
continuing following such designation.
SECTION 1018. LIMITATION ON OTHER SENIOR SUBORDINATED DEBT.
The Company and each Subsidiary Notes Guarantor shall not,
directly or indirectly, incur or otherwise permit to exist any Debt that is
subordinate in right of payment to any Debt of the Company or such Subsidiary
Notes Guarantor, as the case may be, unless such Debt is also pari passu with
the Notes or the Subsidiary Notes Guarantee of the Notes by such Subsidiary
Notes Guarantor, as the case may be, or subordinate in right of payment to the
Notes or such Subsidiary Notes Guarantee of the Notes, as the case may be, to
at least the same extent as the Notes or such Subsidiary Notes Guarantee are
subordinate in right of payment to
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Senior Debt or all senior debt of the Subsidiary Notes Guarantors, as the case
may be, as set forth in this Indenture.
SECTION 1019. SUBSIDIARY NOTES GUARANTEES.
The Subsidiary Notes Guarantors shall, jointly and severally,
unconditionally guarantee the due and punctual payment of the principal of,
premium, if any, and interest on the Notes on a senior subordinated basis
pursuant to the Subsidiary Notes Guarantees as described in Article Thirteen.
The Subsidiary Notes Guarantors may be released from their obligations under
the Subsidiary Notes Guarantees as described in Article Twelve and a Subsidiary
Notes Guarantor may be released from its obligations under its Subsidiary Notes
Guarantee as described in Article Thirteen.
The Company shall (i) cause each Person that, after the
Closing Date, becomes a Wholly Owned Restricted Subsidiary of the Company, as
well as each other Restricted Subsidiary that guarantees any other Debt of the
Company, to execute and deliver a supplemental indenture and thereby become a
Subsidiary Notes Guarantor bound by the Subsidiary Notes Guarantee of the Notes
in the form set forth in this Indenture (without such Subsidiary Notes
Guarantor being required to execute and deliver its Subsidiary Notes Guarantee
endorsed on the Notes) and (ii) deliver to the Trustee an Opinion of Counsel,
in form and substance reasonably satisfactory to the Trustee, that the
Subsidiary Notes Guarantee of such Subsidiary Notes Guarantor is a valid and
legally binding obligation of such Subsidiary Notes Guarantor.
SECTION 1020. LIMITATION ON GUARANTEES OF DEBT BY RESTRICTED
SUBSIDIARIES.
The Company shall not permit any of its Restricted
Subsidiaries that is not a Subsidiary Notes Guarantor, directly or indirectly,
to guarantee, assume or in any other manner become liable for the payment of
any Debt of the Company or any Debt of any other Restricted Subsidiary, unless
(a) such Restricted Subsidiary simultaneously executes and delivers a
Subsidiary Notes Guarantee and (b) with respect to any guarantee of
Subordinated Debt by a Restricted Subsidiary, any such guarantee is
subordinated to such Restricted Subsidiary's Subsidiary Notes Guarantee at
least to the same extent as such Subordinated Debt is subordinated to the
Notes, provided that the foregoing provision shall not be applicable to any
guarantee by any such Restricted Subsidiary that existed at the time such
Person became a Restricted Subsidiary and was not incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary.
SECTION 1021. LIMITATION ON LIENS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create, incur, affirm or suffer to exist any Lien
of any kind securing any Pari Passu Debt or Subordinated Debt (including any
assumption, guarantee or other liability with respect thereto
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by any Restricted Subsidiary) upon any property or assets (including any
intercompany notes) of the Company or any of its Restricted Subsidiaries now
owned or acquired after the Closing Date, or any income or profits therefrom,
unless the Notes are directly secured equally and ratably with (or prior to in
the case of Subordinated Debt) the obligation or liability secured by such
Lien; provided that the foregoing shall not apply to Liens securing Debt of a
Person acquired by the Company or any of its Restricted Subsidiaries in
existence at the time of such acquisition (but not created in contemplation
thereof), which Lien is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the
Person, so acquired.
SECTION 1022. COMMISSION REPORTS AND REPORTS TO HOLDERS.
At all times from and after the earlier of (i) the date of
the commencement of the Notes Exchange Offer or the effectiveness of the Notes
Shelf Registration Statement (the "Registration") and (ii) the date 180 days
after the Closing Date, in either case, whether or not the Company is then
required to file reports with the Commission, the Company shall file with the
Commission all such reports and other information as it would be required to
file with the Commission by Section 13(a) or 15(d) under the Exchange Act if it
were subject thereto. The Company shall supply the Trustee and each Holder, or
shall supply to the Trustee for forwarding to each such Holder, without cost to
such Holder, copies of such reports and other information. In addition, at all
times prior to the earlier of the date of the Registration and the date 180
days after the Closing Date, the Company shall, at its cost, deliver to each
Holder of the Notes quarterly and annual reports substantially equivalent to
those that would be required by the Exchange Act. In addition, at all times
prior to the Registration, upon the request of any Holder or any prospective
purchaser of the Notes designated by a Holder, the Company shall supply to such
Holder or such prospective purchaser the information required under Rule 144A
under the Securities 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 Company's
compliance with any of its covenants hereunder.
