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Exhibit 10.22
NOTES REGISTRATION RIGHTS AGREEMENT
THIS NOTES REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into as of July 3, 1997, among Citadel Broadcasting Company, a
Nevada corporation (the "Company"), Citadel License, Inc. (the "Subsidiary")
and Prudential Securities Incorporated, NationsBanc Capital Markets, Inc. and
BancBoston Securities Inc. (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated June 30, 1997 among the Company, Parent and the Initial Purchasers (the
"Purchase Agreement"), which provides for, in relevant part, the sale by the
Company to the Initial Purchasers of $100,000,000 aggregate principal amount of
the Company's 10-1/4% Senior Subordinated Notes due 2007 (the "Notes"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement,
each of the Company and the Subsidiary has agreed to provide to the Initial
Purchasers and their direct and indirect transferees and assigns the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree
as follows:
1. Definitions. As used in this Agreement, the
following capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble of
this Agreement and also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, provided, however, that any such
depositary must have an address in the Borough of Manhattan, in the City of New
York.
"Holders" shall mean the Initial Purchasers, for so long as
they own any Registrable Notes, and each of their successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Notes under the Indenture.
"Indenture" shall mean the Indenture relating to the Notes
dated as of July 1, 1997 among the Company and the Bank of New York, a New York
banking corporation and trust
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company, trustee, as the same may be amended from time to time in accordance
with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
"Majority Holders" shall mean the Holders of a majority of
the aggregate principal amount of outstanding Registrable Notes; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Company
or any of its affiliates (as such term is defined in Rule 405 under the 1933
Act) (other than the Initial Purchasers or subsequent holders of Registrable
Notes if such subsequent holders are deemed to be such affiliates solely by
reason of their holding of such Registrable Notes) shall be disregarded in
determining whether such consent or approval was given by the Holders of such
required percentage or amount.
"New Notes" shall mean 10-1/4% Senior Subordinated Notes due
2007 issued by the Company under the Indenture containing terms identical in
all respects to the Notes (except that (i) interest thereon shall accrue from
the last date on which interest was paid on the Notes or, if no such interest
has been paid, from July 3, 1997, (ii) the transfer restrictions thereon shall
be eliminated and (iii) certain provisions relating to an increase in the
stated rate of interest thereon shall be eliminated) to be offered to Holders
of Notes in exchange for New Notes pursuant to the Notes Exchange Offer.
"Notes Exchange Offer" shall mean the exchange offer by the
Company of Registrable Notes for New Notes pursuant to Section 2(a) hereof.
"Notes Exchange Offer Registration" shall mean a registration
under the 1933 Act effected pursuant to Section 2(a) hereof.
"Notes Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Notes Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of Section 2(b)
of this Agreement which covers all of the then Registrable Notes on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule that may
be adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Person" shall mean an individual, partnership, limited
liability company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
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"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Notes covered by a Notes Shelf Registration Statement, and
by all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
"Registrable Notes" shall mean the Notes; provided, however,
that the Notes shall cease to be Registrable Notes when (i) a Registration
Statement with respect to such Notes shall have been declared effective under
the 1933 Act and such Notes shall have been disposed of pursuant to such
Registration Statement, (ii) such Notes shall have been sold to the public
pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A)
under the 1933 Act, (iii) such Notes shall have ceased to be outstanding or (iv)
such Notes have been exchanged for New Notes upon consummation of the Notes
Exchange Offer.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company and the Subsidiary with
this Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. ("NASD") registration and
filing fees, (ii) all fees and expenses incurred in connection with compliance
with state or other securities or blue sky laws and compliance with the rules of
the NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with state or other securities or blue sky
qualification of any of the New Notes or Registrable Notes), (iii) all expenses
of any Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, certificates representing the New Notes and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Notes on any securities exchange or
exchanges, (vi) all fees and disbursements relating to the qualification of the
Indenture under applicable securities laws, (vii) the reasonable fees and
disbursements of counsel for the Company and, in the case of a Notes Shelf
Registration Statement, the reasonable fees and disbursements (including the
expenses of preparing and distributing any underwriting or securities sales
agreement) of one counsel (in addition to appropriate local counsel, if any) for
the Holders (which counsel shall be selected in writing by the Majority
Holders), (viii) the fees and expenses of the independent public accountants of
the Company, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, (ix) the
fees and expenses of a "qualified independent underwriter" as defined by Conduct
Rule 2720 of the NASD (if required by the NASD rules) in connection with the
offering of the Registrable Notes, (x) the fees and expenses of the trustee,
including its counsel, and any escrow agent or custodian and (xi) any reasonable
fees and disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the reasonable fees and expenses of any
special experts retained by the Company in connection with any Registration
Statement, but excluding underwriting discounts
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and commissions and transfer taxes, if any, relating to the sale or disposition
of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration
statement of the Company which covers any of the New Notes or Registrable Notes
pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Subsidiary" shall have the meaning set forth in the preamble
of this Agreement and also includes the Subsidiary's successors.
