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Exhibit 4.2
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CITADEL BROADCASTING COMPANY,
Issuer
CITADEL LICENSE, INC.,
Guarantor
and
THE BANK OF NEW YORK,
Debentures Trustee
--------------------
INDENTURE
Dated as of July 1, 1997
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13-1/4% Exchange Debentures due 2009
13-1/4% Series B Exchange Debentures due 2009
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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
Section 315(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.................................................. 2
Acquired Debt.............................................. 2
Act........................................................ 3
Affiliate.................................................. 3
Agent...................................................... 3
Asset Sale................................................. 3
Asset Sale Offer........................................... 3
Asset Swap................................................. 3
Authenticating Agent....................................... 4
Bankruptcy Law............................................. 4
Banks .................................................... 4
Board of Directors......................................... 4
Board Resolution........................................... 4
Business Day............................................... 4
Capital Stock.............................................. 4
Capitalized Lease Obligation............................... 4
Certificate of Designation................................. 4
Change of Control.......................................... 5
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.................................................... 6
Company Request or Company Order........................... 6
Consolidated Adjusted Net Income........................... 6
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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PAGE
Consolidated Fixed Charges................................. 7
Corporate Trust Office..................................... 8
Covenant Defeasance........................................ 8
Credit Facility............................................ 8
Credit Facility Agent...................................... 8
Custodian.................................................. 8
Debentures Trustee......................................... 8
Debt....................................................... 8
Default.................................................... 9
Defaulted Interest......................................... 9
Depositary................................................. 9
Disinterested Director..................................... 9
Disqualified Stock......................................... 9
Event of Default........................................... 10
Excess Proceeds............................................ 10
Exchange Act............................................... 10
Exchange Date.............................................. 10
Exchange Debentures........................................ 10
Exchange Debentures Exchange Offer......................... 10
Exchange Debentures Exchange Offer Registration Statement.. 10
Exchange Debentures Register and Exchange Debentures Registrar 10
Exchange Debentures Registration Rights Agreement.......... 10
Exchange Debentures Shelf Registration Statement........... 10
Exchange Indenture......................................... 10
Exchangeable Preferred Stock............................... 10
FCC........................................................ 11
Generally Accepted Accounting Principles or GAAP........... 11
guarantee.................................................. 11
Hedging Obligations........................................ 11
Holder .................................................... 11
Indenture Obligations...................................... 11
Initial Exchange Debentures................................ 11
Initial Purchasers......................................... 11
Interest Payment Date...................................... 11
Investment................................................. 12
Junior Subordinated Debt................................... 12
Legal Defeasance........................................... 12
License Subsidiary......................................... 12
Lien....................................................... 12
Net Cash Proceeds.......................................... 12
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PAGE
New Exchange Debentures.................................... 13
Notes...................................................... 13
Offered Price.............................................. 13
Officers' Certificate...................................... 13
Opinion of Counsel......................................... 13
Outstanding................................................ 13
Pari Passu Debt............................................ 14
Paying Agent............................................... 14
Permitted Debt............................................. 14
Permitted Investments...................................... 15
Person..................................................... 16
Predecessor Exchange Debenture............................. 16
Preferred Stock............................................ 16
Public Equity Offering..................................... 16
QIB........................................................ 16
Qualified Equity Interest.................................. 16
Qualified Stock............................................ 16
Redemption Date............................................ 16
Redemption Price........................................... 16
Regular Record Date........................................ 16
Responsible Officer........................................ 16
Restricted Subsidiary...................................... 17
Rule 144A.................................................. 17
Securities Act............................................. 17
Senior Debt................................................ 17
Senior Subordinated Debt................................... 17
Significant Subsidiary..................................... 18
Special Record Date........................................ 18
Specified Senior Debt...................................... 18
Stated Maturity............................................ 18
Subordinated Debt.......................................... 18
Subsidiary................................................. 19
Subsidiary Debentures Guarantee............................ 19
Subsidiary Debentures Guarantor............................ 19
Subsidiary Guarantor Senior Debt........................... 19
Subsidiary Guarantor Senior Subordinated Debt.............. 19
Subsidiary Notes Guarantee................................. 20
Trust Indenture Act or TIA................................. 20
Unrestricted Subsidiary.................................... 20
U.S. Government Obligations................................ 20
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PAGE
Vice President............................................. 21
Voting Stock............................................... 21
Voting Trust Agreement..................................... 21
Weighted Average Life...................................... 21
Wholly Owned Restricted Subsidiary......................... 21
SECTION 102. Compliance Certificates and Opinions........................ 21
SECTION 103. Form of Documents Delivered to Debentures Trustee........... 22
SECTION 104. Acts of Holders............................................. 23
SECTION 105. Notices, Etc., to Debentures Trustee, the Company and
Subsidiary Debentures Guarantors.......................... 24
SECTION 106. Notice to Holders; Waiver................................... 25
SECTION 107. Effect of Headings and Table of Contents.................... 25
SECTION 108. Successors and Assigns...................................... 25
SECTION 109. Separability Clause......................................... 25
SECTION 110. Benefits of Indenture....................................... 26
SECTION 111. Governing Law............................................... 26
SECTION 112. Legal Holidays.............................................. 26
SECTION 113. No Personal Liability of Directors, Officers, Employees,
Stockholders or Incorporators............................. 26
SECTION 114. Counterparts................................................ 27
ARTICLE TWO
EXCHANGE DEBENTURE FORMS
SECTION 201. Forms Generally............................................. 27
SECTION 202. Restrictive Legends......................................... 28
SECTION 203. [INTENTIONALLY OMITTED]..................................... 30
SECTION 204. Form of Face of Exchange Debenture.......................... 30
SECTION 205. Form of Reverse of Exchange Debenture....................... 33
SECTION 206. Form of Debentures Trustee's Certificate
of Authentication......................................... 41
ARTICLE THREE
THE EXCHANGE DEBENTURES
SECTION 301. Title and Terms............................................. 42
SECTION 302. Denominations............................................... 43
SECTION 303. Execution, Authentication, Delivery and Dating.............. 43
SECTION 304. Temporary Exchange Debentures............................... 45
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PAGE
SECTION 305. Registration, Registration of Transfer and Exchange.......... 45
SECTION 306. Book-Entry Provisions for the Global Exchange Debenture...... 47
SECTION 307. Special Transfer Provisions.................................. 48
SECTION 308. Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors.... 50
SECTION 309. [INTENTIONALLY OMITTED]...................................... 53
SECTION 310. Mutilated, Destroyed, Lost and Stolen Exchange Debentures.... 53
SECTION 311. Payment of Interest; Interest Rights Preserved............... 54
SECTION 312. Persons Deemed Owners........................................ 55
SECTION 313. Cancellation................................................. 55
SECTION 314. Computation of Interest...................................... 56
SECTION 315. CUSIP Numbers................................................ 56
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...................... 56
SECTION 402. Application of Trust Money................................... 58
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................ 58
SECTION 502. Acceleration of Maturity; Rescission and Annulment........... 60
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Debentures Trustee..................................... 61
SECTION 504. Debentures Trustee May File Proofs of Claim.................. 62
SECTION 505. Debentures Trustee May Enforce Claims Without Possession of
Exchange Debentures.................................... 63
SECTION 506. Application of Money Collected............................... 63
SECTION 507. Limitation on Suits.......................................... 64
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest................................................. 64
SECTION 509. Restoration of Rights and Remedies........................... 65
SECTION 510. Rights and Remedies Cumulative............................... 65
SECTION 511. Delay or Omission Not Waiver................................. 65
SECTION 512. Control by Holders........................................... 65
SECTION 513. Waiver of Past Defaults...................................... 66
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PAGE
SECTION 514. Waiver of Stay or Extension Laws............................. 66
SECTION 515. Undertaking for Costs........................................ 67
ARTICLE SIX
THE DEBENTURES TRUSTEE
SECTION 601. Certain Duties and Responsibilities.......................... 67
SECTION 602. Notice of Defaults........................................... 68
SECTION 603. Certain Rights of Debentures Trustee......................... 69
SECTION 604. Debentures Trustee Not Responsible for Recitals or
Issuance of Exchange Debentures.............................. 70
SECTION 605. May Hold Exchange Debentures................................. 70
SECTION 606. Money Held in Trust.......................................... 71
SECTION 607. Compensation and Reimbursement............................... 71
SECTION 608. Corporate Debentures Trustee Required; Eligibility........... 72
SECTION 609. Resignation and Removal; Appointment of Successor............ 72
SECTION 610. Acceptance of Appointment by Successor....................... 74
SECTION 611. Merger, Conversion, Consolidation or Succession to Business.. 74
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY DEBENTURES TRUSTEE
SECTION 701. Company to Furnish Debentures Trustee Names and Addresses.... 75
SECTION 702. Disclosure of Names and Addresses of Holders................. 75
SECTION 703. Reports by Debentures Trustee................................ 76
ARTICLE EIGHT
MERGER, CONSOLIDATION, OR SALE OF ASSETS
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms......... 76
SECTION 802. Successor Substituted........................................ 77
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
SECTION 901. Supplemental Indentures Without Consent of Holders........... 77
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PAGE
SECTION 902. Supplemental Indentures with Consent of Holders.............. 78
SECTION 903. Execution of Supplemental Indentures......................... 79
SECTION 904. Effect of Supplemental Indentures............................ 79
SECTION 905. Conformity with Trust Indenture Act.......................... 80
SECTION 906. Reference in Exchange Debentures to Supplemental Indentures.. 80
SECTION 907. Notice of Supplemental Indentures............................ 80
SECTION 908. Effect on Senior Debt and Senior Subordinated Debt........... 80
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest.......... 80
SECTION 1002. Maintenance of Office or Agency.............................. 81
SECTION 1003. Money for Exchange Debenture Payments to Be Held in Trust.... 81
SECTION 1004. Corporate Existence.......................................... 83
SECTION 1005. Payment of Taxes and Other Claims............................ 83
SECTION 1006. Maintenance of Properties.................................... 83
SECTION 1007. Insurance ................................................... 84
SECTION 1008. Compliance with Laws......................................... 84
SECTION 1009. Limitation on Debt........................................... 84
SECTION 1010. Limitation on Restricted Payments............................ 87
SECTION 1011. Purchase of Exchange Debentures upon a Change of Control..... 91
SECTION 1012. Limitation on Certain Asset Sales............................ 93
SECTION 1013. Limitation on Asset Swaps.................................... 95
SECTION 1014. Limitation on Transactions with Affiliates................... 96
SECTION 1015. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries............................ 97
SECTION 1016. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries...................................... 98
SECTION 1017. Limitation on Unrestricted Subsidiaries...................... 99
SECTION 1018. Limitation on Other Subordinated Debt........................ 99
SECTION 1019. Subsidiary Debentures Guarantees.............................100
SECTION 1020. Limitation on Guarantees of Debt by Restricted Subsidiaries..100
SECTION 1021. Limitation on Liens..........................................100
SECTION 1022. Commission Reports and Reports to Holders....................101
SECTION 1023. Statement as to Compliance...................................101
SECTION 1024. Delivery of Certain Information..............................102
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ARTICLE ELEVEN
REDEMPTION OF EXCHANGE DEBENTURES
PAGE
SECTION 1101. Redemption...................................................102
SECTION 1102. Applicability of Article.....................................102
SECTION 1103. Election to Redeem; Notice to Debentures Trustee.............103
SECTION 1104. Selection by Debentures Trustee of Exchange Debentures to Be
Redeemed................................................103
SECTION 1105. Notice of Redemption.........................................103
SECTION 1106. Deposit of Redemption Price..................................105
SECTION 1107. Exchange Debentures Payable on Redemption Date...............105
SECTION 1108. Exchange Debentures Redeemed in Part.........................105
ARTICLE TWELVE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Legal Defeasance or Covenant
Defeasance..............................................106
SECTION 1202. Legal Defeasance and Discharge...............................106
SECTION 1203. Covenant Defeasance..........................................107
SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance........107
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions...................108
SECTION 1206. Reinstatement................................................109
ARTICLE THIRTEEN
SUBSIDIARY DEBENTURES GUARANTEES
SECTION 1301. Subsidiary Debentures Guarantees.............................110
SECTION 1302. Guaranty Absolute............................................111
SECTION 1303. Waivers ...................................................113
SECTION 1304. Subrogation..................................................114
SECTION 1305. No Waiver; Remedies..........................................114
SECTION 1306. Continuing Guaranty; No Right of Set-Off; Independent
Obligation..............................................114
SECTION 1307. Subsidiary Debentures Guarantors May Consolidate, Etc.
on Certain Terms........................................115
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SECTION 1308. Additional Subsidiary Debentures Guarantors..................115
SECTION 1309. Releases ...................................................116
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. Exchange Debentures and Subsidiary Debentures Guarantees
Subordinate to Senior Debt and Senior Subordinated Debt.117
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc...............117
SECTION 1403. No Payment When Certain Senior Debt and Senior Subordinated
Debt in Default.........................................119
SECTION 1404. Payment Permitted If No Default..............................120
SECTION 1405. Subrogation to Rights of Holders of Senior Debt and Senior
Subordinated Debt.......................................120
SECTION 1406. Provisions Solely to Define Relative Rights..................121
SECTION 1407. Debentures Trustee to Effectuate Subordination...............122
SECTION 1408. No Waiver of Subordination Provisions........................122
SECTION 1409. Notice to Debentures Trustee.................................123
SECTION 1410. Reliance on Judicial Order or Certificate of Liquidation
Agent...................................................123
SECTION 1411. Debentures Trustee Not Fiduciary for Holders of Senior Debt
and Senior Subordinated ▇▇▇..................................124
SECTION 1412. Rights of Debentures Trustee as Holder of Senior Debt and
Senior Subordinated Debt; Preservation of Debentures
Trustee's Rights.............................................124
SECTION 1413. Applicability to Paying Agents...............................124
SECTION 1414. Defeasance of this Article Fourteen..........................125
SECTION 1415. Subordination Provisions Controlling.........................125
SIGNATURES..................................................................126
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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 ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, CITADEL LICENSE, INC., a wholly owned subsidiary of the Company,
as guarantor (the "Subsidiary Debentures Guarantor"), having its principal
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and THE BANK OF NEW YORK,
a New York banking corporation, as trustee (the "Debentures Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of (and, with respect to clause
(a) below, the issuance of) (a) its 13-1/4% Exchange Debentures due 2009 (the
"Initial Exchange Debentures"), (b) its 13-1/4% Series B Exchange Debentures
due 2009 (the "New Exchange Debentures"), of substantially the tenor and amount
hereinafter set forth and (c) any additional 13-1/4% Exchange Debentures due
2009 issued in lieu of interest payments in money, as provided for in this
Exchange Indenture and in the Exchange Debentures (together with the Initial
Exchange Debentures and New Exchange Debentures, the "Exchange Debentures") and
to provide therefor the Company has duly authorized the execution and delivery
of this Exchange Indenture.
Upon the effectiveness of the Exchange Debentures Exchange Offer
Registration Statement (as defined herein) or the Exchange Debentures Shelf
Registration Statement (as defined herein), this Exchange 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 Exchange Debentures, when
executed and duly issued by the Company and authenticated and delivered
hereunder by the Debentures Trustee or the Authenticating Agent, the valid
obligations of the Company and to make this Exchange Indenture a valid
agreement of the Company in accordance with their and its terms.
NOW, THEREFORE, THIS EXCHANGE INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Exchange
Debentures by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Exchange Debentures,
as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Exchange Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(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 Exchange 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 Exchange 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.
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"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.
"Agent" means any Paying Agent, Authenticating Agent and Exchange Debenture
Registrar under this Exchange 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 Exchange
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 Exchange
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
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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 Debentures
Trustee as an authenticating agent pursuant to the last paragraph of Section
303.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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.
"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
Debentures 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.
"Certificate of Designation" means the document setting forth the terms of
the Exchangeable Preferred Stock, as filed with the Secretary of State of
Nevada on July 2, 1997, as amended from time to time.
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"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 ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & 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 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 Exchangeable Preferred Stock is
originally issued under the Certificate of Designation.
"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
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Exchange 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 Exchange Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Exchange 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 Debentures 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 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,
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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 Debentures 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
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
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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
Debentures Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Exchange Indenture is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇, except that with respect to presentation of Exchange Debentures for
payment or for registration of transfer or exchange, such term shall mean any
office or agency of the Debentures 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.
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator
or similar official under any Bankruptcy Law.