SECTION 1023. STATEMENT AS TO COMPLIANCE.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year, commencing with the fiscal year ending
December 31, 1997, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing officers with a view to
determining whether it has kept, observed, performed and fulfilled, and has
caused each of its Subsidiaries to keep, observe, perform and fulfill, its
obligations under this Indenture and further stating, as to each such officer
signing such certificate, that, to the best of his or her
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knowledge, the Company during such preceding fiscal year has kept, observed,
performed and fulfilled, and has caused each of its Subsidiaries to keep,
observe, perform and fulfill, each and every such covenant contained in this
Indenture and no Default or Event of Default occurred during such year and at
the date of such certificate there is no Default or Event of Default which
shall have occurred and be continuing or, if such signers do know of such
Default or Event of Default, the certificate shall describe its status, with
particularity and that, to the best of his or her knowledge, no event has
occurred and remains by reason of which payments on the account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action each is taking or
purposes to take with respect thereto. The Officers' Certificate shall also
notify the Trustee should the Company elect to change the manner in which it
fixes its fiscal year end. For purposes of this Section 1023(a), such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) When any Default shall have occurred and be continuing
under this Indenture, or if the trustee for or the holder of any other evidence
of Debt of the Company or any Subsidiary gives any notice or takes any other
action with respect to a claimed default (other than with respect to Debt in
the principal amount of less than $10 million), the Company shall deliver to
the Trustee by registered or certified mail or facsimile transmission an
Officers' Certificate specifying such event, notice or other action within five
days of any officer of the Company having knowledge of any Default.
SECTION 1024. DELIVERY OF CERTAIN INFORMATION.
If specified as contemplated by Section 301 with respect to a
series of Notes, at any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, upon the request of a Holder, the Company will
promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder or to a prospective purchaser of such Notes designated by
such Holder in connection with the resale of such Notes by such Holder. "Rule
144A Information" shall mean such information as is specified pursuant to Rule
144A(d)(4) under the Securities Act as in effect on the date hereof.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. REDEMPTION.
The Notes may or shall, as the case may be, be redeemed, as a
whole or from time to time in part, subject to the conditions and at the
Redemption Prices specified in the form of Note, together with accrued interest
to the Redemption Date.
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SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Notes at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Notes to be redeemed and shall deliver to
the Trustee such documentation and records as shall enable the Trustee to
select the Notes to be redeemed pursuant to Section 1104.
SECTION 1104. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Notes not previously
called for redemption, in compliance with the requirements of the principal
national securities exchange, if any, on which such Notes are listed, or, if
such Notes are not so listed, on a pro rata basis, by lot or by such other
method as the Trustee shall deem fair and appropriate (and in such manner as
complies with applicable legal requirements) and which may provide for the
selection for redemption of portions of the principal of Notes; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Note not redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall
relate, in the case of any Note redeemed or to be redeemed only in part, to the
portion of the principal amount of such Note which has been or is to be
redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided
for in Section 106 not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed. The Trustee shall give
notice of redemption in the Company's name and at the
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Company's expense; provided, however, that the Company shall deliver to the
Trustee, at least 45 days prior to the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee), an Officers' Certificate requesting that
the Trustee give such notice and setting forth the information to be stated in
such notice as provided in the following items.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest
to the Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Notes are to be redeemed,
the identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption,
(4) in case any Note is to be redeemed in part only, the
notice which relates to such Note shall state that on and after the
Redemption Date, upon surrender of such Note, the Holder shall
receive, without charge, a new Note or Notes of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and
accrued interest, if any, to the Redemption Date payable as provided
in Section 1107) shall become due and payable upon each such Note, or
the portion thereof, to be redeemed, and, unless the Company defaults
in making the redemption payment, that interest on Notes called for
redemption (or the portion thereof) shall cease to accrue on and after
said date,
(6) the place or places where such Notes are to be
surrendered for payment of the Redemption Price and accrued interest,
if any,
(7) the name and address of the Paying Agent,
(8) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price,
(9) the CUSIP number, and that no representation is made as
to the accuracy or correctness of the CUSIP number, if any, listed in
such notice or printed on the Notes, and
(10) the paragraph of the Notes pursuant to which the Notes
are to be redeemed.
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SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and accrued interest
on, all the Notes which are to be redeemed on that date.
SECTION 1107. NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Notes so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified (together with accrued interest, if
any, to the Redemption Date), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest) such
Notes shall cease to bear interest. Upon surrender of any such Note for
redemption in accordance with said notice, such Note shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Notes, or one or more Predecessor Notes, registered as such at the
close of business on the relevant Regular Record Date or Special Record Date,
as the case may be, according to their terms and the provisions of Section 311.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Notes.
SECTION 1108. NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part (pursuant to
the provisions of this Article) shall be surrendered at the office or agency of
the Company maintained for such purpose pursuant to Section 1002 (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holders attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Note without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Note so surrendered, provided, that each such new Note shall be in a
principal amount of $1,000 or integral multiple thereof (unless the Company
otherwise directs).
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ARTICLE TWELVE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. COMPANY'S OPTION TO EFFECT LEGAL DEFEASANCE OR
COVENANT DEFEASANCE.
The Company and the Subsidiary Notes Guarantors may, at their
option by Board Resolution, at any time, with respect to the Notes, elect to
have either Section 1202 or Section 1203 be applied to all Outstanding Notes
upon compliance with the conditions set forth below in this Article Twelve.
SECTION 1202. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company and any Subsidiary Notes Guarantor
shall be deemed to have been discharged from their obligations with respect to
all Outstanding Notes on the date the conditions set forth in Section 1204 are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company and any such Guarantor shall be deemed to
have paid and discharged the entire Debt represented by the Outstanding Notes,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 1205 and the other Sections of this Indenture referred to in (A) and
(B) below, and to have satisfied all its other obligations under such Notes and
this Indenture insofar as such Notes are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Notes to
receive payments in respect of the principal of (and premium, if any, on) and
interest on such Notes when such payments are due, (B) the Company's
obligations to issue temporary Notes, register the transfer or exchange of any
Notes, replace mutilated, destroyed, lost or stolen Notes, maintain an office
or agency for payments in respect of the Notes and segregate and hold such
payments in trust, (C) the rights, powers, trusts, duties and immunities of the
Trustee and (D) the defeasance provisions of this Indenture.
Subject to compliance with this Article Twelve, the Company
may exercise its option under this Section 1202 notwithstanding the prior
exercise of its option under Section 1203 with respect to the Notes.
SECTION 1203. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1203, the Company shall be released from its
obligations under any covenant contained in Section 801 and in Sections 1006
through 1022 with respect to the Outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
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and the Notes shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders
(and the consequences of any thereof) in connection with such covenants, but
shall continue to be deemed "Outstanding" for all other purposes hereunder (it
being understood that such Notes shall not be outstanding for accounting
purposes). For this purpose, such Covenant Defeasance means that, with respect
to the Outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
501(d), but, except as specified above, the remainder of this Indenture and
such Notes shall be unaffected thereby.
SECTION 1204. CONDITIONS TO LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to application of
either Section 1202 or Section 1203 to the Outstanding Notes:
(a) the Company must irrevocably deposit or cause to be
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 Notes, money in an amount, or U.S. Government
Obligations that through the scheduled payment of principal and
interest thereon shall provide money in an amount, or a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay and discharge the principal of
(and premium, if any, on) and interest on the outstanding Notes at
maturity (or upon redemption, if applicable) of such principal or
installment of interest;
(b) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as an event of
bankruptcy under Section 501(h) or (i) is concerned, at any time
during the period ending on the 91st day after the date of such
deposit;
(c) such Legal Defeasance or Covenant Defeasance must not
result in a breach or violation of, or constitute a default under,
this Indenture or any material agreement or instrument to which the
Company or any Subsidiary Notes Guarantor is a party or by which it is
bound or cause the Trustee or the trust so created to be subject to
the Investment Company Act of 1940, as amended;
(d) in the case of Legal Defeasance, the Company must deliver
to the Trustee an Opinion of Counsel stating that the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling, or since the date hereof, there has been a change in
applicable federal income tax law, to the effect, and based thereon
such
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opinion must confirm that, the Holders of the outstanding Notes shall
not recognize income, gain or loss for federal income tax purposes as
a result of such Legal Defeasance and shall be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(e) in the case of Covenant Defeasance, the Company must have
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Notes outstanding shall not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and shall be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred; and
(f) the Company must have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal
Defeasance or the Covenant Defeasance, as the case may be, have been
complied with.
SECTION 1205. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1205, the "Trustee") pursuant to Section 1204 in
respect of the Outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal
(and premium, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1204 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be
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required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance, as applicable, in accordance with this Article.
SECTION 1206. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with Section 1205 by reason
of any legal proceeding or by any reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and each Subsidiary Notes Guarantor's
obligations under this Indenture, the Notes and the Subsidiary Notes Guarantees
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1202 or 1203, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1205; provided, however, that if the Company or any Subsidiary Notes Guarantor
makes any payment of principal of (or premium, if any) or interest on any Note
following the reinstatement of its obligations, the Company or such Guarantor,
as the case may be, shall be subrogated to the rights of the Holders of such
Notes to receive such payment from the money and U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE THIRTEEN
SUBSIDIARY NOTES GUARANTEES
SECTION 1301. SUBSIDIARY GUARANTEES.
(a) Each Subsidiary Notes Guarantor hereby, jointly and
severally, fully, absolutely, unconditionally and irrevocably guarantees to
each Holder of a Note authenticated and delivered by the Trustee, and to the
Trustee on behalf of each Holder, the punctual payment and performance when due
of all Indenture Obligations which, for purposes of its Subsidiary Notes
Guarantee, shall also be deemed to include all commissions, fees, charges,
costs and other expenses (including reasonable legal fees and disbursements of
counsel) arising out of or incurred by the Trustee or the Holders in connection
with the enforcement of any Subsidiary Notes Guarantee. Without limiting the
generality of the foregoing, each Subsidiary Notes Guarantor's liability shall
extend to all amounts that constitute part of the Indenture Obligations and
would be owed by the Company to such Holder or the Trustee under the Notes or
this Indenture but for the fact that they are unenforceable, reduced, limited,
suspended or not allowable due to the existence of a bankruptcy, reorganization
or similar proceeding involving the Company.
(b) Each Subsidiary Notes Guarantor and by its acceptance
hereof each Holder hereby confirms that it is the intention of all such parties
that the guarantee by such Subsidiary
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Notes Guarantor pursuant to its Subsidiary Notes Guarantee not constitute a
fraudulent transfer or conveyance for purposes of any federal or state law. To
effectuate the foregoing intention, the Holders and each Subsidiary Notes
Guarantor hereby irrevocably agree that the obligations of such Subsidiary
Notes Guarantor under its Subsidiary Notes Guarantee shall be limited to the
maximum amount as shall, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Notes Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary Notes
Guarantor in respect of the obligations of such other Subsidiary Notes
Guarantor under its Subsidiary Notes Guarantee or pursuant to paragraph (c) of
this Section 1301 result in the obligations of such Subsidiary Notes Guarantor
under its Subsidiary Notes Guarantee not constituting a fraudulent conveyance
or fraudulent transfer under federal or state law.
(c) In order to provide for just and equitable contribution
among the Subsidiary Notes Guarantors, the Subsidiary Notes Guarantors agree,
inter se, that in the event any payment or distribution is made by any
Subsidiary Notes Guarantor (a "Funding Guarantor") under its Subsidiary Notes
Guarantee, such Funding Guarantor shall be entitled to a contribution from each
other Subsidiary Notes Guarantor in a pro rata amount based on the Adjusted Net
Assets of each Subsidiary Notes Guarantor (including the Funding Guarantor) for
all payments, damages and expenses incurred by the Funding Guarantor in
discharging the Indenture Obligations of the Company or any other Subsidiary
Notes Guarantor's obligations with respect to its Subsidiary Notes Guarantee.