"Debentures Trustee" means the Person named as the "Debentures Trustee" in
the first paragraph of this Exchange Indenture until a successor Debentures
Trustee shall have become such pursuant to the applicable provisions of this
Exchange Indenture, and thereafter "Debentures Trustee" shall mean such
successor Debentures Trustee.
"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
20
9
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 Exchange 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 and
any liability for federal, state or local taxes or other taxes owed by such
Person 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.
"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 Exchange Indenture, a member 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 by contract or otherwise), or upon the happening of any event,
matures (excluding any maturity as the result of an optional redemption by the
issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof, in whole or in part, prior to one year after the Stated Maturity of
the Exchange Debentures; 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 Exchange Debentures will
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 Exchange Indenture and such Capital Stock specifically
provides that the issuer will not repurchase or redeem any such Capital Stock
pursuant to such provision prior to
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the Company's repurchase of such Exchange Debentures as are required to be
repurchased pursuant to Sections 1011 and 1012 of this Exchange Indenture.
"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.
"Exchange Date" means the date fixed by the Company for the exchange of the
Exchangeable Preferred Stock into the Exchange Debentures.
"Exchange Debentures" has the meaning stated in the first recital of this
Exchange Indenture and more particularly means any Exchange Debentures
authenticated and delivered under this Exchange Indenture.
"Exchange Debentures Exchange Offer" means the offer by the Company to the
Holders of the Initial Exchange Debentures to exchange all of the Initial
Exchange Debentures for New Exchange Debentures, as provided for in the
Exchange Debentures Registration Rights Agreement.
"Exchange Debentures Exchange Offer Registration Statement" means the
Exchange Debentures Exchange Offer Registration Statement as defined in the
Exchange Debentures Registration Rights Agreement.
"Exchange Debentures Register" and "Exchange Debentures Registrar" have the
respective meanings specified in Section 305.
"Exchange Debentures Registration Rights Agreement" means the Exchange
Debentures Registration Rights Agreement, dated as of July 1, 1997, among the
Company, the Subsidiary Debentures Guarantors and the Initial Purchasers.
"Exchange Debentures Shelf Registration Statement" means the Exchange
Debentures Shelf Registration Statement as defined in the Exchange Debentures
Registration Rights Agreement.
"Exchange 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.
"Exchangeable Preferred Stock" means the 13-1/4% Series A Exchangeable
Preferred Stock, no par value, of the Company.
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"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 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 an Exchange Debenture is registered
in the Exchange Debenture Register.
"Indenture Obligations" means the obligations of the Company and any other
obligor hereunder or under the Exchange Debentures, including the Subsidiary
Debentures Guarantors, to pay principal of (and premium, if any) and interest
on the Exchange Debentures when due and payable at maturity, and all other
amounts due or to become due under or in connection with this Exchange
Indenture, the Exchange Debentures and the performance of all other obligations
to the Debentures Trustee (including all amounts due to the Debentures Trustee
under Section 607 hereof) and the Holders under this Exchange Indenture and the
Exchange Debentures, according to the terms hereof and thereof.
"Initial Exchange Debentures" has the meaning specified in the recitals to
this Exchange Indenture.
"Initial Purchasers" means Prudential Securities Incorporated, NationsBanc
Capital Markets, Inc. and BancBoston Securities Inc., as purchasers of the
Initial Exchange Debentures.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Exchange Debentures.
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"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.
"Junior Subordinated Debt" means Debt of the Company that is subordinated in
right of payment to the Subordinated Debt.
"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.
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13
"New Exchange Debentures" has the meaning stated in the first recital of
this Exchange Indenture and refers to any New Exchange Debentures containing
terms substantially identical to the Initial Exchange Debentures (except that
(i) such New Exchange Debentures 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
Exchange Debentures in accordance with the Exchange Debentures Exchange Offer,
as provided for in the Exchange Debentures Registration Rights Agreement and
this Exchange Indenture.
"Notes" means the $100,000,000 10-1/4% Senior Subordinated Notes of the
Company due 2007.
"Offered Price" has the meaning set forth in Section 1012 herein.
"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 Debentures 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
Debentures Trustee.
"Outstanding," when used with respect to Exchange Debentures, means, as of
the date of determination, all Exchange Debentures theretofore authenticated
and delivered under this Exchange Indenture, except:
(i) Exchange Debentures theretofore cancelled by the Debentures Trustee or
delivered to the Debentures Trustee for cancellation;
(ii) Exchange Debentures, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Debentures 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 Exchange Debentures;
provided that, if such Exchange Debentures are to be redeemed, notice of such
redemption has been duly given pursuant to this Exchange Indenture or
provision therefor satisfactory to the Debentures Trustee has been made;
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(iii) Exchange Debentures, 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) Exchange Debentures in exchange for or in lieu of which other Exchange
Debentures (including pursuant to Section 310) have been authenticated and
delivered pursuant to this Exchange Indenture, other than any such Exchange
Debentures in respect of which there shall have been presented to the
Debentures Trustee proof satisfactory to it that such Exchange Debentures are
held by a bona fide purchaser in whose hands the Exchange Debentures are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Exchange Debentures 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, Exchange
Debentures owned by the Company, any Subsidiary Debentures Guarantor or any
other obligor upon the Exchange Debentures or any Affiliate of the Company, any
Subsidiary Debentures 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 Exchange Debentures, Exchange
Debentures 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 Debentures Trustee shall be protected in making such calculation or
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Exchange Debentures which the Debentures Trustee
actually knows to be so owned shall be so disregarded. Exchange Debentures so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Debentures Trustee the
pledgee's right so to act with respect to such Exchange Debentures and that the
pledgee is not the Company, any Subsidiary Debentures Guarantor or any other
obligor upon the Exchange Debentures or any Affiliate of the Company, any
Subsidiary Debentures Guarantor or such other obligor.
"Pari Passu Debt" means Debt of the Company that ranks pari passu in right
of payment with the Exchange Debentures.
"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 Exchange Debentures on behalf of the Company.
"Permitted Debt" has the meaning set forth in Section 1009.
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"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 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 ▇▇▇▇▇'▇
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 or would be a Subsidiary Debentures
Guarantor under this Exchange Indenture 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 Debentures Guarantor.
(c) Investments by the Company or any of its Restricted Subsidiaries in a
Subsidiary Debentures 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.
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"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 Exchange Debenture" of any particular Exchange Debenture means
every previous Exchange Debenture evidencing all or a portion of the same debt
as that evidenced by such particular Exchange Debenture; and, for the purposes
of this definition, any Exchange Debenture authenticated and delivered under
Section 310 in exchange for a mutilated, lost, destroyed or stolen Exchange
Debenture.
"Preferred Stock" of any Person means any Capital Stock of such Person that
has preferential rights to any other Capital Stock of such Person with respect
to dividends or redemptions or upon liquidation.
"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 Exchange Debenture to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Exchange Indenture.
"Redemption Price," when used with respect to any Exchange Debenture to be
redeemed, means the price at which it is to be redeemed pursuant to this
Exchange 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 an Interest Payment Date.
"Responsible Officer," when used with respect to the Debentures Trustee,
means the chairman or any vice chairman of the board of directors, the chairman
or any vice chairman
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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 Debentures 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.
"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, 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 Exchange
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 Exchange Indenture.
"Senior Subordinated 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
(including the Notes), whether outstanding on the Closing Date or thereafter
incurred, for which, in the case of any particular Debt, the instrument
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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 Senior Debt or other general unsecured obligations of the Company, unless
such instrument expressly provides that such Debt will be subordinate in right
of payment to the Notes or any Debt that is pari passu in right of payment with
the Notes. Notwithstanding the foregoing, "Senior Subordinated Debt" shall not
include (a) Debt that is represented by 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 Exchange 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 Debentures Trustee pursuant to Section 311.
"Specified Senior Debt" means (i) all Senior Debt under the Credit Facility
and Senior Subordinated Debt under the Notes 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 Exchange Debenture or
any installment of interest thereon, the date specified in such Exchange
Debenture as the fixed date on which the principal of such Exchange Debenture
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 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 (including the
Exchange Debentures), whether outstanding on the Closing Date or thereafter
incurred, for which, 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 will be subordinate in right of payment to
any Senior Debt or other general unsecured obligations of the Company, and to
any Senior Subordinated Debt, unless such instrument
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expressly provides that such Debt will be subordinate in right of payment to
the Exchange Debentures or any Debt that is pari passu in right of payment with
the Exchange Debentures. Notwithstanding the foregoing, "Subordinated Debt"
will not include (a) Debt that is represented by 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 Exchange Indenture.
"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 Debentures Guarantee" means a guarantee of the Exchange
Debentures by a Restricted Subsidiary in accordance with the provisions of this
Exchange Indenture.
"Subsidiary Debentures Guarantor" means the License Subsidiary and each
other Restricted Subsidiary that issues a Subsidiary Debentures Guarantee as
described in Article Thirteen herein.
"Subsidiary Guarantor Senior Debt" means, as to any Subsidiary Debentures
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 Debentures Guarantor
(other than the Subsidiary Debentures Guarantee made by such Subsidiary
Debentures 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 Debentures 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 Debentures 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 Debentures Guarantor in violation
of this Exchange 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 Debentures Guarantor is permitted to incur such Debt under this
Exchange Indenture.
"Subsidiary Guarantor Senior Subordinated Debt" means, as to any Subsidiary
Debentures Guarantor, the principal of and premium, if any, and interest on
(including interest
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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 Debentures Guarantor (other than
the Subsidiary Debentures Guarantee made by such Subsidiary Debentures
Guarantor), whether outstanding on the Closing Date or thereafter incurred, for
which, 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 Senior
Debt or other general unsecured obligations of the Company, unless such
instrument expressly provides that such Debt will be subordinate in right of
payment to the Notes or any Debt that is pari passu in right of payment with
the Notes. Notwithstanding the foregoing, "Subsidiary Guarantor Senior
Subordinated Debt" shall not include (a) Debt that is Disqualified Stock, (b)
Debt consisting of trade payables, (c) Debt of such Subsidiary Debentures
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
Debentures Guarantor in violation of this Exchange Indenture.
"Subsidiary Notes Guarantee" means a guarantee of the Notes by a Restricted
Subsidiary in accordance with the provisions of the Indenture, dated July 1,
1997, governing the Notes.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force on the date as of which this Exchange Indenture was executed, except as
provided in Section 905.
"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.
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"Vice President," when used with respect to the Company or the Debentures
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"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
any Person (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., ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, as the
initial Trustee thereunder and J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, 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.
"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 Debentures Trustee to
take any action under any provision of this Exchange Indenture, the Company and
any Subsidiary Debentures Guarantor and any other obligor on the Exchange
Debentures (if applicable) shall furnish to the Debentures Trustee an Officers'
Certificate in form and substance reasonably acceptable to the Debentures
Trustee stating that all conditions precedent, if any, provided for in this
Exchange 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 Exchange Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
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Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Exchange 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 Debentures 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 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
Debentures Guarantor or other obligor on the Exchange Debentures 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
Debentures Guarantor or other obligor on the Exchange Debentures stating that
the information with respect to such factual matters is in the possession of
the Company, any Subsidiary Debentures Guarantor or other obligor on the
Exchange Debentures 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.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Exchange 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 Exchange 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 Debentures 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 Exchange Indenture and conclusive in favor of the
Debentures 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 Debentures Trustee deems sufficient.
(c) The principal amount and serial numbers of Exchange Debentures held by
any Person, and the date of holding the same, shall be proved by the Exchange
Debenture Register.
(d) If the Company or any Subsidiary Debentures Guarantor shall solicit
from the Holders of Exchange Debentures any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company or any such
Subsidiary Debentures 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 Debentures 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,
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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
Exchange Debentures have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Exchange Debentures 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 Exchange 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 Exchange Debenture shall bind every future
Holder of the same Exchange Debenture and the Holder of every Exchange
Debenture 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 Debentures
Trustee, any Paying Agent or the Company or any Subsidiary Debentures Guarantor
in reliance thereon, whether or not notation of such action is made upon such
Exchange Debenture.
SECTION 105. Notices, Etc., to Debentures Trustee, the Company and
Subsidiary Debentures Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Exchange
Indenture to be made upon, given or furnished to, or filed with:
(1) the Debentures Trustee by any Holder or by the Company or any
Subsidiary Debentures Guarantor or any other obligor on the Exchange
Debentures shall be sufficient for every purpose hereunder if made, given,
furnished or delivered in writing and mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to or with the Debentures Trustee
at its Corporate Trust Office, Attention: Corporate Trust Administration, or
(2) the Company or any Subsidiary Debentures Guarantor by the Debentures
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 Debentures
Guarantor addressed to it at the address of its principal office specified in
the first paragraph of this Exchange Indenture, or at any other address
previously furnished in writing to the Debentures Trustee by the Company or
such Subsidiary Debentures Guarantor.
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SECTION 106. Notice to Holders; Waiver.
Where this Exchange Indenture provides for notice of any event to Holders by
the Company or the Debentures 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 Exchange Debenture 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 Exchange 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 Debentures 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 Exchange Indenture, then any manner of giving
such notice as shall be satisfactory to the Debentures 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.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Exchange Indenture by the Company and
any Subsidiary Debentures 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 Exchange Indenture or in the Exchange
Debentures 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.
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SECTION 110. Benefits of Indenture.
Nothing in this Exchange Indenture or in the Exchange Debentures, express or
implied, shall give to any Person (other than the parties hereto, any Agent and
their successors hereunder, any Paying Agent, the Holders and the holders of
Senior Debt and Senior Subordinated Debt) any benefit or any legal or equitable
right, remedy or claim under this Exchange Indenture.
SECTION 111. Governing Law.
THIS EXCHANGE INDENTURE, THE EXCHANGE DEBENTURES AND THE SUBSIDIARY
DEBENTURES GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. UPON THE EFFECTIVENESS OF THE EXCHANGE
DEBENTURES EXCHANGE OFFER REGISTRATION STATEMENT OR THE EXCHANGE DEBENTURES
SHELF REGISTRATION STATEMENT, THIS EXCHANGE 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 Exchange Debenture shall not be a
Business Day, then (notwithstanding any other provision of this Exchange
Indenture or of the Exchange Debentures) 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 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 Debentures Guarantor shall have any liability for
any obligations of the Company or such Subsidiary Debentures Guarantor under
the Exchange Debentures, this Exchange Indenture or any Subsidiary Debentures
Guarantee or for any claim based on, in respect of, or by reason of, such
obligations or their creations. Each Holder by accepting an
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Exchange Debenture waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the Exchange
Debentures.
SECTION 114. Counterparts.
This Exchange 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
EXCHANGE DEBENTURE FORMS
SECTION 201. Forms Generally.
The Exchange Debentures and the Debentures 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 Exchange 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 Exchange Debentures, as evidenced by their execution of
the Exchange Debentures. Any portion of the text of any Exchange Debenture may
be set forth on the reverse thereof, with an appropriate reference thereto on
the face of the Exchange Debenture. Each Exchange Debenture shall be dated the
date of its authentication.
The definitive Exchange Debentures 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 Exchange
Debentures, as evidenced by their execution of such Exchange Debentures.
Initial Exchange Debentures 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 Exchange Debenture
substantially in the form set forth in Sections 204 and 205 (the "Global
Exchange Debenture") deposited with the Debentures Trustee, as custodian for
the Depositary, duly executed by the Company and authenticated by the
Debentures Trustee as hereinafter provided. The aggregate principal amount of
the Global Exchange Debenture may from time to time be increased or decreased
by adjustments made on the records of the Debentures Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
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Initial Exchange Debentures 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 Exchange Debentures in registered form in substantially
the form set forth in Sections 204 and 205 (the "Certificated Exchange
Debentures").
SECTION 202. Restrictive Legends.
Unless and until (i) an Initial Exchange Debenture is sold under an
Exchange Debentures Shelf Registration Statement or (ii) an Initial Exchange
Debenture is exchanged for a New Exchange Debenture in connection with an
effective Exchange Debentures Exchange Offer Registration Statement, in each
case pursuant to the Exchange Debentures Registration Rights Agreement, each
such Global Exchange Debenture and Certificated Exchange Debenture shall bear
the following legend (the "Private Placement Legend") on the face thereof:
For each Global Exchange Debenture:
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 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"
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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 DEBENTURES 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 Exchange Debenture:
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 Exchange Debenture, whether or not an Initial Exchange
Debenture, 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
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
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30
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].
SECTION 204. Form of Face of Exchange Debenture.
CITADEL BROADCASTING COMPANY
13-1/4% [Series B]* Exchange Debenture due 2009
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, 2009, at the office or agency of the
Company referred to below, and to pay interest thereon semi-annually, on July 1
and January 1 in each year, commencing on the first such date after the
Exchange Date, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, at the rate of 13-1/4% 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
Exchange Debentures from the date on which such overdue interest becomes
payable to the date payment of such interest has been made or duly provided
for. On or prior to July 1, 2002, interest is payable in additional Exchange
Debentures having an aggregate principal amount equal to the amount of such
interest, or, at the option of the Company, in cash. Thereafter, all interest
will be payable only in cash. Interest on the Exchange Debentures will accrue
from the date of issuance thereof. 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 Exchange Debenture (or
one or more Predecessor Exchange Debentures) is registered
__________________________________
* Include only for New Exchange Debentures.
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at the close of business on the Regular Record Date for such interest, which
shall be the 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
Exchange Debentures, may be paid to the Person in whose name this Exchange
Debenture (or one or more Predecessor Exchange Debentures) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Debentures Trustee, notice whereof shall be given
to Holders of Exchange Debentures 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
Exchange Debentures 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 Exchange Debenture is entitled to the benefits of the
Exchange Debentures Registration Rights Agreement, dated as of July 1, 1997
(the "Exchange Debentures Registration Rights Agreement"), between the Company,
the Subsidiary Debentures Guarantors and the Initial Purchasers named therein.
In the event that either (a) the Exchange Debentures 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 Exchange Debentures Exchange
Offer is not consummated or an Exchange Debentures Shelf Registration Statement
is not declared effective on or prior to the 210th calendar day following the
Closing Date, the interest rate borne by the Exchange Debentures 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
Exchange Debentures be increased by more than 1.5%. Upon the filing of the
Exchange Debentures Exchange Offer Registration Statement, the consummation of
the Exchange Debentures Exchange Offer or the effectiveness of an Exchange
Debentures Shelf Registration Statement, as the case may be, the interest rate
borne by the Exchange Debentures 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 Exchange Debenture; 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 Exchange Debentures Shelf
Registration Statement is unusable pending the announcement of a material
corporate transaction or otherwise pursuant to Section 3(k) of the Exchange
Debentures 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
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issued or required to be issued exceeds 30 days in the aggregate, then the
interest rate borne by the Exchange Debentures shall be increased by
one-quarter of one percent per annum following the date that such Exchange
Debentures 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 one percent. Upon the
Company declaring that the Exchange Debentures Shelf Registration Statement is
usable after the interest rate has been increased pursuant to the preceding
sentence, the interest rate borne by the Exchange Debentures 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 Exchange Debentures 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 Exchange
Debentures shall be payable, and the Exchange Debentures 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
Debentures Trustee located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇); provided, however, that, at the option of the Company, interest may be
paid by check (or, if an Exchange Debenture has been issued as payment of
interest in lieu of money, by such Exchange Debenture) mailed to the address of
the Person entitled thereto as such address appears in the Exchange Debentures
Register.
Reference is hereby made to the further provisions of this Exchange
Debenture 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 Debentures Trustee or the Authenticating Agent referred to on the reverse
hereof by manual signature, this Exchange Debenture shall not be entitled to
any benefit under the Indenture, or be valid or obligatory for any purpose.
__________________________________
* Include only for the Initial Exchange Debentures.
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33
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 Exchange Debenture.
This Exchange Debenture is one of a duly authorized issue of
securities of the Company designated as its 13-1/4% [Series B]* Exchange
Debentures due 2009 (the "Exchange Debentures"), limited (except as otherwise
provided in the Indenture referred to below) in aggregate principal amount to
$400,000,000, 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 Debentures Guarantor"), and The Bank of New York, as trustee (the
"Debentures 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 Debentures Guarantor, the Debentures Trustee and the Holders of the
Exchange Debentures, and of the terms upon which the Exchange Debentures are,
and are to be, authenticated and delivered.
This Exchange Debenture is subordinated to the prior payment
in full of all Senior Debt and Senior Subordinated Debt in the manner and to
the extent set forth in Article Fourteen of the Indenture.
On or before each payment date, the Company shall deliver or
cause to be delivered to the Debentures Trustee or the Paying Agent an amount
in dollars sufficient to pay the amount due on such payment date, or, if
Exchange Debentures have been issued as payment of interest in lieu of money,
Exchange Debentures sufficient to pay the amount due on such payment date.
__________________________________
* Include only for the New Exchange Debentures.
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The Exchange Debentures 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 . . . . . . . . . . . . . . . . . . . . . . . 107.729%
2003 . . . . . . . . . . . . . . . . . . . . . . . 106.625%
2004 . . . . . . . . . . . . . . . . . . . . . . . 105.521%
2005 . . . . . . . . . . . . . . . . . . . . . . . 104.417%
2006 . . . . . . . . . . . . . . . . . . . . . . . 103.313%
2007 . . . . . . . . . . . . . . . . . . . . . . . 102.208%
2008 . . . . . . . . . . . . . . . . . . . . . . . 101.104%
In addition, at any time and from time to time prior to July
1, 2000, the Company may at its option redeem Exchange Debentures having an
aggregate principal amount of up to 35% of the aggregate principal amount of
Exchange Debentures issued upon exchange of the Exchangeable Preferred Stock or
in payment of interest on the Exchange Debentures, at a redemption price equal
to 113.25% 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 Exchange
Debentures remains outstanding. Any such redemption must be made within 90
days of the related Public Equity Offering.
If less than all the Exchange Debentures are to be redeemed,
the particular Exchange Debentures to be redeemed shall be selected not more
than 60 days prior to the redemption date by the Debentures Trustee by such
method as the Debentures Trustee deems fair and appropriate.
In the event of redemption or repurchase of this Exchange
Debenture in part only, a new Exchange Debenture or Exchange Debentures 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 Exchange Debentures at a purchase price in cash equal to 101%
of the aggregate principal amount thereof,
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35
plus accrued and unpaid interest thereon, if any, to the date of purchase, in
accordance with the Indenture. Holders of Exchange Debentures 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 or Senior Subordinated
Debt of the Company or a Subsidiary Debentures 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 broadcasting
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 Exchange Debentures, 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 Exchange Debentures 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 Exchange
Debentures, 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 Exchange Debentures, or one or more Predecessor
Exchange Debentures, 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. Exchange Debentures (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 Exchange Debentures 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 Exchange Debenture 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 Exchange Debenture.
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 Debentures Guarantors and the
rights of the Holders under the Indenture and the Exchange Debentures and the
Subsidiary Debentures Guarantees, if any, at any time by the Company, the
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36
Subsidiary Debentures Guarantors and the Debentures Trustee with the consent of
the Holders of a specified percentage in aggregate principal amount of the
Exchange Debentures 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 Debentures Guarantor and the
Debentures Trustee together may amend or supplement the Indenture, any
Subsidiary Debentures Guarantee or this Exchange Debenture (i) to evidence the
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 Exchange
Debentures; 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 Exchange Debentures in addition to or in place of the
certificated Exchange Debentures; or (v) to evidence and provide for the
acceptance of appointment under the Indenture by a successor Debentures
Trustee; or (vi) to secure the Exchange Debentures; 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 Exchange
Debentures at the time Outstanding, on behalf of the Holders of all the
Exchange Debentures, to waive any past defaults by the Company with certain
provisions of the Indenture, the Exchange Debentures and the Subsidiary
Debentures Guarantees, if any, and certain past Defaults under the Indenture
and the Exchange Debentures and the Subsidiary Debentures Guarantees, if any,
and their consequences. Any such consent or waiver by or on behalf of the
Holder of this Exchange Debenture shall be conclusive and binding upon such
Holder and upon all future Holders of this Exchange Debenture and of any
Exchange Debenture 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 Exchange Debenture.
No reference herein to the Indenture and no provision of this
Exchange Debenture or of the Indenture shall alter or impair the obligation of
the Company or the Subsidiary Debentures Guarantors or any other obligor on the
Exchange Debentures (in the event any Subsidiary Debentures Guarantor or other
obligor is obligated to make payments in respect of the Exchange Debentures),
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Exchange Debenture at the times, place, and rate, and
in the coin or currency, herein prescribed, subject to the subordination
provisions of the Indenture.
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As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Exchange Debenture is
registerable on the Exchange Debenture Register of the Company, upon surrender
of this Exchange Debenture 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 Exchange Debenture Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Exchange Debentures, of authorized denominations and for the
same aggregate principal amount, shall be issued to the designated transferee
or transferees.
The Exchange Debentures are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, the Exchange Debentures are exchangeable for a like aggregate principal
amount of Exchange Debentures 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 Exchange Debentures, 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 Exchange Debentures are entitled to the benefit of a
Subsidiary Debentures Guarantee by each Subsidiary Debentures Guarantor to the
extent provided in each such Subsidiary Debentures Guarantee.
Prior to the time of due presentment of this Exchange
Debenture for registration of transfer, the Company, the Debentures Trustee and
any agent of the Company or the Debentures Trustee may treat the Person in
whose name this Exchange Debenture is registered as the owner hereof for all
purposes, whether or not this Exchange Debenture be overdue, and neither the
Company, the Debentures Trustee nor any agent shall be affected by notice to
the contrary.
THIS EXCHANGE DEBENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Interest on this Exchange Debenture shall be computed on the
basis of a 360-day year of twelve 30-day months.
All terms used in this Exchange Debenture which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
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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 Exchange Debenture and all rights thereunder, hereby irrevocably
constituting and appointing
________________________________________________________________________________
attorney to transfer said Exchange Debenture 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 Exchange
Debenture)
Signature Guarantee:_____________________________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Exchange Debentures 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 Exchange Debentures Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Exchange Act.
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39
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATED EXCHANGE DEBENTURES]
In connection with any transfer of this Exchange Debenture
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 Exchange Debenture 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 Exchange Debenture 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
Exchange Debenture and the Indenture.
If none of the foregoing boxes is checked, the Debentures Trustee or other
Exchange Debenture Registrar shall not be obligated to register this Exchange
Debenture 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 Exchange Debentures 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 Exchange Debentures 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.
The undersigned represents and warrants that it is purchasing
this Exchange Debenture for its own account or an account with respect to which
it exercises sole investment
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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 Exchange Debenture purchased by the
Company pursuant to Section 1011 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Exchange Debenture
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 Exchange
Debenture)
Signature Guarantee: _____________________________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Exchange Debentures 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 Exchange Debentures Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Exchange Act.
SECTION 206. Form of Debentures Trustee's Certificate of
Authentication.
The Debentures Trustee's certificate of authentication shall be
in substantially the following form:
DEBENTURES TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Exchange Debentures referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as
Debentures Trustee
By___________________________
Authorized Signatory
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ARTICLE THREE
THE EXCHANGE DEBENTURES
SECTION 301. Title and Terms.
The aggregate principal amount of Exchange Debentures which
may be authenticated and delivered under this Exchange Indenture is limited to
$400,000,000, except for Exchange Debentures authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Exchange
Debentures pursuant to Section 303, 304, 305, 306, 307, 310, 906, 1011, 1012 or
1108 or pursuant to an Exchange Debentures Exchange Offer.
The Initial Exchange Debentures shall be known and designated
as the "13-1/4% Exchange Debentures due 2009" and the New Exchange Debentures
shall be known and designated as the "13-1/4% Series B Exchange Debentures due
2009," in each case, of the Company. The Stated Maturity of the Exchange
Debentures shall be July 1, 2009, and they shall bear interest at the rate of
13-1/4% per annum from the Exchange Date, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, payable
semiannually on July 1 and January 1 in each year, commencing on the first such
date after the Exchange Date until the principal thereof is paid in full and to
the Person in whose name the Exchange Debenture (or any predecessor Exchange
Debenture) 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.
On or prior to July 1, 2002, interest is payable in additional Exchange
Debentures having an aggregate principal amount equal to the amount of such
interest, or, at the option of the Company, in cash. Thereafter, all interest
will be payable only in cash. Interest on the Exchange Debentures will accrue
from the date of issuance thereof.
The principal of and premium, if any, and interest on the
Exchange Debentures shall be payable, and the Exchange Debentures 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 Debentures Trustee located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇); provided, however, that, at the option of the Company,
interest may be paid by check (or, if Exchange Debentures have been issued as
payment of interest in lieu of money, by such Exchange Debentures) mailed to
the address of the Person entitled thereto as such address appears in the
Exchange Debentures Register.
Holders shall have the right to require the Company to
purchase their Exchange Debentures, in whole or in part, in the event of a
Change of Control pursuant to Section 1011.
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The Exchange Debentures shall be subject to repurchase by the
Company pursuant to an Asset Sale Offer as provided in Section 1012.
The Exchange Debentures shall be redeemable as provided in
Article Eleven and in the Exchange Debentures.
SECTION 302. Denominations.
The Exchange Debentures shall be issuable only in registered
form without coupons and only in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Exchange Debentures 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 Exchange Debentures
may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the Exchange
Debentures.
Exchange Debentures 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
Exchange Debentures or did not hold such offices at the date of such Exchange
Debentures.
At any time and from time to time after the execution and
delivery of this Exchange Indenture, the Company may deliver (i) Initial
Exchange Debentures and (ii) any additional Exchange Debentures issued in lieu
of interest payments in money as provided in this Exchange Indenture and in the
Exchange Debentures, in each case executed by the Company to the Debentures
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Exchange Debentures, directing the
Debentures Trustee to authenticate the Exchange Debentures and certifying that
all conditions precedent to the issuance of Exchange Debentures contained
herein have been fully complied with, and the Debentures Trustee in accordance
with such Company Order shall authenticate and deliver such Initial Exchange
Debentures and Exchange Debentures issued in lieu of interest payments in
money, as the case may be. On Company Order, the Debentures Trustee shall
authenticate for original issue New Exchange Debentures in an aggregate
principal amount not to exceed $400,000,000; provided that New Exchange
Debentures shall be issuable only upon the valid surrender for cancellation of
Initial Exchange Debentures of a like aggregate principal amount in accordance
with an Exchange Debentures Exchange Offer pursuant to the Exchange Debentures
Registration Rights Agreement. In each case, the Debentures Trustee shall be
entitled to receive an Officers' Certificate and an Opinion of Counsel of the
Company that it may reasonably request in
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connection with such authentication of Exchange Debentures. Such order shall
specify the amount of Exchange Debentures to be authenticated and the date on
which the original issue of Initial Exchange Debentures or New Exchange
Debentures is to be authenticated.
Each Exchange Debenture shall be dated the date of its
authentication.
No Exchange Debenture shall be entitled to any benefit under
this Exchange Indenture or be valid or obligatory for any purpose unless there
appears on such Exchange Debenture a certificate of authentication
substantially in the form provided for herein duly executed by the Debentures
Trustee by manual signature of an authorized signatory, and such certificate
upon any Exchange Debenture shall be conclusive evidence, and the only
evidence, that such Exchange Debenture has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Exchange Indenture.
In case the Company or any Subsidiary Debentures 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 Debentures 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 Debentures Trustee pursuant to Article Eight, any
of the Exchange Debentures 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 Exchange Debentures 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 Exchange Debentures surrendered for such
exchange and of like principal amount; and the Debentures Trustee, upon Company
Request of the successor Person, shall authenticate and deliver Exchange
Debentures as specified in such request for the purpose of such exchange. If
Exchange Debentures 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 Exchange Debentures,
such successor Person, at the option of the Holders but without expense to
them, shall provide for the exchange of all Exchange Debentures at the time
Outstanding for Exchange Debentures authenticated and delivered in such new
name.
The Debentures Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Exchange Debentures on behalf of the
Debentures Trustee. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Exchange Debentures whenever the
Debentures Trustee may do so. Each reference in this Exchange Indenture to
authentication by the Debentures Trustee includes authentication by such agent.
An authenticating agent has the same rights as any Exchange Debenture Registrar
or Paying Agent to deal with the Company and its Affiliates.
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The Debentures Trustee shall have the right to decline to authenticate
and deliver any Exchange Debentures under this Section if the Debentures
Trustee, being advised by counsel, reasonably determines that such action may
not lawfully be taken.
SECTION 304. Temporary Exchange Debentures.
Pending the preparation of definitive Exchange Debentures, the
Company may execute, and upon Company Order the Debentures Trustee shall
authenticate and deliver, temporary Exchange Debentures which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Exchange
Debentures in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Exchange Debentures may determine, as conclusively evidenced by
their execution of such Exchange Debentures.