"Adjusted Net Assets" of such Subsidiary Notes Guarantor at any date shall mean
the lesser of (x) the amount by which the fair value of the property of such
Subsidiary Notes Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date), but
excluding liabilities under the Subsidiary Notes Guarantee of such Subsidiary
Notes Guarantor at such date and (y) the amount by which the present fair
salable value of the assets of such Subsidiary Notes Guarantor at such date
exceeds the amount that shall be required to pay the probable liability of such
Subsidiary Notes Guarantor on its debts (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date), excluding debt in
respect of the Subsidiary Notes Guarantee, as they become absolute and matured.
SECTION 1302. GUARANTY ABSOLUTE.
Each Subsidiary Notes Guarantor guarantees that the Notes
shall be paid or performed strictly in accordance with the terms of the Notes
and this Indenture, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of any
Holder with respect thereto. The obligations of each Subsidiary Notes Guarantor
under its Subsidiary Notes Guarantee are independent of the obligations of the
Company under the Notes and this Indenture, and a separate action or actions
may be brought and prosecuted against such Subsidiary Notes Guarantor to
enforce its Subsidiary Notes Guarantee, irrespective of whether any action is
brought against the Company or any other
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Subsidiary Notes Guarantor or whether the Company or any other Subsidiary Notes
Guarantor is joined in any such action or actions. The liability of each
Subsidiary Notes Guarantor under its Subsidiary Notes Guarantee shall be
absolute and unconditional and the liability and obligations of such Subsidiary
Notes Guarantor hereunder shall not be released, discharged, mitigated, waived,
impaired or affected in whole or in part by:
(a) any lack of validity or enforceability of this Indenture
or the Notes with respect to the Company or any Subsidiary Notes
Guarantor or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Indenture Obligations, or any
other amendment or waiver of or any consent to departure from this
Indenture, including any increase in the Indenture Obligations
resulting from the extension of additional credit to the Company or
otherwise;
(c) the failure to give notice to the Subsidiary Notes
Guarantor of the occurrence of a Default under the provisions of this
Indenture or the Notes;
(d) any taking, release or amendment or waiver of or consent
to departure from any other guarantee, for all or any of the Indenture
Obligations;
(e) any failure, omission, delay by or inability on the part
of the Trustee or the Holders to assert or exercise any right, power
or remedy conferred on the Trustee or the Holders in this Indenture or
the Notes;
(f) any change in the corporate structure, or termination,
dissolution, consolidation or merger of the Company or any Subsidiary
Notes Guarantor with or into any other Person, the voluntary or
involuntary liquidation, dissolution, sale or other disposition of all
or substantially all the assets of the Company or any Subsidiary Notes
Guarantor, the marshalling of the assets and liabilities of the
Company or any Subsidiary Notes Guarantor, the receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition with the creditors, or
readjustment of, or other similar proceedings affecting the Company or
any Subsidiary Notes Guarantor, or any of the assets of any of them;
(g) the assignment of any right, title or interest of the
Trustee or any Holder in this Indenture or the Notes to any other
Person; or
(h) any other event or circumstance (including any statute of
limitations), whether foreseen or unforeseen and whether similar or
dissimilar to any of the foregoing, that might otherwise constitute a
defense available to, or a discharge of, the Company
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or a Subsidiary Notes Guarantor, other than payment in full of the
Indenture Obligations; it being the intent of each Subsidiary Notes
Guarantor that its obligations hereunder shall not be discharged
except by payment of all amounts owing pursuant to this Indenture or
the Notes.
The Subsidiary Notes Guarantee of each Subsidiary Notes Guarantor shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Indenture Obligations is rescinded or must otherwise
be returned by any Holder or the Trustee upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such payment had not
been made. Each Subsidiary Notes Guarantor further agrees, to the fullest
extent that it may lawfully do so, that, as between such Subsidiary Notes
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Five of this Indenture for the purposes of this Subsidiary
Notes Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations guaranteed hereby, and (ii) in the event of any
declarations of acceleration of such obligations as provided in Article Five of
this Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Subsidiary Notes Guarantor for the
purpose of this Subsidiary Notes Guarantee.
SECTION 1303. WAIVERS.
(a) Each Subsidiary Notes Guarantor hereby expressly waives
(to the extent permitted by law) notice of the acceptance of its Subsidiary
Notes Guarantee and notice of the existence, renewal, extension or the
non-performance, non-payment, or non-observance on the part of the Company of
any of the terms, covenants, conditions and provisions of this Indenture or the
Notes or any other notice whatsoever to or upon the Company or such Subsidiary
Notes Guarantor with respect to the Indenture Obligations. Each Subsidiary
Notes Guarantor hereby acknowledges communication to it of the terms of this
Indenture and the Notes and all of the provisions herein contained and consents
to and approves the same. Each Subsidiary Notes Guarantor hereby expressly
waives (to the extent permitted by law) diligence, presentment and protest.
(b) Without prejudice to any of the rights or recourse which
the Trustee or the Holders may have against the Company, each Subsidiary Notes
Guarantor hereby expressly waives (to the extent permitted by law) any right to
require the Trustee or the Holders to:
(1) initiate or exhaust any rights, remedies or recourse
against the Company, any Subsidiary Notes Guarantor or any other
Person;
(2) value, realize upon, or dispose of any security of the
Company or any other Person held by the Trustee or the Holders; or
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(3) initiate or exhaust any other remedy which the Trustee or
the Holders may have in law or equity;
before requiring, becoming entitled to or demanding payment from such
Subsidiary Notes Guarantor under this Subsidiary Notes Guarantee.
SECTION 1304. SUBROGATION.
Each Subsidiary Notes Guarantor shall not exercise any rights
that it may acquire by way of subrogation under this Subsidiary Notes
Guarantee, by any payment made hereunder or otherwise, until all the Indenture
Obligations shall have been paid in full. If any amount shall be paid to any
Subsidiary Notes Guarantor on account of any such subrogation rights at any
time when all the Indenture Obligations shall not have been paid in full, such
amount shall be held in trust for the benefit of the Holders and the Trustees
and shall forthwith be paid to the Trustee, on behalf of the Holders, to be
credited and applied to the Indenture Obligations, whether matured or
unmatured.
SECTION 1305. NO WAIVER; REMEDIES.
No failure on the part of any Holder or the Trustee to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 1306. CONTINUING GUARANTY; NO RIGHT OF SET-OFF;
INDEPENDENT OBLIGATION.
(a) This Subsidiary Notes Guarantee is a continuing guarantee
of the payment and performance of all Indenture Obligations and shall remain in
full force and effect until the payment in full of all of the Indenture
Obligations and all other amounts payable under this Subsidiary Notes Guarantee
and shall apply to and secure any ultimate balance due or remaining unpaid to
the Trustee or the Holders under this Indenture or the Notes; and this
Subsidiary Notes Guarantee shall not be considered as wholly or partially
satisfied by the payment or liquidation at any time or from time to time of any
sum of money for the time being due or remaining unpaid to the Trustee or the
Holders.
(b) Each Subsidiary Notes Guarantor hereby guarantees that
the Indenture Obligations shall be paid to the Trustee without set-off or
counterclaim or other reduction whatsoever (whether for taxes, withholding or
otherwise) in lawful currency of the United States of America.
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(c) Each Subsidiary Notes Guarantor guarantees that the
Indenture Obligations shall be paid strictly in accordance with their terms
regardless of any lack of validity or enforceability of any of such terms or
the rights of the Holders with respect thereto.
(d) Each Subsidiary Notes Guarantor's liability to pay or
perform or cause the performance of the Indenture Obligations under this
Subsidiary Notes Guarantee shall arise forthwith after demand for payment or
performance by the Trustee has been given to such Subsidiary Notes Guarantor in
the manner prescribed in this Indenture.
SECTION 1307. SUBSIDIARY NOTES GUARANTORS MAY CONSOLIDATE,
ETC., ON CERTAIN TERMS.
(a) Nothing contained in this Indenture or in any of the
Notes shall prevent any consolidation or merger of a Subsidiary Notes Guarantor
with or into the Company or another Subsidiary Notes Guarantor or shall prevent
any sale or conveyance of the property of a Subsidiary Notes Guarantor as an
entirety or substantially as an entirety to the Company or another Subsidiary
Notes Guarantor, which consolidation, merger, sale or conveyance is otherwise
in accordance with the terms of this Indenture.
(b) Other than as set forth in paragraph (a) of this Section,
no Subsidiary Notes Guarantor may consolidate with or merge with or into
(whether or not such Subsidiary Notes Guarantor is the surviving Person)
another Person whether or not affiliated with such Subsidiary Notes Guarantor
unless: (i) subject to the provisions of Section 1309, the Person formed by or
surviving such consolidation or merger (if other than such Subsidiary Notes
Guarantor) assumes all of the obligations of such Subsidiary Notes Guarantor
under this Indenture and its Subsidiary Notes Guarantee, pursuant to a
supplemental indenture in form and substance satisfactory to the Trustee, and
(b) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing.
SECTION 1308. ADDITIONAL SUBSIDIARY NOTES GUARANTORS.
The Company shall cause each Person that becomes a Wholly
Owned Restricted Subsidiary after the Closing Date to become a Subsidiary Notes
Guarantor with respect to the Indenture Obligations by executing and delivering
a supplemental indenture to this Indenture providing for a Subsidiary Notes
Guarantee by such Wholly Owned Restricted Subsidiary under Article Thirteen;
provided that any such Wholly Owned Restricted Subsidiary that is organized
outside of the United States shall not be required to provide a Subsidiary
Notes Guarantee so long as such Wholly Owned Restricted Subsidiary has not
guaranteed any other Debt of the Company or any other Restricted Subsidiary.
The Company shall deliver to the Trustee, together with the supplemental
indenture referred to above, an Opinion of Counsel that such Subsidiary Notes
Guarantee is a legal, valid, binding and enforceable obligation of such
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Subsidiary Notes Guarantor, subject to customary local law exceptions and
customary exceptions for bankruptcy and equitable principles.
SECTION 1309. RELEASES.
(a) Concurrently with any consolidation or merger of a
Subsidiary Notes Guarantor with or into the Company or another Subsidiary Notes
Guarantor or any sale or conveyance of the property of a Subsidiary Notes
Guarantor as an entirety or substantially as an entirety to the Company or
another Subsidiary Notes Guarantor, in each case as permitted by Section 1307,
and upon delivery by the Company to the Trustee of an Officers' Certificate and
an Opinion of Counsel, each to the effect that (i) such consolidation, merger,
sale or conveyance was or shall be made by a Subsidiary Notes Guarantor in
accordance with Section 1307, and (ii) all conditions precedent to such release
have been satisfied, the Trustee shall promptly execute any documents
reasonably required in order to evidence the release of such Subsidiary Notes
Guarantor from its obligations under its Subsidiary Notes Guarantee. Any
Subsidiary Notes Guarantor not released from its obligations under its
Subsidiary Notes Guarantee under this Article Thirteen shall remain liable for
the full amount of the Indenture Obligations under its Subsidiary Notes
Guarantee.
(b) Concurrently with the Legal Defeasance of the Notes under
Section 1202 hereof or the Covenant Defeasance of the Notes under Section 1203
hereof, the Subsidiary Notes Guarantors shall be released from all of their
obligations under their Subsidiary Notes Guarantees.