If temporary Exchange Debentures are issued, the Company shall
cause definitive Exchange Debentures to be prepared without unreasonable delay.
After the preparation of definitive Exchange Debentures, the temporary Exchange
Debentures shall be exchangeable for definitive Exchange Debentures upon
surrender of the temporary Exchange Debentures 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
Exchange Debentures, the Company shall execute and the Debentures Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Exchange Debentures of authorized denominations. Until so
exchanged, the temporary Exchange Debentures shall in all respects be entitled
to the same benefits under this Exchange Indenture as definitive Exchange
Debentures.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Debentures 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 "Exchange Debenture Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Exchange Debentures and of transfers of
Exchange Debentures. The Exchange Debenture 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 Exchange Debenture Register
shall be open to inspection by the Debentures Trustee. The Debentures Trustee
is hereby initially appointed as security registrar (the Debentures Trustee in
such capacity, together with any successor of the Debentures Trustee in such
capacity, the "Exchange Debenture Registrar") for the purpose of registering
Exchange Debentures and transfers of Exchange Debentures as herein provided.
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Upon surrender for registration of transfer of any Exchange
Debenture at the office or agency of the Company designated pursuant to Section
1002, the Company shall execute, and the Debentures Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Exchange Debentures of any authorized denomination or denominations of
a like aggregate principal amount.
Furthermore, any Holder of the Global Exchange Debenture
shall, by acceptance of such Global Exchange Debenture, agree that transfers of
beneficial interest in such Global Exchange Debenture may be effected only
through a book-entry system maintained by the Holder of such Global Exchange
Debenture (or its agent), and that ownership of a beneficial interest in the
Exchange Debenture shall be required to be reflected in a book entry.
At the option of the Holder, Exchange Debentures may be
exchanged for other Exchange Debentures of any authorized denomination and of a
like aggregate principal amount, upon surrender of the Exchange Debentures to
be exchanged at such office or agency. Whenever any Exchange Debentures are so
surrendered for exchange (including an exchange of Initial Exchange Debentures
for New Exchange Debentures), the Company shall execute, and the Debentures
Trustee shall authenticate and deliver, the Exchange Debentures which the
Holder making the exchange is entitled to receive; provided that no exchange of
Initial Exchange Debentures for New Exchange Debentures shall occur until an
Exchange Debentures Exchange Offer Registration Statement shall have been
declared effective by the Commission, the Debentures Trustee shall have
received an Officers' Certificate confirming that the Exchange Debentures
Exchange Offer Registration Statement has been declared effective by the
Commission and the Initial Exchange Debentures to be exchanged for the New
Exchange Debentures shall be cancelled by the Debentures Trustee.
All Exchange Debentures issued upon any registration of
transfer or exchange of Exchange Debentures shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same benefits under
this Exchange Indenture, as the Exchange Debentures surrendered upon such
registration of transfer or exchange.
Every Exchange Debenture presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Exchange Debenture Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer, in form satisfactory to the Company and the
Exchange Debenture 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 Exchange Debentures, 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 Exchange Debentures, other than exchanges pursuant to Section 304,
906, 1011, 1012 or 1108, not involving any transfer.
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SECTION 306. Book-Entry Provisions for the Global Exchange
Debenture.
(a) The Global Exchange Debenture initially shall (i) be
registered in the name of Cede & Co. as nominee for the Depositary (the "Global
Exchange Debenture Holder"), (ii) be delivered to the Debentures 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 Exchange Indenture with respect to
any Exchange Debentures held on their behalf by the Depositary, or the
Debentures Trustee as its custodian, or under the Global Exchange Debenture,
and the Depositary may be treated by the Company, the Debentures Trustee and
any agent of the Company or the Debentures Trustee as the absolute owner of
such Global Exchange Debenture for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Debentures Trustee
or any agent of the Company or the Debentures 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
Exchange Debenture.
(b) Transfers of the Global Exchange Debenture shall be
limited to transfers of such Global Exchange Debenture in whole, but not in
part, to the Depositary, its successors or their respective nominees.
Interests of beneficial owners in the Global Exchange Debenture may be
transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 307. Beneficial owners may obtain Certificated
Exchange Debentures in exchange for their beneficial interests in the Global
Exchange Debenture upon request in accordance with the Depositary's and the
Exchange Debenture Registrar's procedures. In addition, Certificated Exchange
Debentures shall be transferred to all beneficial owners in exchange for their
beneficial interests in the Global Exchange Debenture if (i) the Company
notifies the Debentures Trustee in writing that the Depositary is unwilling or
unable to act as a depositary for the Global Exchange Debenture and the Company
is unable to locate a qualified successor within 90 days or (ii) the Company,
at its option, notifies the Debentures Trustee in writing that it elects to
change the issuance of Exchange Debentures into the form of Certificated
Securities under this Exchange Indenture.
(c) In connection with any transfer of a portion of the
beneficial interest in the Global Exchange Debenture pursuant to subsection (b)
of this Section to beneficial owners, the Exchange Debenture Registrar shall
reflect on its books and records the date and a decrease in the principal
amount of the Global Exchange Debenture in an amount equal to the principal
amount of the beneficial interest in the Global Exchange Debenture to be
transferred, and the Company shall execute, and the Debentures Trustee shall
authenticate and deliver, one or more Certificated Exchange Debentures of like
tenor and amount to each Person that the Global
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Exchange Debenture Holder and the Depositary identify as being the beneficial
owner of the related Exchange Debentures.
(d) In connection with the transfer of the entire Global
Exchange Debenture to beneficial owners pursuant to subsection (b) of this
Section, the Global Exchange Debenture shall be deemed to be surrendered to the
Debentures Trustee for cancellation, and the Company shall execute, and the
Debentures Trustee shall authenticate and deliver, to each beneficial owner
identified by the Global Exchange Debenture Holder and the Depositary in
exchange for its beneficial interest in the Global Exchange Debenture, an equal
aggregate principal amount of Certificated Exchange Debentures of authorized
denominations.
(e) Any Certificated Exchange Debentures delivered in
exchange for an interest in the Global Exchange Debenture 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 Exchange
Debenture set forth in Section 202.
(f) The registered holder of the Global Exchange
Debenture 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 Exchange Indenture or the
Exchange Debentures.
SECTION 307. Special Transfer Provisions.
Unless and until (i) an Initial Exchange Debenture is sold
under an effective Exchange Debentures Shelf Registration Statement, or (ii) an
Initial Exchange Debenture is exchanged for a New Exchange Debenture in
connection with an effective Exchange Debentures Exchange Offer Registration
Statement, in each case pursuant to the Exchange Debentures 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 Exchange Debenture 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:
(i) The Exchange Debenture Registrar shall register the
transfer of any Initial Exchange Debenture, whether or not such
Initial Exchange Debenture bears the Private Placement Legend, if (x)
the requested transfer is at least two years after the original issue
date of the Initial Exchange Debenture or (y) the proposed transferee
has delivered to the Exchange Debenture Registrar a certificate
substantially in the form set forth in Section 308.
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(ii) If the proposed transferor is an Agent Member holding
a beneficial interest in the Global Exchange Debenture, upon receipt
by the Exchange Debenture Registrar of (x) the documents, if any,
required by paragraph (i) and (y) instructions given in accordance
with the Depositary's and the Exchange Debenture Registrar's
procedures therefor, the Exchange Debenture Registrar shall reflect on
its books and records the date and a decrease in the principal amount
of the Global Exchange Debenture in an amount equal to the principal
amount of the beneficial interest in the Global Exchange Debenture to
be transferred, and the Company shall execute, and the Debentures
Trustee shall authenticate and deliver, one or more Certificated
Exchange Debentures 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
Exchange Debenture to a QIB:
(i) If the Exchange Debenture to be transferred consists
of Certificated Exchange Debentures, the Exchange Debenture 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 Exchange Debenture stating, or has otherwise advised the
Company and the Exchange Debenture 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 Exchange Debenture stating, or has otherwise advised the
Company and the Exchange Debenture Registrar in writing, that it is
purchasing the Initial Exchange Debenture 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 Exchange Debenture to be transferred consists of
Certificated Exchange Debentures, upon receipt by the Exchange
Debenture Registrar of instructions given in accordance with the
Depositary's and the Exchange Debenture Registrar's procedures
therefor, the Exchange Debenture Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
Global Exchange Debenture in an amount equal to the principal amount
of the Certificated Exchange Debentures to be transferred, and the
Debentures Trustee shall cancel the Certificated Exchange Debenture so
transferred.
(c) Private Placement Legend. Upon the transfer,
exchange or replacement of Exchange Debentures not bearing the Private
Placement Legend, the Exchange Debenture
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Registrar shall deliver Exchange Debentures that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Exchange
Debentures bearing the Private Placement Legend, the Exchange Debenture
Registrar shall deliver only Exchange Debentures 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 Exchange
Debenture Registrar an Opinion of Counsel reasonably satisfactory to the
Company and the Debentures 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 Exchange Debenture
bearing the Private Placement Legend, each Holder of such an Exchange
Debenture acknowledges the restrictions on transfer of such Exchange Debenture
set forth in this Exchange Indenture and in the Private Placement Legend and
agrees that it shall transfer such Exchange Debenture only as provided in this
Exchange Indenture. The Debentures Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Exchange Indenture or under applicable law with
respect to any transfer of any interest in any Exchange Debenture (including
any transfers between or among Depositary participants or beneficial owners of
interests in any Global Exchange Debenture) 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 Exchange
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.
The Exchange Debenture 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 Exchange
Debenture Registrar.
SECTION 308. Form of Certificate to Be Delivered in
Connection with Transfers to Non-QIB Institutional Accredited Investors.
Citadel Broadcasting Company
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Prudential Securities Incorporated
NationsBanc Capital Markets, Inc.
BancBoston Securities Inc.
c/o Prudential Securities Incorporated
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Ladies and Gentlemen:
In connection with our proposed purchase of $
aggregate principal amount of 13-1/4% [Series B]* Exchange Debentures due 2009
(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 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
"Debentures 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 Debentures Trustee reserve the
right prior to any offer, sale or other transfer of the Securities
prior to the Resale
__________________________________
* Include only for New Exchange Debentures.
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Restriction Termination Date pursuant to clauses (c), (d) or (e) above
to require the delivery of an opinion of counsel, certifications or
other information satisfactory to the Company and the Debentures
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 Debentures 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:______________________________________
Upon transfer, the Securities should be registered in the name
of the new beneficial owner as follows:
Name:___________________________________________________________________________
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Address:________________________________________________________________________
Taxpayer ID
Number:_________________________________________________________________________
SECTION 309. [INTENTIONALLY OMITTED]
SECTION 310. Mutilated, Destroyed, Lost and Stolen Exchange
Debentures.
If (i) any mutilated Exchange Debenture is surrendered to the
Debentures Trustee, or (ii) the Company and the Debentures Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Exchange Debenture, and there is delivered to the Company and the Debentures
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 Debentures Trustee that such Exchange Debenture has been acquired by a bona
fide purchaser, the Company shall execute and upon Company Order the Debentures
Trustee shall authenticate and deliver, in exchange for any such mutilated
Exchange Debenture or in lieu of any such destroyed, lost or stolen Exchange
Debenture, a new Exchange Debenture of like tenor and principal amount, bearing
a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Exchange
Debenture has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Exchange Debenture, pay such Exchange
Debenture.
Upon the issuance of any new Exchange Debenture 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 Debentures Trustee)
in connection therewith.
Every new Exchange Debenture issued pursuant to this Section
in lieu of any mutilated, destroyed, lost or stolen Exchange Debenture shall
constitute an original additional contractual obligation of the Company, any
Subsidiary Debentures Guarantor and any other obligor upon the Exchange
Debentures, whether or not the mutilated, destroyed, lost or stolen Exchange
Debenture shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Exchange Indenture equally and proportionately with any
and all other Exchange Debentures duly issued hereunder.
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 Exchange
Debentures.
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SECTION 311. Payment of Interest; Interest Rights Preserved.
Interest on any Exchange Debenture 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 Exchange Debenture (or one or more
Predecessor Exchange Debentures) 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, if the installment of interest is payable in
money, 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 Exchange
Debenture Register.
Any interest on any Exchange Debenture 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
Exchange Debentures (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 Exchange
Debentures (or their respective Predecessor Exchange Debentures) 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 Debentures Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
each Exchange Debenture 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 Debentures Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest (or, if an Exchange Debenture has
been issued as payment of interest in lieu of money, the Company shall
deposit such Exchange Debenture in principal amount equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest) or shall make arrangements satisfactory to the Debentures
Trustee for such deposit prior to the date of the proposed payment,
such money (or, if an Exchange Debenture has been issued as payment of
interest, such Exchange Debenture) 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 Debentures 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 Debentures Trustee of the notice of the proposed
payment. The Debentures 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
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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, such Defaulted Interest shall be paid to the Persons in whose
names the Exchange Debentures (or their respective Predecessor
Exchange Debentures) 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 Exchange
Debentures may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Debentures
Trustee of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Debentures Trustee.
Subject to the foregoing provisions of this Section, each
Exchange Debenture delivered under this Exchange Indenture upon registration of
transfer of or in exchange for or in lieu of any other Exchange Debenture shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Exchange Debenture.
SECTION 312. Persons Deemed Owners.
Prior to the due presentment of an Exchange Debenture for
registration of transfer, the Company, the Debentures Trustee and any agent of
the Company or the Debentures Trustee may treat the Persons in whose names,
including the Global Exchange Debenture, such Exchange Debentures are
registered as the owners of such Exchange Debenture for the purpose of
receiving payment of principal of (and premium, if any) and (subject to
Sections 305 and 311) interest on such Exchange Debenture and for all other
purposes whatsoever, whether or not such Exchange Debenture be overdue, and
none of the Company, any Subsidiary Debentures Guarantor, the Debentures
Trustee nor any agent of the Company, any Subsidiary Debentures Guarantor or
the Debentures Trustee shall be affected by notice to the contrary.
SECTION 313. Cancellation.
All Exchange Debentures surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Debentures Trustee, be delivered to the Debentures Trustee and shall
be promptly cancelled by it. If the Company shall acquire any of the Exchange
Debentures 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 Exchange Debentures unless and until the same are
surrendered to the Debentures Trustee for cancellation pursuant to this Section
313. No Exchange Debentures shall be authenticated in lieu of or in exchange
for any Exchange Debentures cancelled as provided in this Section,
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except as expressly permitted by this Exchange Indenture. All cancelled
Exchange Debentures held by the Debentures Trustee shall be disposed of by the
Debentures Trustee in accordance with its customary procedures unless by
Company Order the Company shall direct that cancelled Exchange Debentures be
returned to it.
SECTION 314. Computation of Interest.
Interest on the Exchange Debentures shall be computed on the
basis of a 360-day year of twelve 30-day months.
SECTION 315. CUSIP Numbers.
The Company in issuing Exchange Debentures may use "CUSIP"
numbers (if then generally in use) in addition to serial numbers; if so, the
Debentures 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 Exchange Debentures
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
Exchange Debentures, 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 Exchange 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 Exchange Debentures expressly provided for herein or
pursuant hereto) and the Debentures Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Exchange Indenture when:
(1) either
(a) all the Exchange Debentures theretofore
authenticated and delivered (other than (i) Exchange
Debentures which have been lost, stolen or destroyed and which
have been replaced or paid as provided in Section 310 and (ii)
Exchange Debentures for whose payment money has theretofore
been deposited in trust with the Debentures Trustee or any
Paying Agent or segregated
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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 Debentures Trustee for cancellation, or
(b) all such Exchange Debentures not theretofore
delivered to the Debentures Trustee for cancellation
(i) have become due and payable or
(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 Debentures Trustee for the giving of notice of
redemption by the Debentures Trustee in the name, and
at the expense, of the Company,
and the Company has irrevocably deposited or caused to be
deposited with the Debentures Trustee as trust funds in trust
for such purpose an amount sufficient to pay and discharge the
entire Debt on such Exchange Debentures not theretofore
delivered to the Debentures Trustee for cancellation, for
principal (and premium, if any) and interest to the date of
such deposit (in the case of Exchange Debentures 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 Debentures Guarantors
have paid or caused to be paid all sums payable hereunder by the
Company or the Subsidiary Debentures Guarantors; and
(3) the Company has delivered to the Debentures 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 Exchange Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this
Exchange Indenture, the obligations of the Company to the Debentures Trustee
under Section 607 and, if money shall have been deposited with the Debentures
Trustee pursuant to subclause (b) of clause (1) of this Section, the
obligations of the Debentures Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.