(c) Upon (i) the sale, transfer or other disposition of all
of the Capital Stock of a Subsidiary Notes Guarantor to a Person that is not an
Affiliate of the Company, (ii) the sale, transfer or other disposition of all
or substantially all of the assets of a Subsidiary Notes Guarantor to a Person
that is not an Affiliate of the Company, or (iii) the designation of such
Subsidiary Notes Guarantor as an Unrestricted Subsidiary, in any such case in
compliance with the terms of this Indenture, then such Subsidiary Notes
Guarantor shall be deemed automatically and unconditionally released and
discharged from all of its obligations under its Subsidiary Notes Guarantee
without any further action on the part of the Trustee or any Holder of the
Notes; provided that the Net Cash Proceeds of any such sale, transfer or other
disposition are applied in accordance with Section 1012.
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ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. NOTES AND SUBSIDIARY NOTES GUARANTEES
SUBORDINATE TO SENIOR DEBT.
(a) The Company covenants and agrees, and each Holder of a
Note, by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article Fourteen, the
indebtedness represented by the Notes and the payment of the principal of (and
premium, if any) and interest on each and all of the Notes (but not amounts
owing to the Trustee by the Company pursuant to Section 607 hereof) are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Debt.
(b) Each Subsidiary Notes Guarantor covenants and agrees, and
each Holder of a Note, by his acceptance thereof, likewise covenants and
agrees, that, to the extent and in the manner hereinafter set forth in this
Article Fourteen, the indebtedness represented by the Subsidiary Notes
Guarantee of such Subsidiary Notes Guarantor is hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Subsidiary Guarantor Senior Debt of such Subsidiary Notes Guarantor.
SECTION 1402. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of any payment or distribution of assets of the
Company or any Subsidiary Notes Guarantor to creditors upon any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency or similar
proceedings of the Company or any Subsidiary Notes Guarantor (the Company or
such Subsidiary Notes Guarantor being the "Affected Obligor"), then (except (x)
in connection with the consolidation or merger of the Company or its
liquidation or dissolution following the conveyance, transfer or lease of its
properties and assets substantially as an entirety, upon the terms and
conditions described in Article Eight or (y) in connection with the
consolidation or merger of a Subsidiary Notes Guarantor, or its liquidation or
dissolution, not in violation of any provision of this Indenture) (each such
event, if any, herein sometimes referred to as a "Proceeding"), (i) if the
Affected Obligor is the Company, the holders of Senior Debt shall first be
entitled to receive payment in full, in cash or cash equivalents, of all
amounts due or to become due on or in respect of such Senior Debt before the
Holders of the Notes are entitled to receive any payment of principal of (and
premium, if any) or interest on the Notes or on account of the purchase or
redemption or other acquisition of Notes by the Company or any Subsidiary of
the Company and (ii) if the Affected Obligor is a Subsidiary Notes Guarantor,
the holders of Subsidiary Guarantor Senior Debt of such Subsidiary Notes
Guarantor shall first be entitled to receive payment in full, in cash or cash
equivalents, of principal of (or premium,
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if any) and interest on such Subsidiary Guarantor Senior Debt, before the
Holders of the Notes are entitled to receive any payment pursuant to the
Subsidiary Notes Guarantee of such Subsidiary Notes Guarantor (any payment on
or purchase, redemption or acquisition of the Notes, referred to in clause (i),
and any payment on a Subsidiary Notes Guarantee, referred to in clause (ii),
being, individually and collectively, a "Notes Payment"), and, to that end, if
the Affected Obligor is the Company, the holders of Senior Debt and, if the
Affected Obligor is a Subsidiary Notes Guarantor, the holders of Subsidiary
Guarantor Senior Debt of such Subsidiary Notes Guarantor (such Senior Debt or
Subsidiary Guarantor Senior Debt, as the case may be, being "Affected Obligor
Senior Debt" of such Affected Obligor) shall be entitled to receive, for
application to the payment thereof, any payment or distribution of any kind or
character, whether in cash, property or securities which may be payable or
deliverable in respect of the Notes in any such Proceeding.
In the event that, notwithstanding the foregoing provisions
of this Section 1402, the Trustee or the Holder of any Note shall have received
any payment or distribution of assets of an Affected Obligor of any kind or
character, whether in cash, property or securities, before all Affected Obligor
Senior Debt is paid in full, then such payment or distribution, except for
amounts subject to the claim granted to the Trustee in Section 607 hereof,
shall be held in trust for the holders of Affected Obligor Senior Debt and
shall be paid over or delivered forthwith to the trustee in bankruptcy or other
Person making payment or distribution of assets of the Affected Obligor for
application to the payment of all Affected Obligor Senior Debt remaining
unpaid, to the extent necessary to pay all Affected Obligor Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of the Affected Obligor Senior Debt.
For purposes of this Article Fourteen only, the words "any
payment or distribution of any kind or character, cash, property or securities"
shall not be deemed to include a payment or distribution of equity or
subordinated securities of the Affected Obligor provided for by a plan of
reorganization or readjustment or of any other corporation provided for by such
plan of reorganization or readjustment that, in the case of subordinated
securities, are subordinated in right of payment to all then outstanding
Affected Obligor Senior Debt to at least the same extent as the Notes or
Subsidiary Notes Guarantees, as the case may be, are so subordinated as
provided in this Article Fourteen.
SECTION 1403. NO PAYMENT WHEN CERTAIN SENIOR DEBT IN DEFAULT.
In the event that any Senior Payment Default (as defined
below) shall have occurred and be continuing, then no Notes Payment shall be
made unless and until such Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due and payable in
respect of the Specified Senior Debt or other obligations that are the subject
of such Senior Payment Default shall have been paid in full. For purposes
hereof, "Senior Payment Default" means any default in the payment of principal
of (or premium, if
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any), or interest on, Specified Senior Debt, the payment of commitment,
facility or other fees, letter of credit fees or agency fees under the Credit
Facility, or payments with respect to letter of credit reimbursement
arrangements with the Credit Facility Agent, when due, whether at the Stated
Maturity of any such payment or by declaration of acceleration, call for
redemption or otherwise.
In the event that any Senior Nonmonetary Default (as defined
below) shall have occurred and be continuing, then, upon the receipt by the
Company and the Trustee of written notice of such Senior Nonmonetary Default
from the Credit Facility Agent or from an authorized Person on behalf of any
holder of Specified Senior Debt, no Notes Payment shall be made during the
period (the "Payment Blockage Period") commencing on the date of receipt of
such written notice (the "Blockage Notice") and ending on the earliest of (i)
the 179th day after the date of such receipt of the Blockage Notice (the
"Initial Period"), (ii) the date, if any, on which the Specified Senior Debt to
which such default relates is discharged or such default is waived or otherwise
cured and (iii) the date, if any, on which such Payment Blockage Period shall
have been terminated by written notice to the Company or the Trustee from the
Credit Facility Agent or from the Person who gave the Blockage Notice. Any
number of additional Payment Blockage Periods may be commenced during the
Initial Period; provided, however, that no such additional Payment Blockage
Periods shall extend beyond the Initial Period. After the expiration of the
Initial Period, no Payment Blockage Period may be commenced until at least 181
consecutive days shall have elapsed from the last day of the Initial Period. No
Senior Nonmonetary Default that existed or was continuing on the date of
commencement of any Payment Blockage Period with respect to the Specified
Senior Debt initiating such Payment Blockage Period shall be, or be made, the
basis for the commencement of a subsequent Payment Blockage Period unless such
Senior Nonmonetary Default shall have been cured or waived for a period of not
less than 90 consecutive days. For purposes hereof, "Senior Nonmonetary
Default" means the occurrence or existence of any event, circumstance,
condition or state of facts that, by the terms of any instrument pursuant to
which any Specified Senior Debt is outstanding, permits one or more holders of
such Specified Senior Debt (or a trustee or agent on behalf of the holders
thereof) to declare such Specified Senior Debt due and payable prior to the
date on which it would otherwise become due and payable, other than a Senior
Payment Default.
In the event that, notwithstanding the foregoing, the Company
or any Subsidiary Notes Guarantor shall make any payment to the Trustee or any
Holder prohibited by the foregoing provisions of this Section 1403, then such
payment shall be held in trust for the holders of the Affected Obligor Senior
Debt and shall be paid over and delivered forthwith to the holders of the
Affected Obligor Senior Debt remaining unpaid, to the extent necessary to pay
in full all the Affected Obligor Senior Debt.
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SECTION 1404. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article Fourteen or elsewhere in
this Indenture or in any of the Notes shall, at any time except during the
pendency of any Proceeding referred to in Section 1402 or under the conditions
described in Section 1403, prevent (a) the Company or any Subsidiary Notes
Guarantor from making Notes Payments, or (b) the application by the Trustee of
any money deposited with it hereunder to Notes Payments or the retention of
such payment by the Holders.
SECTION 1405. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
DEBT.
Subject to the payment in full of all Senior Debt, the rights
of the Holders of the Notes shall be subrogated to the rights of the holders of
such Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of (and premium,
if any) and interest on the Notes shall be paid in full. Subject to the payment
in full of all Subsidiary Guarantor Senior Debt, the rights of the Holders of
the Notes shall be subrogated to the rights of the holders of such Subsidiary
Guarantor Senior Debt to receive payments and distributions of cash, property
and securities applicable to such Subsidiary Guarantor Senior Debt until the
principal of (and premium, if any) and interest on the Notes shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Debt or Subsidiary Guarantor Senior Debt of any cash,
property or securities to which the Holders of the Notes or the Trustee would
be entitled except for the provisions of this Article Fourteen, and no payments
over pursuant to the provisions of this Article Fourteen to the holders of
Senior Debt or Subsidiary Guarantor Senior Debt by Holders of the Notes or the
Trustee, shall, as among the Company, its creditors other than holders of
Senior Debt and the Subsidiary Guarantor Senior Debt and the Holders of the
Notes, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt. Neither the Holders of the Notes nor the Trustee
shall have any claim against the holders of the Senior Debt or the Credit
Facility Agent for any impairment of the subrogation rights herein granted
arising out of any release of Liens securing the Senior Debt or the Subsidiary
Guarantor Senior Debt.
SECTION 1406. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article Fourteen are and are intended
solely for the purpose of defining the relative rights of the Holders on the
one hand and the holders of Senior Debt and Subsidiary Guarantor Senior Debt on
the other hand. Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Notes is intended to or shall (a) impair, as among the
Company, its creditors other than holders of Senior Debt and the Holders of the
Notes, the obligation of the Company, which is absolute and unconditional (and
which, subject to the rights under this Article Fourteen of the holders of
Senior Debt, is intended to rank equally with all other general obligations of
the Company) to pay to the Holders of the Notes the principal of
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(and premium, if any) and interest on the Notes as and when the same shall
become due and payable in accordance with their terms; or (b) impair, as among
the Subsidiary Notes Guarantors, their creditors other than holders of
Subsidiary Guarantor Senior Debt and the Holders of the Notes, the obligation
of the Subsidiary Notes Guarantors, which is absolute and unconditional (and
which, subject to the rights under this Article Fourteen of the holders of
Subsidiary Guarantor Senior Debt, is intended to rank equally with all other
general obligations of the Subsidiary Notes Guarantors) to pay to the Holders
of the Notes the principal of (and premium, if any) and interest on the Notes
as and when the same shall become due and payable in accordance with their
terms; or (c) affect the relative rights against the Company of the Holders of
the Notes and creditors of the Company other than the holders of Senior Debt or
the relative rights against the Subsidiary Notes Guarantors of the Holders of
the Notes and creditors of the Subsidiary Notes Guarantors other than the
Holders of Subsidiary Guarantor Senior Debt; or (d) prevent the Trustee or the
Holder of any Note from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Fourteen of the holders of Senior Debt and Subsidiary
Guarantor Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder. The holders of the Senior
Debt and the Credit Facility Agent, as the case may be, shall be entitled to
enforce the provisions of this Article Fourteen against the Company, the
Subsidiary Notes Guarantors, the Holders of the Notes and the Trustee.