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SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Debentures Trustee pursuant to Section 401
shall be held in trust and applied by it, in accordance with the provisions of
the Exchange Debentures and this Exchange Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Debentures 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 Debentures Trustee; but such money need
not be segregated from other funds except to the extent required by law.
If the Debentures 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 Debentures Guarantor's
obligations under this Exchange Indenture and the Exchange Debentures 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 Exchange Debentures because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Exchange Debentures to receive such payment from the
money or U.S. Government Obligations held by the Debentures 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
Exchange Debenture when it becomes due and payable, and continuance of
such default for a period of 30 days.
(c) Default in the payment of the principal of (or
premium, if any, on) any Exchange Debenture when due.
(c) Failure to perform or comply with Article Eight.
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(d) Default in the performance, or breach, of any
covenant or agreement of the Company or any Subsidiary Debentures
Guarantor contained in this Exchange Indenture or any Subsidiary
Debentures 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 Debentures Trustee or to the Company and the Debentures Trustee
by the Holders of at least 25% in aggregate principal amount of the
Exchange Debentures 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.
(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 Debentures Guarantee ceases to be in
full force and effect or is declared null and void or any Subsidiary
Debentures Guarantor denies that it has any further liability under
any Subsidiary Debentures Guarantee, or gives notice to such effect
(other than by reason of the termination of this Exchange Indenture or
the release of any Subsidiary Debentures Guarantee in accordance with
this Exchange Indenture), and such condition has continued for a
period of 30 days after written notice of such failure requiring the
Subsidiary Debentures Guarantor and the Company to remedy the same has
been given (x) to the Company by the Debentures Trustee or (y) to the
Company and the Debentures Trustee by the Holders of 25% in aggregate
principal amount of the Exchange Debentures 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) apointment 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.
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(i) The Company or any Significant Subsidiary (A)
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, (B) 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 of the Company or any Significant
Subsidiary or (C) 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 Debentures Trustee or the Holders
of not less than 25% in aggregate principal amount of the Exchange Debentures
then outstanding may, and the Debentures Trustee at the request of such Holders
shall, declare the principal of all of the outstanding Exchange Debentures
immediately due and payable, by a notice in writing to the Company (and to the
Debentures 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 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 Debentures Trustee or any
Holder of Exchange Debentures.
At any time after a declaration of acceleration under this
Exchange Indenture, but before a judgment or decree for payment of the money
due has been obtained by the Debentures Trustee, the Holders of a majority in
aggregate principal amount of the outstanding Exchange Debentures, by written
notice to the Company and the Debentures Trustee, may rescind such declaration
and its consequences if:
(i) the Company has paid or deposited with the
Debentures Trustee a sum sufficient to pay
(A) all overdue interest on all Exchange
Debentures,
(B) all unpaid principal of (and premium, if any,
on) any outstanding Exchange Debentures that has become due
otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Exchange Debentures,
(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 Exchange Debentures,
and
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(D) all sums paid or advanced by the Debentures
Trustee under this Exchange Indenture and the reasonable
compensation, expenses, disbursements and advances of the
Debentures 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
Exchange Debentures 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 Debentures Trustee.
The Company and each of the Subsidiary Debentures Guarantors
covenants that if
(a) default is made in the payment of any interest on any
Exchange Debenture 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 Exchange Debenture at the Stated Maturity
or other maturity thereof,
the Company and the Subsidiary Debentures Guarantors shall, upon demand of the
Debentures Trustee, pay to the Debentures Trustee for the benefit of the
Holders of such Exchange Debentures, the whole amount then due and payable on
such Exchange Debentures 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 Exchange Debentures; 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 Debentures Trustee, its agents and counsel
and all other amounts due to the Debentures Trustee under Section 607.
If the Company or any Subsidiary Debentures Guarantor, as the
case may be, fails to pay such amounts forthwith upon such demand, the
Debentures 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 Debentures Guarantor or
any other obligor upon the Exchange Debentures 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 Debentures Guarantor or any other obligor upon the
Exchange Debentures, wherever situated.
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If an Event of Default occurs and is continuing, the
Debentures 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 Debentures Trustee shall deem most effectual to protect and enforce such
rights, whether for the specific enforcement of any covenant or agreement in
this Exchange Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy subject, however, to Section 512. No
recovery of any such judgment upon any property of the Company or any
Subsidiary Debentures Guarantor shall affect or impair any rights, powers or
remedies of the Debentures Trustee or the Holders.
SECTION 504. Debentures 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
Debentures Guarantor, upon the Exchange Debentures or the property of the
Company or of such other obligor or their creditors, the Debentures Trustee
(irrespective of whether the principal of the Exchange Debentures shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Debentures 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 Exchange Debentures, 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 be necessary or advisable in
order to have the claims of the Debentures Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Debentures 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 Debentures Trustee and, in the event that
the Debentures Trustee shall consent to the making of such payments directly to
the Holders, to pay the Debentures Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Debentures Trustee,
its agents and counsel, and any other amounts due the Debentures Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the
Debentures Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization,
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arrangement, adjustment or composition affecting the Exchange Debentures or the
rights of any Holder thereof, or to authorize the Debentures Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Debentures Trustee may, on behalf of such Holders, vote for the
election of a trustee in bankruptcy or other similar official.
SECTION 505. Debentures Trustee May Enforce Claims Without
Possession of Exchange Debentures.
All rights of action and claims under this Exchange Indenture,
the Exchange Debentures or the Subsidiary Debentures Guarantees may be
prosecuted and enforced by the Debentures Trustee without the possession of any
of the Exchange Debentures or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Debentures 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 Debentures Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Exchange Debentures
in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Fourteen, any money collected by the
Debentures Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Debentures Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Exchange Debentures 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 Debentures
Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Exchange
Debentures 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 Exchange
Debentures 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 Exchange
Debentures, 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 Debentures Trustee have been paid in full as required
by this Exchange Indenture.
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SECTION 507. Limitation on Suits.
No Holder of any Exchange Debentures shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Exchange
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 Debentures Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Exchange Debentures shall have made written request
to the Debentures Trustee to institute proceedings in respect of such
Event of Default in its own name as Debentures Trustee hereunder;
(3) such Holder or Holders have offered to the Debentures
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Debentures 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 Debentures Trustee during such 30-day period by
the Holders of a majority or more in principal amount of the
Outstanding Exchange Debentures;
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 Exchange Indenture, any Exchange Debenture or any Subsidiary Debentures
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 Exchange Indenture, any Exchange Debenture or
any Subsidiary Debentures Guarantee, except in the manner herein provided and
for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Exchange
Indenture, the Holder of any Exchange Debenture shall have the right, which is
absolute and unconditional, to receive payment, as provided herein (including,
if applicable, Article Eleven) and in such Exchange Debenture of the principal
of (and premium, if any) and (subject to Section 311) interest on such Exchange
Debenture on the respective Stated Maturities expressed in such Exchange
Debenture (or, in the case of redemption or repurchase, on the Redemption Date
or repurchase) and to
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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 Debentures Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Exchange Indenture or any
Subsidiary Debentures Guarantee and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Debentures
Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, any Subsidiary Debentures
Guarantor, any other obligor on the Exchange Debentures, the Debentures Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Debentures
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 Exchange Debentures in the
last paragraph of Section 310, no right or remedy herein conferred upon or
reserved to the Debentures 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 Debentures Trustee or of any
Holder of any Exchange Debenture 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 Debentures Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Debentures Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of
the Outstanding Exchange Debentures shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Debentures Trustee, or exercising any trust or power conferred on the
Debentures Trustee, provided that
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(1) such direction shall not be in conflict with any rule
of law or with this Exchange Indenture or any Subsidiary Debentures
Guarantee;
(2) the Debentures 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 Debentures Trustee may take any other action deemed
proper by the Debentures 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 Exchange Debentures may, on behalf of the Holders of
all of the Exchange Debentures, waive any past defaults under this Exchange
Indenture, except a default in the payment of the principal of (and premium, if
any) or interest on any Exchange Debenture, or in respect of a covenant or
provision that under this Exchange Indenture cannot be modified or amended
without the consent of the Holder of each Exchange Debenture 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 Exchange 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 Debentures 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 Debentures Guarantor or any such obligor from paying all or any
portion of the principal of, premium, if any, or interest on the Exchange
Debentures contemplated herein or in the Exchange Debentures or which may
affect the covenants or the performance of this Exchange Indenture; and each of
the Company, any Subsidiary Debentures 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 Debentures Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
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SECTION 515. Undertaking for Costs.
All parties to this Exchange Indenture agree, and each Holder
of any Exchange Debenture 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 Exchange Indenture, or in any
suit against the Debentures Trustee for any action taken, suffered or omitted
by it as Debentures 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 Debentures 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 Exchange Debentures, 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 Exchange Debenture on or after the respective Stated Maturities
expressed in such Exchange Debenture (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE SIX
THE DEBENTURES TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Debentures Trustee shall perform only such duties as are specifically
set forth in this Exchange Indenture and no implied covenants or obligations
shall be read into this Exchange Indenture against the Debentures Trustee; and
(2) in the absence of bad faith on its part, the Debentures 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
Debentures Trustee and conforming to the requirements of this Exchange
Indenture; but in the case of any such certificates or opinions which by any
provision hereby are specifically required to be furnished to the Debentures
Trustee, the Debentures Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Exchange
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 Debentures
Trustee has actual knowledge or of which written notice of such Default or
Event of Default shall have been given to the Debentures Trustee by the
Company, any other obligor of the Exchange Debentures or by any Holder, the
Debentures Trustee shall exercise such of the rights and powers vested in it by
this
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Exchange Indenture, and use the same degree of care and skill in their
exercise, as a prudent Person would exercise or use under the circumstances in
the conduct of his own affairs.
(c) No provision of this Exchange Indenture shall be
construed to relieve the Debentures 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 Debentures 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 Debentures Trustee was negligent in
ascertaining the pertinent facts;
(3) the Debentures 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 Exchange Debentures
relating to the time, method and place of conducting any proceeding
for any remedy available to the Debentures Trustee, or exercising any
trust or power conferred upon the Debentures Trustee, under this
Exchange Indenture; and
(4) no provision of this Exchange Indenture shall require
the Debentures 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 Exchange Indenture relating to the conduct or affecting the
liability of or affording protection to the Debentures 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 Debentures Trustee, the Debentures Trustee shall mail to
each Holder of the Exchange Debentures 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 Exchange Debentures, the Debentures 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 Debentures Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Debentures 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 Exchange
Indenture the Debentures Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or omitting any
action hereunder, the Debentures 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 Debentures 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 Debentures Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Exchange
Indenture at the request or direction of any of the Holders pursuant
to this Exchange Indenture, unless such Holders shall have offered to
the Debentures 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 Debentures 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 Debentures Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Debentures
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;
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(7) the Debentures 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 Debentures Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(8) the Debentures 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 Exchange Indenture; and they
Debentures Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Debentures
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Debentures
Trustee at the Corporate Trust Office of the Debentures Trustee, and
such notice references the Company, the Exchange Debentures or this
Exchange Indenture.
(c) The Debentures Trustee shall not be required 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.
SECTION 604. Debentures Trustee Not Responsible for Recitals
or Issuance of Exchange Debentures.
The recitals contained herein and in the Exchange Debentures,
except for the Debentures Trustee's certificates of authentication, shall be
taken as the statements of the Company and the Subsidiary Debentures
Guarantors, and the Debentures Trustee assumes no responsibility for their
correctness. The Debentures Trustee makes no representations as to the
validity or sufficiency of this Exchange Indenture or of the Exchange
Debentures or of the Subsidiary Debentures Guarantees, except that the
Debentures Trustee represents that it is duly authorized to execute and deliver
this Exchange Indenture, authenticate the Exchange Debentures 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 Debentures Trustee shall not be
accountable for the use or application by the Company of Exchange Debentures or
the proceeds thereof.
SECTION 605. May Hold Exchange Debentures.
The Debentures Trustee, any Paying Agent, any Exchange
Debenture Registrar, any Authenticating Agent or any other agent of the Company
or of the Debentures Trustee, in its individual or any other capacity, may
become the owner or pledgee of Exchange Debentures and, subject to TIA Sections
310(b) and 311, may otherwise deal with the Company with the
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same rights it would have if it were not Debentures Trustee, Paying Agent,
Exchange Debenture Registrar, Authenticating Agent or such other agent. The
Debentures 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 Debentures 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 Debentures 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 Debentures
Guarantor.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Debentures Trustee from time to time
such compensation as shall be agreed to in writing between the Company
and the Debentures 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 Debentures Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Debentures Trustee in accordance with any provision of this Exchange
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 Debentures Trustee or any
predecessor Debentures 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 Debentures 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 Debentures Trustee, to pay or reimburse the Debentures Trustee
for expenses, disbursements and advances and to indemnify and hold harmless the
Debentures Trustee shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Exchange
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Indenture. As security for the performance of such obligations of the Company,
the Debentures Trustee shall have a claim prior to the Holders of the Exchange
Debentures upon all property and funds held or collected by the Debentures
Trustee as such, except funds held in trust for the payment of principal of
(and premium, if any) or interest on particular Exchange Debentures.
When the Debentures 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 Exchange Indenture.
SECTION 608. Corporate Debentures Trustee Required;
Eligibility.
There shall be at all times a Debentures Trustee hereunder
which shall be eligible to act as Debentures 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
Debentures Trustee does not have an office in The City of New York, the
Debentures Trustee may appoint an agent in The City of New York reasonably
acceptable to the Company to conduct any activities which the Debentures
Trustee may be required under this Exchange 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
Debentures 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 Debentures Trustee
and no appointment of a successor Debentures Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Debentures Trustee in accordance with the applicable requirements of this
Section.
(b) The Debentures 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 Debentures Trustee
by written instrument executed by authority of the Board of Directors, a copy
of which shall be delivered to the resigning Debentures Trustee and a copy
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to the successor Debentures Trustee. If an instrument of acceptance required
by this Section shall not have been delivered to the Debentures Trustee within
30 days after the giving of such notice of resignation, the resigning
Debentures Trustee may petition any court of competent jurisdiction for the
appointment of a successor Debentures Trustee.
(c) The Debentures Trustee may be removed at any time by
Act of the Holders of not less than a majority in principal amount of the
Outstanding Exchange Debentures, delivered to the Debentures Trustee and to the
Company. Upon such removal, the Company shall promptly appoint a successor
Debentures 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
Debentures Trustee and a copy to the successor Debentures Trustee. If an
instrument of acceptance required by this Section shall not have been delivered
to the resigning Debentures Trustee within 30 days after the giving of such
notice of removal, the removed Debentures Trustee may petition any court of
competent jurisdiction for the appointment of a successor Debentures Trustee.
(d) If at any time:
(1) the Debentures 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 an
Exchange Debenture for at least six months, or
(2) the Debentures 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 an Exchange Debenture for at least six months, or
(3) the Debentures Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a Custodian of
the Debentures Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Debentures 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
Debentures Trustee, or (ii) subject to TIA Section 315(e), any Holder who has
been a bona fide Holder of an Exchange Debenture 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 Debentures Trustee and the
appointment of a successor Debentures Trustee.
(e) If the Debentures Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Debentures Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Debentures Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of such
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vacancy, a successor Debentures Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Exchange
Debentures delivered to the Company and the retiring Debentures Trustee, the
successor Debentures Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Debentures Trustee and supersede the
successor Debentures Trustee appointed by the Company. If no successor
Debentures 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 an Exchange Debenture 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 Debentures Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Debentures Trustee and each appointment of a successor
Debentures Trustee to the Holders of Exchange Debentures in the manner provided
for in Section 106. Each notice shall include the name of the successor
Debentures Trustee and the address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
Every successor Debentures Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and to the retiring Debentures
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Debentures Trustee shall become effective and such
successor Debentures Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Debentures Trustee; but, on request of the Company or the successor
Debentures Trustee, such retiring Debentures Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Debentures Trustee all the rights, powers and trusts of the retiring Debentures
Trustee and shall duly assign, transfer and deliver to such successor
Debentures Trustee all property and money held by such retiring Debentures
Trustee hereunder. Upon request of any such successor Debentures Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Debentures Trustee all such rights,
powers and trusts.
No successor Debentures Trustee shall accept its appointment
unless at the time of such acceptance such successor Debentures Trustee shall
be qualified and eligible under this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Debentures 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 Debentures
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Debentures Trustee, shall be the
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successor of the Debentures 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 Exchange Debentures shall have been authenticated, but not
delivered, by the Debentures Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Debentures Trustee may adopt
such authentication and deliver the Exchange Debentures so authenticated with
the same effect as if such successor Debentures Trustee had itself
authenticated such Exchange Debentures. In case at that time any of the
Exchange Debentures shall not have been authenticated, any successor Debentures
Trustee may authenticate such Exchange Debentures either in the name of any
predecessor hereunder or in the name of the successor Debentures Trustee. In
all such cases such certificates shall have the full force and effect which
this Exchange Indenture provides for the certificate of authentication of the
Debentures Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Debentures Trustee or to
authenticate Exchange Debentures in the name of any predecessor Debentures
Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY DEBENTURES TRUSTEE
SECTION 701. Company to Furnish Debentures Trustee Names and
Addresses.
The Company shall furnish or cause to be furnished to the
Debentures Trustee
(a) semiannually, not more than 10 days after each
Regular Record Date, a list, in such form as the Debentures 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 Debentures 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 Debentures Trustee shall be the
Exchange Debenture Registrar, no such list need be furnished.
SECTION 702. Disclosure of Names and Addresses of Holders.
Every Holder of Exchange Debentures, by receiving and holding
the same, agrees with the Company and the Debentures Trustee that none of the
Company or the Debentures Trustee or any agent of either of them shall be held
accountable by reason of the disclosure of
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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 Debentures 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 Debentures Trustee.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Exchange Debentures, the Debentures
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).
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
Debentures Trustee, all of the Company's obligations under this
Exchange Indenture and the Exchange Debentures.
(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
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this Exchange 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 Exchange Indenture, each Subsidiary Debentures Guarantor, unless
it is the other party to the transaction described above, has by
supplemental indenture confirmed that its Subsidiary Debentures
Guarantee applies to the Surviving Entity's obligations under this
Exchange Indenture and the Exchange Debentures.
(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 Debentures Trustee, in form and substance reasonably satisfactory
to the Debentures Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such transaction complies with the
requirements of this Exchange 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 Exchange Indenture, the Surviving Entity shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Exchange Indenture, and thereafter the Company shall,
except in the case of a lease, be discharged from all its obligations and
covenants under this Exchange Indenture and the Exchange Debentures.
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 Debentures Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Debentures 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 Exchange Indenture and in the Exchange Debentures;
or
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(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 Exchange Debentures in
addition to or in place of the Certificated Exchange Debentures; or
(5) to evidence and provide for the acceptance of
appointment under this Exchange Indenture by a successor Debentures
Trustee; or
(6) to secure the Exchange Debentures; or
(7) to cure any ambiguity, to correct or supplement any
provision in this Exchange Indenture that may be defective or
inconsistent with any other provision in this Exchange Indenture, or
to make any other provisions with respect to matters or questions
arising under this Exchange 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 Exchange
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 Exchange Debentures (including consents
obtained in connection with a tender offer or exchange offer for the Exchange
Debentures), by Act of such Holders delivered to the Company and the Debentures
Trustee, the Company, when authorized by a Board Resolution, and the Debentures
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 Exchange Indenture or of modifying in any manner
the rights of the Holders under this Exchange Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Exchange Debenture affected thereby:
(a) change the Stated Maturity of the principal of, or
any installment of interest on, any Exchange Debenture, 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 Exchange
Debenture 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);
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(b) reduce the percentage in principal amount of
Outstanding Exchange Debentures, the consent of whose Holders is
required for any such amendment or for any waiver of compliance with
certain provisions of, or certain defaults and their consequences
provided for under, this Exchange Indenture;
(c) modify any of the provisions of this Exchange
Indenture relating to the subordination of the Exchange Debentures or
the Subsidiary Debentures 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 Exchange Debentures.
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 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 Exchange Indenture, the Debentures
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 Exchange Indenture. The
Debentures Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Debentures Trustees own rights, duties
or immunities under this Exchange Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Exchange Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Exchange Indenture for
all purposes; and every Holder of Exchange Debentures theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby (except as
provided in Section 902).
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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 Exchange Debentures to Supplemental
Indentures.
Exchange Debentures authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Debentures Trustee, bear a notation in form approved by the
Debentures Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Exchange Debentures so
modified as to conform, in the opinion of the Debentures Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Debentures Trustee in exchange
for Outstanding Exchange Debentures.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Debentures
Trustee of any supplemental indenture pursuant to the provisions of Section
902, the Company shall give notice thereof to the Holders of each Outstanding
Exchange Debenture 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 and Senior Subordinated
Debt.
No supplemental indenture shall adversely affect the rights of
any holders of Senior Debt and Senior Subordinated Debt under Article Fourteen
unless the requisite holders of each issue of Senior Debt and Senior
Subordinated 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 Exchange Debentures in accordance with the terms of
the Exchange Debentures and this Exchange Indenture.
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SECTION 1002. Maintenance of Office or Agency.
The Company shall maintain in The City of New York an office
or agency where Exchange Debentures may be presented or surrendered for
payment, where Exchange Debentures may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Exchange Debentures and this Exchange Indenture may be served.
The Corporate Trust Office of the Debentures 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 Debentures 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
Debentures Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Debentures Trustee, and the Company hereby appoints the Debentures 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
Exchange Debentures may be presented or surrendered for any or all such
purposes and may from time to time rescind any such 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
Debentures Trustee of any such designation or rescission and any change in the
location of any such other office or agency.
SECTION 1003. Money for Exchange Debenture 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 Exchange Debentures, 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 (or, in the case
of interest, Exchange Debentures issued in lieu of payment thereof in money in
accordance with the Exchange Debentures and this Exchange Indenture) until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and shall promptly notify the Debentures Trustee of its action or failure to so
act.
Whenever the Company shall have one or more Paying Agents for
the Exchange Debentures, it shall, on or before each due date of the principal
of (or premium, if any) or interest on any Exchange Debentures, 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 (or, in the case of interest, Exchange Debentures issued in lieu of payment
thereof
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in money in accordance with the Exchange Debentures and this Exchange
Indenture), 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 Debentures Trustee) the Company shall promptly notify the Debentures
Trustee of such action or any failure to so act.
The Company shall cause each Paying Agent (other than the
Debentures Trustee) to execute and deliver to the Debentures Trustee an
instrument in which such Paying Agent shall agree with the Debentures 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 (or, in the case of
interest, Exchange Debentures issued in lieu of payment thereof in
money in accordance with the Exchange Debentures and this Exchange
Indenture) on Exchange Debentures 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 Debentures Trustee notice of any default by
the Company (or any other obligor upon the Exchange Debentures) 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 Debentures Trustee, forthwith
pay to the Debentures 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 Exchange Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Debentures
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Debentures 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 Debentures Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.
Any money deposited with the Debentures 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 (or, in the case of interest, Exchange
Debentures issued in lieu of payment thereof in money in accordance with the
Exchange Debentures and this Exchange Indenture) on any Exchange Debenture 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 Exchange Debenture shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the
Debentures Trustee or such Paying Agent
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with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Debentures 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, 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
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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.
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
Debentures 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
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(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 Debentures
Guarantor under the Credit Facility (including guarantees thereof by
the 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 Junior Subordinated Debt and is
held by the Company or such Restricted Subsidiary) or owed to the
Company or a Subsidiary Debentures Guarantor by a Restricted
Subsidiary that is not a Subsidiary Debentures Guarantor, provided the
incurrence of such Debt did not violate the provisions of Section
1010.
(iv) Debt represented by the Notes and the Subsidiary
Notes Guarantees.
(v) Debt represented by the Exchange Debentures and the
Subsidiary Debentures Guarantees.
(vi) Hedging Obligations of the Company or any of its
Restricted Subsidiaries incurred in the ordinary course of business.
(vii) 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.
(viii) 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
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property; provided that the aggregate principal amount of Debt under
this clause (viii) does not exceed $2,000,000 at any one time
outstanding.
(ix) Debt of the Company or any Subsidiary Debentures
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.
(x) 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.
(xi) 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.
(xii) 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), (vi), (vii), (viii), (ix) or (x) 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 Junior Subordinated Debt, such new Debt is made subordinate to the
Exchange Debentures at least to the same extent as the Debt being
refinanced, (C) in the case of any refinancing of the Exchange
Debentures or any Pari Passu Debt, such Debt is Pari Passu Debt or
Junior 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.
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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
Junior 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,
(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
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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 Exchange Debentures, 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:
(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
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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 Junior 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 Junior 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, Junior
Subordinated Debt, so long as the Company or a Restricted Subsidiary
would be permitted to refinance such original Junior Subordinated Debt
with such new Junior Subordinated Debt pursuant to clause (xii) of the
definition of Permitted Debt.
(e) The repurchase of any Junior Subordinated Debt at a
purchase price not greater than 101% of the principal amount of such
Junior 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 Exchange
Debentures and has repurchased all Exchange Debentures 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 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,
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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 Section shall be Restricted Payments that shall be permitted to be
taken in accordance with this Section 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
section shall be Restricted Payments that shall be permitted to be taken in
accordance with this section 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 Exchange
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 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.
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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 Exchange Indenture, such Restricted Payment shall be deemed to have
been made in compliance with this Exchange 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 Exchange Debentures 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 Exchange Debentures 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 (a "Change of Control Offer") to each Holder of Exchange Debentures by
first-class mail, postage prepaid, at its address appearing in the Exchange
Debentures 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 Exchange Debentures 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 Exchange Debenture not tendered shall
continue to accrue interest;
(iv) that, unless the Company defaults in the payment of
the Change of Control Payment, any Exchange Debentures accepted for
payment pursuant to the Change of Control Offer shall cease to accrue
interest after the Change of Control Purchase Date;
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(v) that a Holder electing to have any Exchange Debenture
or a portion thereof purchased pursuant to the Change of Control Offer
shall be required to surrender such Exchange Debenture 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 Exchange
Debentures delivered for purchase and a statement that such Holder is
withdrawing its election to have such Exchange Debentures purchased;
(vii) that the Holders whose Exchange Debentures are being
purchased only in part shall be issued new Exchange Debentures equal
in principal amount to the unpurchased portion of the Exchange
Debentures surrendered; provided that each Exchange Debenture
purchased and each new Exchange Debenture issued shall be in a
principal amount of $1,000 or an integral multiple thereof; 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 Exchange Debentures 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 Exchange Debentures or
portions thereof so accepted; and (iii) deliver, or cause to be delivered, to
the Trustee, all Exchange Debentures or portions thereof so accepted together
with an Officers' Certificate specifying the Exchange Debentures or portions
thereof accepted for payment by the Company. The Paying Agent shall promptly
mail to the Holders of Exchange Debentures so accepted payment in an amount
equal to the purchase price, and the Trustee shall promptly authenticate and
mail to such Holders a new Exchange Debenture equal in principal amount to any
unpurchased portion of the Exchange Debentures surrendered; provided that each
Exchange Debenture purchased and each new Exchange Debenture issued shall be in
a principal amount of $1,000 or an integral multiple thereof.
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 Exchange Debentures under this Section 1011.
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
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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 Exchange Debentures or, if such Change
of Control Offer is made, to pay for the Exchange Debentures 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 Exchange 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 Exchange Debentures 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 or Senior Subordinated Debt of the Company
or a Subsidiary Debentures 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 Exchange
Debentures (an "Asset Sale Offer") to purchase, on a pro rata basis, the
maximum principal amount of Exchange Debentures, 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 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
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the date on which the aggregate amount of Excess Proceeds exceeds $5,000,000,
the Company shall give to each Holder of the Exchange Debentures, with a copy
to the Debentures 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 Exchange Debentures at the Offered Price,
subject to proration in the event the Excess Proceeds are less than
the aggregate Offered Price of all Exchange Debentures tendered;
(ii) the date of purchase of Exchange Debentures 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 Exchange Debentures purchased on the Asset Sale
Purchase Date, provided that a Holder must surrender its Exchange
Debenture 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 Exchange Debenture 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 Exchange Debenture 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 Exchange Debentures and their election to require the Company
to purchase such Exchange Debentures, 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 Exchange Debentures
tendered for purchase, and a statement that such Holder is withdrawing
its election to have such Exchange Debentures purchased;
(vii) that the Holders whose Exchange Debentures are being
purchased only in part shall be issued new Exchange Debentures equal
in principal amount to the unpurchased portion of the Exchange
Debentures surrendered; which unpurchased portion must be equal to
$1,000 in principal amount or an integral multiple thereof; and
(viii) the instructions a Holder must follow in order to
have his Exchange Debentures purchased in accordance with this Section
1012.
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To the extent that the aggregate amount of Exchange Debentures
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 Exchange Debentures surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Exchange Debentures 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 Exchange Debentures 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 Exchange 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 Debentures 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
▇▇▇▇▇▇ Aviation, L.L.C. relating to the lease of an airplane, (b) that
certain agreement not to compete dated December 31, 1996
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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 (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.
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(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 Debentures 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.
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.
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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 Subordinated Debt.
The Company and each Subsidiary Debentures Guarantor shall
not, directly or indirectly, incur or otherwise permit to exist any Debt that
is subordinate in right of payment to any Senior Subordinated Debt of the
Company or such Subsidiary Debentures Guarantor, as the case may be, unless
such Debt is also pari passu with the Exchange Debentures or the Subsidiary
Debentures Guarantee of the Exchange Debentures by such Subsidiary Debentures
Guarantor, as the case may be, or subordinate in right of payment to the
Exchange Debentures or such Subsidiary Debentures Guarantee of the Exchange
Debentures, as the case may be, to at least the same extent as the Exchange
Debentures or such Subsidiary Debentures Guarantee are subordinate in right of
payment to Senior Subordinated Debt or all senior subordinated debt of the
Subsidiary Debentures Guarantors, as the case may be, as set forth in this
Exchange Indenture.
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SECTION 1019. Subsidiary Debentures Guarantees.
The Subsidiary Debentures Guarantors shall, jointly and
severally, unconditionally guarantee the due and punctual payment of the
principal of, premium, if any, and interest on the Exchange Debentures on a
subordinated basis pursuant to the Subsidiary Debentures Guarantees as
described in Article Thirteen. The Subsidiary Debentures Guarantors may be
released from their obligations under the Subsidiary Debentures Guarantees as
described in Article Twelve and a Subsidiary Debentures Guarantor may be
released from its obligations under its Subsidiary Debentures 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 Debentures Guarantor bound by the Subsidiary Debentures Guarantee of
the Exchange Debentures in the form set forth in this Exchange Indenture
(without such Subsidiary Debentures Guarantor being required to execute and
deliver its Subsidiary Debentures Guarantee endorsed on the Exchange
Debentures) and (ii) deliver to the Debentures Trustee an Opinion of Counsel,
in form and substance reasonably satisfactory to the Debentures Trustee, that
the Subsidiary Debentures Guarantee of such Subsidiary Debentures Guarantor is
a valid and legally binding obligation of such Subsidiary Debentures 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 Debentures 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 Debentures Guarantee and (b) with respect to any
guarantee of Junior Subordinated Debt by a Restricted Subsidiary, any such
guarantee is subordinated to such Restricted Subsidiary's Subsidiary Debentures
Guarantee at least to the same extent as such Junior Subordinated Debt is
subordinated to the Exchange Debentures, 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 Junior Subordinated Debt (including
any assumption, guarantee or other liability with respect thereto by any
Restricted Subsidiary) upon any property or assets (including any intercompany
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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
Exchange Debentures are directly secured equally and ratably with (or prior to
in the case of Junior 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 while the Exchange Debentures are issued and
outstanding, whether or not the Company is then required to file reports with
the Commission, the Company will file with the Commission all such reports and
other information as it would be required to file with the Commission by
Sections 13(a) or 15(d) under the Exchange Act if it were subject thereto. The
Company will supply the Debentures Trustee and each Holder, or will supply to
the Debentures Trustee for forwarding to each such Holder, without cost to such
Holder, copies of such reports and other information.
Delivery of such reports, information and documents to the
Debentures Trustee is for informational purposes only and the Debentures
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 Debentures Trustee,
within 90 days after the end of each fiscal year, 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 Exchange Indenture and
further stating, as to each such officer signing such certificate, that, to the
best of his or her 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 Exchange 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 Exchange Debentures is
prohibited or if such event has occurred, a
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description of the event and what action each is taking or purposes to take
with respect thereto. The Officers' Certificate shall also notify the
Debentures 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 Exchange Indenture.