SECTION 1407. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Note by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article
Fourteen and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 1408. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt
or Subsidiary Guarantor Senior Debt to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or any Subsidiary Notes Guarantor or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company or any Subsidiary Notes Guarantor with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
Holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt or Subsidiary Guarantor Senior Debt, as
the case may be, may, at any time and from time to time, without the consent of
or notice to the Trustee or the Holders of the Notes, without incurring
responsibility to the Trustee or the Holders of the Notes and without impairing
or releasing the subordination provided in this Article Fourteen or the
obligations hereunder of
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the Holders of the Notes to the holders of Senior Debt or Subsidiary Guarantor
Senior Debt, as the case may be, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Debt or Subsidiary Guarantor Senior Debt, as the case
may be, or otherwise amend or supplement in any manner Senior Debt or
Subsidiary Guarantor Senior Debt, as the case may be, or any instrument
evidencing the same or any agreement under which Senior Debt or Subsidiary
Guarantor Senior Debt, as the case may be, is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt or any Subsidiary Guarantor Senior Debt, as the case may
be; (iii) release any Person liable in any manner for the collection of Senior
Debt or any Subsidiary Guarantor Senior Debt, as the case may be; and (iv)
exercise or refrain from exercising any rights against the Company or any
Subsidiary Notes Guarantor and any other Person.
SECTION 1409. NOTICE TO TRUSTEE.
The Company and each Subsidiary Notes Guarantor shall give
prompt written notice to the Trustee of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee in respect of the
Notes and of any subsequent cure or waiver thereof. Notwithstanding the
provisions of this Article Fourteen or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in respect
of the Notes, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Senior Debt or a holder of Subsidiary
Guarantor Senior Debt or from any trustee or agent therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 601, shall be entitled in all respects to assume that no such facts
exist.
Subject to the provisions of Section 601, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt or a holder of Subsidiary
Guarantor Senior Debt (or a trustee or agent therefor) to establish that such
notice has been given by a holder of Senior Debt or a holder of Subsidiary
Guarantor Senior Debt (or a trustee or agent therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Debt or a holder of Subsidiary
Guarantor Senior Debt, as the case may be, to participate in any payment or
distribution pursuant to this Article Fourteen, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Debt or Subsidiary Guarantor Senior Debt, as the case may
be, held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article Fourteen, and if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
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SECTION 1410. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATION AGENT.
Upon any payment or distribution of assets of the Company or
any Subsidiary Notes Guarantor referred to in this Article Fourteen, the
Trustee, subject to the provisions of Section 601, and the Holders of the Notes
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in a Proceeding, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt, Subsidiary Guarantor Senior Debt
and other indebtedness of the Company and the Subsidiary Notes Guarantors, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Fourteen.
SECTION 1411. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
DEBT.
Except to the extent of its obligations under the penultimate
paragraph of Section 1402 and the last paragraph of Section 1403, the Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Debt or
Subsidiary Guarantor Senior Debt and shall not be liable to any such holders if
it shall in good faith mistakenly pay over or distribute to Holders of Notes or
to the Company or to any other Person cash, property or securities to which any
holders of Senior Debt or Subsidiary Guarantor Senior Debt shall be entitled by
virtue of this Article Fourteen or otherwise. The Trustee's duties with respect
to holders of Senior Debt and Subsidiary Guarantor Senior Debt are limited to
those specifically set forth in this Indenture, and no implied covenants or
obligations shall be construed by any provision hereof.
SECTION 1412. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Fourteen with respect to any Senior
Debt or Subsidiary Guarantor Senior Debt which may at any time be held by it,
to the same extent as any other holder of Senior Debt or Subsidiary Guarantor
Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article Fourteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
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SECTION 1413. APPLICABILITY TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Fourteen shall in such case (unless the
context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article Fourteen in addition to or in
place of the Trustee; provided, however, that this Section 1413 shall not apply
to the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
SECTION 1414. DEFEASANCE OF THIS ARTICLE FOURTEEN.
The subordination of the Notes and the Subsidiary Notes
Guarantees provided by this Article Fourteen is expressly made subject to the
provisions for Legal Defeasance or Covenant Defeasance in Article Twelve hereof
and, anything herein to the contrary notwithstanding, upon the effectiveness of
any such Legal Defeasance or Covenant Defeasance, the Notes and the Subsidiary
Notes Guarantees then outstanding shall thereupon cease to be subordinated
pursuant to this Article Fourteen.
SECTION 1415. SUBORDINATION PROVISIONS CONTROLLING.
Notwithstanding anything to the contrary contained in this
Indenture, to the extent that any provision contained in Articles One (other
than Section 101) through Thirteen of this Indenture conflicts with any
provision contained in Article Fourteen (including the definitions of certain
terms used in Article Fourteen) of this Indenture, the provisions contained in
Article Fourteen of this Indenture shall govern and control.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
CITADEL BROADCASTING COMPANY,
a Nevada corporation
By /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
CITADEL LICENSE, INC.,
as Guarantor
By /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
THE BANK OF NEW YORK,
as Trustee
By /s/ Xxxxx Xxxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxxx
Title: Assistant Vice-President