(b) When any Default shall have occurred and be
continuing under this Exchange 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 Debentures 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 Exchange Debentures, 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
Exchange Debentures 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 EXCHANGE DEBENTURES
SECTION 1101. Redemption.
The Exchange Debentures 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 Exchange Debenture,
together with accrued interest to the Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Exchange Debentures at the election of the
Company or otherwise, as permitted or required by any provision of this
Exchange Indenture, shall be made in accordance with such provision and this
Article.
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SECTION 1103. Election to Redeem; Notice to Debentures
Trustee.
The election of the Company to redeem any Exchange Debentures
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 Debentures Trustee), notify the Debentures Trustee
of such Redemption Date and of the principal amount of Exchange Debentures to
be redeemed and shall deliver to the Debentures Trustee such documentation and
records as shall enable the Debentures Trustee to select the Exchange
Debentures to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Debentures Trustee of Exchange
Debentures to Be Redeemed.
If less than all the Exchange Debentures are to be redeemed,
the particular Exchange Debentures to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Debentures Trustee, from the
Outstanding Exchange Debentures not previously called for redemption, in
compliance with the requirements of the principal national securities exchange,
if any, on which such Exchange Debentures are listed, or, if such Exchange
Debentures are not so listed, on a pro rata basis, by lot or by such other
method as the Debentures 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 Exchange
Debentures; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of an Exchange Debenture not redeemed to less
than $1,000.
The Debentures Trustee shall promptly notify the Company in
writing of the Exchange Debentures selected for redemption and, in the case of
any Exchange Debentures selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Exchange Indenture, unless the
context otherwise requires, all provisions relating to redemption of Exchange
Debentures shall relate, in the case of any Exchange Debenture redeemed or to
be redeemed only in part, to the portion of the principal amount of such
Exchange Debenture 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 Exchange Debentures to be redeemed. The Debentures
Trustee shall give notice of redemption in the Company's name and at the
Company's expense; provided, however, that the Company shall deliver to the
Debentures Trustee, at least 45 days prior to the Redemption Date (unless a
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shorter notice shall be satisfactory to the Debentures Trustee), an Officers'
Certificate requesting that the Debentures 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 Exchange Debentures are
to be redeemed, the identification of the particular Exchange
Debentures (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Exchange Debentures to be redeemed and
the aggregate principal amount of Exchange Debentures to be
outstanding after such partial redemption,
(4) in case any Exchange Debenture is to be redeemed in
part only, the notice which relates to such Exchange Debenture shall
state that on and after the Redemption Date, upon surrender of such
Exchange Debenture, the Holder shall receive, without charge, a new
Exchange Debenture or Exchange Debentures 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 Exchange
Debenture, or the portion thereof, to be redeemed, and, unless the
Company defaults in making the redemption payment, that interest on
Exchange Debentures called for redemption (or the portion thereof)
shall cease to accrue on and after said date,
(6) the place or places where such Exchange Debentures
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 Exchange Debentures 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 Exchange Debentures, and
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(10) the paragraph of the Exchange Debentures pursuant to
which the Exchange Debentures are to be redeemed.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Debentures 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 Exchange Debentures which are to be redeemed on that date.
SECTION 1107. Exchange Debentures Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Exchange Debentures 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 Exchange Debentures shall cease to bear interest. Upon
surrender of any such Exchange Debenture for redemption in accordance with said
notice, such Exchange Debenture 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 Exchange
Debentures, or one or more Predecessor Exchange Debentures, 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 Exchange Debenture 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 Exchange Debentures.
SECTION 1108. Exchange Debentures Redeemed in Part.
Any Exchange Debenture 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 Debentures Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Debentures Trustee duly executed by, the Holder thereof or such Holders
attorney duly authorized in writing), and the Company shall execute, and the
Debentures Trustee shall authenticate and deliver to the Holder of such
Exchange Debenture without service charge, a new Exchange Debenture or Exchange
Debentures, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the
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unredeemed portion of the principal of the Exchange Debenture so surrendered,
provided, that each such new Exchange Debenture shall be in a principal amount
of $1,000 or integral multiple thereof.
ARTICLE TWELVE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Legal Defeasance or
Covenant Defeasance.
The Company and the Subsidiary Debentures Guarantors may, at
their option by Board Resolution, at any time, with respect to the Exchange
Debentures, elect to have either Section 1202 or Section 1203 be applied to all
Outstanding Exchange Debentures 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 Debentures
Guarantor shall be deemed to have been discharged from their obligations with
respect to all Outstanding Exchange Debentures 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
Subsidiary Debentures Guarantor shall be deemed to have paid and discharged the
entire Debt represented by the Outstanding Exchange Debentures, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 1205
and the other Sections of this Exchange Indenture referred to in (A) and (B)
below, and to have satisfied all its other obligations under such Exchange
Debentures and this Exchange Indenture insofar as such Exchange Debentures are
concerned (and the Debentures 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 Exchange Debentures to receive payments in
respect of the principal of (and premium, if any, on) and interest on such
Exchange Debentures when such payments are due, (B) the Company's obligations
to issue temporary Exchange Debentures, register the transfer or exchange of
any Exchange Debentures, replace mutilated, destroyed, lost or stolen Exchange
Debentures, maintain an office or agency for payments in respect of the
Exchange Debentures and segregate and hold such payments in trust, (C) the
rights, powers, trusts, duties and immunities of the Debentures Trustee and (D)
the defeasance provisions of this Exchange Indenture.
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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 Exchange
Debentures.
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 Exchange Debentures on and after
the date the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Exchange Debentures 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 Exchange Debentures shall not be
outstanding for accounting purposes). For this purpose, such Covenant
Defeasance means that, with respect to the Outstanding Exchange Debentures, 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 Exchange Indenture and such Exchange
Debentures 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 Exchange Debentures:
(a) the Company must irrevocably deposit or cause to be
deposited with the Debentures Trustee, as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Exchange Debentures, 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 Exchange Debentures 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
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(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 Exchange Indenture or any material agreement or instrument to
which the Company or any Subsidiary Debentures Guarantor is a party or
by which it is bound or cause the Debentures 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 Debentures 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 opinion must confirm that, the Holders of the
outstanding Exchange Debentures 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 Debentures Trustee an Opinion of Counsel to the
effect that the Holders of the Exchange Debentures 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 Debentures
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 Debentures Trustee (or other qualifying trustee,
collectively for purposes of this Section 1205, the "Debentures Trustee")
pursuant to Section 1204 in respect of the Outstanding Exchange Debentures
shall be held in trust and applied by the Debentures Trustee, in accordance
with the provisions of such Exchange Debentures and this Exchange Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Debentures Trustee may determine, to the
Holders of such Exchange Debentures of all
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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 Debentures 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
Exchange Debentures.
Anything in this Article Twelve to the contrary
notwithstanding, the Debentures 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 Debentures Trustee, are in
excess of the amount thereof which would then be 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 Debentures 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 Debentures
Guarantor's obligations under this Exchange Indenture, the Exchange Debentures
and the Subsidiary Debentures 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 Debentures 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 Debentures Guarantor makes any payment of
principal of (or premium, if any) or interest on any Exchange Debenture
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
Exchange Debentures to receive such payment from the money and U.S. Government
Obligations held by the Debentures Trustee or Paying Agent.
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ARTICLE THIRTEEN
SUBSIDIARY DEBENTURES GUARANTEES
SECTION 1301. Subsidiary Debentures Guarantees.
(a) Each Subsidiary Debentures Guarantor hereby, jointly
and severally, fully, absolutely, unconditionally and irrevocably guarantees to
each Holder of an Exchange Debenture authenticated and delivered by the
Debentures Trustee, and to the Debentures Trustee on behalf of each Holder, the
punctual payment and performance when due of all Indenture Obligations which,
for purposes of its Subsidiary Debentures 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 Debentures Trustee or the Holders in connection with the enforcement of
any Subsidiary Debentures Guarantee. Without limiting the generality of the
foregoing, each Subsidiary Debentures 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 Debentures Trustee under the Exchange
Debentures or this Exchange 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 Debentures 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 Debentures Guarantor
pursuant to its Subsidiary Debentures 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 Debentures Guarantor
hereby irrevocably agree that the obligations of such Subsidiary Debentures
Guarantor under its Subsidiary Debentures Guarantee shall be limited to the
maximum amount as shall, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Debentures Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Subsidiary
Debentures Guarantor in respect of the obligations of such other Subsidiary
Debentures Guarantor under its Subsidiary Debentures Guarantee or pursuant to
paragraph (c) of this Section 1301 result in the obligations of such Subsidiary
Debentures Guarantor under its Subsidiary Debentures 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 Debentures Guarantors, the Subsidiary
Debentures Guarantors agree, inter se, that in the event any payment or
distribution is made by any Subsidiary Debentures Guarantor (a "Funding
Guarantor") under its Subsidiary Debentures Guarantee, such Funding Guarantor
shall be entitled to a contribution from each other Subsidiary Debentures
Guarantor in a pro rata amount based on the Adjusted Net Assets of each
Subsidiary Debentures Guarantor (including
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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 Debentures Guarantor's obligations with respect to its
Subsidiary Debentures Guarantee. "Adjusted Net Assets" of such Subsidiary
Debentures Guarantor at any date shall mean the lesser of (x) the amount by
which the fair value of the property of such Subsidiary Debentures 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 Debentures Guarantee of such Subsidiary Debentures Guarantor at
such date and (y) the amount by which the present fair salable value of the
assets of such Subsidiary Debentures Guarantor at such date exceeds the amount
that shall be required to pay the probable liability of such Subsidiary
Debentures 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 Debentures Guarantee, as they become absolute and
matured.
SECTION 1302. Guaranty Absolute.
Each Subsidiary Debentures Guarantor guarantees that the
Exchange Debentures shall be paid or performed strictly in accordance with the
terms of the Exchange Debentures and this Exchange 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 Debentures Guarantor under its Subsidiary
Debentures Guarantee are independent of the obligations of the Company under
the Exchange Debentures and this Exchange Indenture, and a separate action or
actions may be brought and prosecuted against such Subsidiary Debentures
Guarantor to enforce its Subsidiary Debentures Guarantee, irrespective of
whether any action is brought against the Company or any other Subsidiary
Debentures Guarantor or whether the Company or any other Subsidiary Debentures
Guarantor is joined in any such action or actions. The liability of each
Subsidiary Debentures Guarantor under its Subsidiary Debentures Guarantee shall
be absolute and unconditional and the liability and obligations of such
Subsidiary Debentures 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
Exchange Indenture or the Exchange Debentures with respect to the
Company or any Subsidiary Debentures 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 Exchange Indenture, including any increase in the Indenture
Obligations resulting from the extension of additional credit to the
Company or otherwise;
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(c) the failure to give notice to the Subsidiary
Debentures Guarantor of the occurrence of a Default under the
provisions of this Exchange Indenture or the Exchange Debentures;
(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 Debentures Trustee or the Holders to assert or exercise
any right, power or remedy conferred on the Debentures Trustee or the
Holders in this Exchange Indenture or the Exchange Debentures;
(f) any change in the corporate structure, or
termination, dissolution, consolidation or merger of the Company or
any Subsidiary Debentures 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 Debentures Guarantor, the marshalling of the assets and
liabilities of the Company or any Subsidiary Debentures 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 Debentures Guarantor, or any of the
assets of any of them;
(g) the assignment of any right, title or interest of the
Debentures Trustee or any Holder in this Exchange Indenture or the
Exchange Debentures 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 or a
Subsidiary Debentures Guarantor, other than payment in full of the
Indenture Obligations; it being the intent of each Subsidiary
Debentures Guarantor that its obligations hereunder shall not be
discharged except by payment of all amounts owing pursuant to this
Exchange Indenture or the Exchange Debentures.
The Subsidiary Debentures Guarantee of each Subsidiary Debentures 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 Debentures Trustee upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, all as
though such payment had not been made. Each Subsidiary Debentures Guarantor
further agrees, to the fullest extent that it may lawfully do so, that, as
between such Subsidiary Debentures Guarantor, on the one hand, and the Holders
and the Debentures Trustee, on the other hand, (i) the maturity of the
obligations guaranteed hereby may be accelerated as
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provided in Article Five of this Exchange Indenture for the purposes of this
Subsidiary Debentures Guarantee, notwithstanding any stay, injunction or other
prohibition extant under any applicable bankruptcy law preventing such
acceleration in respect of the obligations guarantied hereby, and (ii) in the
event of any declarations of acceleration of such obligations as provided in
Article Five of this Exchange Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable by the Subsidiary
Debentures Guarantor for the purpose of this Subsidiary Debentures Guarantee.
SECTION 1303. Waivers.
(a) Each Subsidiary Debentures Guarantor hereby expressly
waives (to the extent permitted by law) notice of the acceptance of its
Subsidiary Debentures 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
Exchange Indenture or the Exchange Debentures or any other notice whatsoever to
or upon the Company or such Subsidiary Debentures Guarantor with respect to the
Indenture Obligations. Each Subsidiary Debentures Guarantor hereby
acknowledges communication to it of the terms of this Exchange Indenture and
the Exchange Debentures and all of the provisions herein contained and consents
to and approves the same. Each Subsidiary Debentures 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 Debentures Trustee or the Holders may have against the Company, each
Subsidiary Debentures Guarantor hereby expressly waives (to the extent
permitted by law) any right to require the Debentures Trustee or the Holders
to:
(1) initiate or exhaust any rights, remedies or recourse
against the Company, any Subsidiary Debentures Guarantor or any other
Person;
(2) value, realize upon, or dispose of any security of
the Company or any other Person held by the Debentures Trustee or the
Holders; or
(3) initiate or exhaust any other remedy which the
Debentures Trustee or the Holders may have in law or
equity;
before requiring, becoming entitled to or demanding payment from such
Subsidiary Debentures Guarantor under this Subsidiary Debentures Guarantee.
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SECTION 1304. Subrogation.
Each Subsidiary Debentures Guarantor shall not exercise any
rights that it may acquire by way of subrogation under this Subsidiary
Debentures 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 Debentures 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 Debentures Trustees and shall forthwith be paid to the Debentures 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 Debentures 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 Debentures 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
Debentures Guarantee and shall apply to and secure any ultimate balance due or
remaining unpaid to the Debentures Trustee or the Holders under this Exchange
Indenture or the Exchange Debentures; and this Subsidiary Debentures 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 Debentures Trustee or the Holders.
(b) Each Subsidiary Debentures Guarantor hereby
guarantees that the Indenture Obligations shall be paid to the Debentures
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.
(c) Each Subsidiary Debentures 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.
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(d) Each Subsidiary Debentures Guarantor's liability to
pay or perform or cause the performance of the Indenture Obligations under this
Subsidiary Debentures Guarantee shall arise forthwith after demand for payment
or performance by the Debentures Trustee has been given to such Subsidiary
Debentures Guarantor in the manner prescribed in this Exchange Indenture.
SECTION 1307. Subsidiary Debentures Guarantors May
Consolidate, Etc. on Certain Terms.
(a) Nothing contained in this Exchange Indenture or in
any of the Exchange Debentures shall prevent any consolidation or merger of a
Subsidiary Debentures Guarantor with or into the Company or another Subsidiary
Debentures Guarantor or shall prevent any sale or conveyance of the property of
a Subsidiary Debentures Guarantor as an entirety or substantially as an
entirety to the Company or another Subsidiary Debentures Guarantor, which
consolidation, merger, sale or conveyance is otherwise in accordance with the
terms of this Exchange Indenture.
(b) Other than as set forth in paragraph (a) of this
Section, no Subsidiary Debentures Guarantor may consolidate with or merge with
or into (whether or not such Subsidiary Debentures Guarantor is the surviving
Person) another Person whether or not affiliated with such Subsidiary
Debentures 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 Debentures Guarantor) assumes all of the obligations of such
Subsidiary Debentures Guarantor under this Exchange Indenture and its
Subsidiary Debentures Guarantee, pursuant to a supplemental indenture in form
and substance satisfactory to the Debentures 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 Debentures Guarantors.
The Company shall cause each Person that becomes a Wholly
Owned Restricted Subsidiary after the date of this Exchange Indenture to become
a Subsidiary Debentures Guarantor with respect to the Indenture Obligations by
executing and delivering a supplemental indenture to this Exchange Indenture
providing for a Subsidiary Debentures 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 Debentures 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 Debentures Trustee, together with the supplemental indenture referred to
above, an Opinion of Counsel that such Subsidiary Debentures Guarantee is a
legal, valid, binding and enforceable obligation of such Subsidiary
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Debentures 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 Debentures Guarantor with or into the Company or another Subsidiary
Debentures Guarantor or any sale or conveyance of the property of a Subsidiary
Debentures Guarantor as an entirety or substantially as an entirety to the
Company or another Subsidiary Debentures Guarantor, in each case as permitted
by Section 1307, and upon delivery by the Company to the Debentures 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 Debentures Guarantor in accordance with Section 1307, and (ii) all
conditions precedent to such release have been satisfied, the Debentures
Trustee shall promptly execute any documents reasonably required in order to
evidence the release of such Subsidiary Debentures Guarantor from its
obligations under its Subsidiary Debentures Guarantee. Any Subsidiary
Debentures Guarantor not released from its obligations under its Subsidiary
Debentures Guarantee under this Article Thirteen shall remain liable for the
full amount of the Indenture Obligations under its Subsidiary Debentures
Guarantee.
(b) Concurrently with the Legal Defeasance of the
Exchange Debentures under Section 1202 hereof or the Covenant Defeasance of the
Exchange Debentures under Section 1203 hereof, the Subsidiary Debentures
Guarantors shall be released from all of their obligations under their
Subsidiary Debentures Guarantees.
(c) Upon (i) the sale, transfer or other disposition of
all of the Capital Stock of a Subsidiary Debentures 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
Debentures Guarantor to a Person that is not an Affiliate of the Company, or
(iii) the designation of such Subsidiary Debentures Guarantor as an
Unrestricted Subsidiary, in any such case in compliance with the terms of this
Exchange Indenture, then such Subsidiary Debentures Guarantor shall be deemed
automatically and unconditionally released and discharged from all of its
obligations under its Subsidiary Debentures Guarantee without any further
action on the part of the Debentures Trustee or any Holder of the Exchange
Debentures; 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. Exchange Debentures and Subsidiary Debentures
Guarantees Subordinate to Senior Debt and Senior Subordinated Debt.
(a) The Company covenants and agrees, and each Holder of
an Exchange Debenture, 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 Exchange Debentures and
the payment of the principal of (or premium, if any) and interest on each and
all of the Exchange Debentures (but not amounts owing to the Debentures 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 and Senior Subordinated Debt.
(b) Each Subsidiary Debentures Guarantor covenants and
agrees, and each Holder of an Exchange Debenture, 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 Debentures Guarantee of such Subsidiary Debentures Guarantor is
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Subsidiary Guarantor Senior Debt and Subsidiary
Guarantor Senior Subordinated Debt of such Subsidiary Debentures 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 Debentures 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 Debentures Guarantor (the
Company or such Subsidiary Debentures 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 Debentures Guarantor, or its
liquidation or dissolution, not in violation of any provision of this Exchange
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 and Senior Subordinated 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 and Senior Subordinated Debt before
the Holders of the Exchange Debentures are entitled to receive any payment of
principal of (or premium, if any) or interest on the Exchange Debentures or on
account of the purchase or redemption or other acquisition of Exchange
Debentures by the Company or any Subsidiary of the Company and (ii) if the
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Affected Obligor is a Subsidiary Debentures Guarantor, the holders of
Subsidiary Guarantor Senior Debt and Subsidiary Guarantor Senior Subordinated
Debt of such Subsidiary Debentures Guarantor shall first be entitled to
receive payment in full, in cash or cash equivalents, of principal of (and
premium, if any) and interest on such Subsidiary Guarantor Senior Debt and
Subsidiary Guarantor Senior Subordinated Debt, before the Holders of the
Exchange Debentures are entitled to receive any payment pursuant to the
Subsidiary Debentures Guarantee of such Subsidiary Debentures Guarantor (any
payment on or purchase, redemption or acquisition of the Exchange Debentures,
referred to in clause (i), and any payment on a Subsidiary Debentures
Guarantee, referred to in clause (ii), being, individually and collectively, an
"Exchange Debentures Payment"), and, to that end, if the Affected Obligor is
the Company, the holders of Senior Debt and Senior Subordinated Debt and, if
the Affected Obligor is a Subsidiary Debentures Guarantor, the holders of
Subsidiary Guarantor Senior Debt and Subsidiary Guarantor Senior Subordinated
Debt of such Subsidiary Debentures Guarantor (such Senior Debt and Senior
Subordinated Debt or Subsidiary Guarantor Senior Debt and Subsidiary Guarantor
Senior Subordinated 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 Exchange Debentures in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section 1402, the Debentures Trustee or the Holder of any Exchange
Debenture 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
Debentures 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 Exchange
Debentures or Subsidiary Debentures Guarantees, as the case may be, are so
subordinated as provided in this Article Fourteen.
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SECTION 1403. No Payment When Certain Senior Debt and Senior
Subordinated Debt in Default.
In the event that any Senior Payment Default (as defined
below) shall have occurred and be continuing, then no Exchange Debentures
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 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 Debentures 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 Exchange Debentures 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 Debentures 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.
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In the event that, notwithstanding the foregoing, the Company
or any Subsidiary Debentures Guarantor shall make any payment to the Debentures
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.
SECTION 1404. Payment Permitted If No Default.
Nothing contained in this Article Fourteen or elsewhere in
this Exchange Indenture or in any of the Exchange Debentures 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 Debentures Guarantor from making Exchange Debentures Payments, or
(b) the application by the Debentures Trustee of any money deposited with it
hereunder to Exchange Debentures Payments or the retention of such payment by
the Holders.
SECTION 1405. Subrogation to Rights of Holders of Senior Debt
and Senior Subordinated Debt.
Subject to the payment in full of all Senior Debt and Senior
Subordinated Debt, the rights of the Holders of the Exchange Debentures shall
be subrogated to the rights of the holders of such Senior Debt and Senior
Subordinated Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt and Senior Subordinated Debt until the
principal of (and premium, if any) and interest on the Exchange Debentures
shall be paid in full. Subject to the payment in full of all Subsidiary
Guarantor Senior Debt and Subsidiary Guarantor Senior Subordinated Debt, the
rights of the Holders of the Exchange Debentures shall be subrogated to the
rights of the holders of such Subsidiary Guarantor Senior Debt and Subsidiary
Guarantor Senior Subordinated Debt to receive payments and distributions of
cash, property and securities applicable to such Subsidiary Guarantor Senior
Debt and Subsidiary Guarantor Senior Subordinated Debt until the principal of
(and premium, if any) and interest on the Exchange Debentures shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Debt and Senior Subordinated Debt or Subsidiary Guarantor
Senior Debt and Subsidiary Guarantor Senior Subordinated Debt of any cash,
property or securities to which the Holders of the Exchange Debentures or the
Debentures 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 and Senior Subordinated Debt or
Subsidiary Guarantor Senior Debt and Subsidiary Guarantor Senior Subordinated
Debt by Holders of the Exchange Debentures or the Debentures Trustee, shall, as
among the Company, its creditors other than holders of Senior Debt and Senior
Subordinated Debt and the Subsidiary Guarantor Senior Debt and Subsidiary
Guarantor Senior Subordinated Debt and the Holders of the Exchange Debentures,
be deemed to be a payment or distribution by the
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Company to or on account of the Senior Debt and Senior Subordinated Debt.
Neither the Holders of the Exchange Debentures nor the Debentures 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 Senior Subordinated Debt and
Subsidiary Guarantor Senior Debt and Subsidiary Guarantor Senior Subordinated
Debt on the other hand. Nothing contained in this Article Fourteen or
elsewhere in this Exchange Indenture or in the Exchange Debentures is intended
to or shall (a) impair, as among the Company, its creditors other than holders
of Senior Debt and Senior Subordinated Debt and the Holders of the Exchange
Debentures, 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 and Senior Subordinated Debt, is intended to rank equally with all
other general obligations of the Company) to pay to the Holders of the Exchange
Debentures the principal of (and premium, if any) and interest on the Exchange
Debentures as and when the same shall become due and payable in accordance with
their terms; or (b) impair, as among the Subsidiary Debentures Guarantors,
their creditors other than holders of Subsidiary Guarantor Senior Debt and
Subsidiary Guarantor Senior Subordinated Debt and the Holders of the Exchange
Debentures, the obligation of the Subsidiary Debentures Guarantors, which is
absolute and unconditional (and which, subject to the rights under this Article
Fourteen of the holders of Subsidiary Guarantor Senior Debt and Subsidiary
Guarantor Senior Subordinated Debt, is intended to rank equally with all other
general obligations of the Subsidiary Debentures Guarantors) to pay to the
Holders of the Exchange Debentures the principal of (and premium, if any) and
interest on the Exchange Debentures 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 Exchange Debentures and creditors of
the Company other than the holders of Senior Debt and Senior Subordinated Debt
or the relative rights against the Subsidiary Debentures Guarantors of the
Holders of the Exchange Debentures and creditors of the Subsidiary Debentures
Guarantors other than the Holders of Subsidiary Guarantor Senior Debt and
Subsidiary Guarantor Senior Subordinated Debt; or (d) prevent the Debentures
Trustee or the Holder of any Exchange Debenture from exercising all remedies
otherwise permitted by applicable law upon default under this Exchange
Indenture, subject to the rights, if any, under this Article Fourteen of the
holders of Senior Debt and Senior Subordinated Debt and Subsidiary Guarantor
Senior Debt and Subsidiary Guarantor Senior Subordinated Debt to receive cash,
property and securities otherwise payable or deliverable to the Debentures
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 Exchange Debentures and the Debentures Trustee.
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SECTION 1407. Debentures Trustee to Effectuate Subordination.
Each Holder of an Exchange Debenture by his acceptance thereof
authorizes and directs the Debentures 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 Debentures 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
and Senior Subordinated Debt or Subsidiary Guarantor Senior Debt and Subsidiary
Guarantor Senior Subordinated 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 Debentures 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 Debentures Guarantor with the
terms, provisions and covenants of this Exchange 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 and Senior Subordinated Debt or
Subsidiary Guarantor Senior Debt and Subsidiary Guarantor Senior Subordinated
Debt, as the case may be, may, at any time and from time to time, without the
consent of or notice to the Debentures Trustee or the Holders of the Exchange
Debentures, without incurring responsibility to the Debentures Trustee or the
Holders of the Exchange Debentures and without impairing or releasing the
subordination provided in this Article Fourteen or the obligations hereunder of
the Holders of the Exchange Debentures to the holders of Senior Debt and Senior
Subordinated Debt or Subsidiary Guarantor Senior Debt and Subsidiary Guarantor
Senior Subordinated 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 and Senior Subordinated Debt or
Subsidiary Guarantor Senior Debt and Subsidiary Guarantor Senior Subordinated
Debt, as the case may be, or otherwise amend or supplement in any manner Senior
Debt and Senior Subordinated Debt or Subsidiary Guarantor Senior Debt and
Subsidiary Guarantor Senior Subordinated Debt, as the case may be, or any
instrument evidencing the same or any agreement under which Senior Debt and
Senior Subordinated Debt or Subsidiary Guarantor Senior Debt and Subsidiary
Guarantor Senior Subordinated 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 and Senior Subordinated Debt or any
Subsidiary Guarantor Senior Debt and Subsidiary Guarantor Senior Subordinated
Debt, as the case may be; (iii) release any Person liable in any manner for the
collection of Senior Debt and Senior Subordinated Debt or any Subsidiary
Guarantor Senior Debt and Subsidiary Guarantor Senior Subordinated Debt, as the
case may be; and (iv) exercise or refrain from exercising any rights against
the Company or any Subsidiary Debentures Guarantor and any other Person.
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SECTION 1409. Notice to Debentures Trustee.
The Company and each Subsidiary Debentures Guarantor shall
give prompt written notice to the Debentures Trustee of any fact known to the
Company which would prohibit the making of any payment to or by the Debentures
Trustee in respect of the Exchange Debentures and of any subsequent cure or
waiver thereof. Notwithstanding the provisions of this Article Fourteen or any
other provision of this Exchange Indenture, the Debentures 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 Debentures Trustee in respect of the
Exchange Debentures, unless and until the Debentures Trustee shall have
received written notice thereof from the Company or a holder of Senior Debt and
Senior Subordinated Debt or a holder of Subsidiary Guarantor Senior Debt and
Subsidiary Guarantor Senior Subordinated Debt or from any trustee or agent
therefor; and, prior to the receipt of any such written notice, the Debentures
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 Debentures
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 and Senior
Subordinated Debt or a holder of Subsidiary Guarantor Senior Debt and
Subsidiary Guarantor Senior Subordinated Debt (or a trustee or agent therefor)
to establish that such notice has been given by a holder of Senior Debt and
Senior Subordinated Debt or a holder of Subsidiary Guarantor Senior Debt and
Subsidiary Guarantor Senior Subordinated Debt (or a trustee or agent therefor).
In the event that the Debentures Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Debt and Senior Subordinated Debt or a holder of Subsidiary Guarantor
Senior Debt and Subsidiary Guarantor Senior Subordinated Debt, as the case may
be, to participate in any payment or distribution pursuant to this Article
Fourteen, the Debentures Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Debentures Trustee as to the amount of
Senior Debt and Senior Subordinated Debt or Subsidiary Guarantor Senior Debt
and Subsidiary Guarantor Senior Subordinated 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
Debentures Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 1410. Reliance on Judicial Order or Certificate of
Liquidation Agent.
Upon any payment or distribution of assets of the Company or
any Subsidiary Debentures Guarantor referred to in this Article Fourteen, the
Debentures Trustee, subject to the provisions of Section 601, and the Holders
of the Exchange Debentures 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
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the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Debentures Trustee or to the Holders of Exchange
Debentures, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Debt and Senior
Subordinated Debt, Subsidiary Guarantor Senior Debt and Subsidiary Guarantor
Senior Subordinated Debt and other indebtedness of the Company and the
Subsidiary Debentures 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. Debentures Trustee Not Fiduciary for Holders of
Senior Debt and Senior Subordinated Debt.
Except to the extent of its obligations under the penultimate
paragraph of Section 1402 and the last paragraph of Section 1403, the
Debentures Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and Senior Subordinated Debt or Subsidiary Guarantor Senior Debt
and Subsidiary Guarantor Senior Subordinated Debt and shall not be liable to
any such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Exchange Debentures or to the Company or to any other Person cash,
property or securities to which any holders of Senior Debt and Senior
Subordinated Debt or Subsidiary Guarantor Senior Debt and Subsidiary Guarantor
Senior Subordinated Debt shall be entitled by virtue of this Article Fourteen
or otherwise. The Debentures Trustee's duties with respect to holders of
Senior Debt and Senior Subordinated Debt or Subsidiary Guarantor Senior Debt
and Subsidiary Guarantor Senior Subordinated Debt are limited to those
specifically set forth in this Exchange Indenture, and no implied covenants or
obligations shall be construed by any provision hereof.
SECTION 1412. Rights of Debentures Trustee as Holder of
Senior Debt and Senior Subordinated Debt; Preservation of Debentures Trustee's
Rights.
The Debentures Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Fourteen with respect to
any Senior Debt and Senior Subordinated Debt or Subsidiary Guarantor Senior
Debt and Subsidiary Guarantor Senior Subordinated Debt which may at any time be
held by it, to the same extent as any other holder of Senior Debt and Senior
Subordinated Debt or Subsidiary Guarantor Senior Debt and Subsidiary Guarantor
Senior Subordinated Debt, and nothing in this Exchange Indenture shall deprive
the Debentures Trustee of any of its rights as such holder.
Nothing in this Article Fourteen shall apply to claims of, or
payments to, the Debentures Trustee under or pursuant to Section 607.
SECTION 1413. Applicability to Paying Agents.
In case at any time any Paying Agent other than the Debentures
Trustee shall have been appointed by the Company and be then acting hereunder,
the term "Debentures Trustee"
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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 Debentures 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 Exchange Debentures and the
Subsidiary Debentures 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
Exchange Debentures and the Subsidiary Debentures 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
Exchange Indenture, to the extent that any provision contained in Articles One
(other than Section 101) through Thirteen of this Exchange Indenture conflicts
with any provision contained in Article Fourteen (including the definitions of
certain terms used in Article Fourteen) of this Exchange Indenture, the
provisions contained in Article Fourteen of this Exchange Indenture shall
govern and control.
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IN WITNESS WHEREOF, the parties hereto have caused this
Exchange Indenture to be duly executed as of the day and year first above
written.
CITADEL BROADCASTING COMPANY, a Nevada
corporation
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
CITADEL LICENSE, INC., as Guarantor
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
THE BANK OF NEW YORK,
as Debentures Trustee
By /s/ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President