"Trustee" shall mean the trustee with respect to the Notes
under the Indenture.
2. Registration Under the 1933 Act. (a) Notes
Exchange Offer Registration. To the extent not prohibited by any applicable
law or applicable interpretation of the Staff of the SEC, the Company shall
(A) file on or prior to the 90th calendar day following the date hereof a Notes
Exchange Offer Registration Statement covering the offer by the Company to the
Holders to exchange all of the Registrable Notes for New Notes, (B) use its
best efforts to cause such Notes Exchange Offer Registration Statement to be
declared effective by the SEC on or prior to the 180th calendar day following
the date hereof, (C) use its best efforts to cause such Notes Exchange Offer
Registration Statement to remain effective until the closing of the Notes
Exchange Offer and (D) use its best efforts to consummate the Notes Exchange
Offer on or prior to the 210th calendar day following the date hereof. The New
Notes will be issued under the Indenture. Upon the effectiveness of the Notes
Exchange Offer Registration Statement, the Company shall promptly commence the
Notes Exchange Offer, it being the objective of such Notes Exchange Offer to
enable each Holder (other than Notes Participating Brokers (as defined in
Section 3(f) hereof)), eligible and electing to exchange Registrable Notes for
New Notes (assuming that such Holder is not an affiliate of the Company within
the meaning of Rule 405 under the 1933 Act, acquires the New Notes in the
ordinary course of such Holder's business and has no arrangements or
understandings with any Person to participate in the Notes Exchange Offer for
the purpose of distributing the New Notes) to trade such New Notes from and
after their receipt without any limitations or restrictions under the 1933 Act
and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
In connection with the Notes Exchange Offer, the Company
shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Notes Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents;
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(ii) keep the Notes Exchange Offer open for not less than
30 days and not more than 45 days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law);
(iii) use the services of the Depositary for the Notes
Exchange Offer with respect to Notes evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable
Notes at any time prior to the close of business, New York City time,
on the last business day on which the Notes Exchange Offer shall
remain open, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Notes
delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Notes exchanged; and
(v) otherwise comply in all respects with all applicable
laws relating to the Notes Exchange Offer.
As soon as practicable after the close of the Notes Exchange
Offer, the Company shall:
(i) accept for exchange Registrable Notes duly tendered
and not validly withdrawn pursuant to the Notes Exchange Offer in
accordance with the terms of the Notes Exchange Offer Registration
Statement and the letter of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee
for cancellation all Registrable Notes so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to authenticate and
deliver New Notes to each Holder of Registrable Notes equal in amount
to the Registrable Notes of such Holder so accepted for exchange.
Interest on each New Note will accrue from the last date on
which interest was paid on the Registrable Notes surrendered in exchange
therefor or, if no interest has been paid on the Registrable Notes, from July
3, 1997. The Notes Exchange Offer shall not be subject to any conditions,
other than that the Notes Exchange Offer, or the making of any exchange by a
Holder, does not violate applicable law or any applicable interpretation of the
Staff of the SEC. Each Holder of Registrable Notes (other than Notes
Participating Brokers) who wishes to exchange such Registrable Notes for New
Notes in the Notes Exchange Offer shall have represented that (i) any New Notes
to be received by it were acquired in the ordinary course of business, (ii) at
the time of the commencement of the Notes Exchange Offer it has no arrangement
with any Person to participate in the distribution (within the meaning of the
1933 Act) of the New Notes, (iii) it is not an affiliate (as defined in Rule 405
under the 1933 Act) of the Company, or if it is an affiliate it will comply with
the registration and prospectus delivery requirements of the 1933 Act to the
extent applicable and (iv) it is not acting on behalf of any Person who could
not make the representations in clauses (i) through (iii) above. The Company
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shall inform the Initial Purchasers of the names and addresses of the Holders to
whom the Notes Exchange Offer is made, and the Initial Purchasers shall have the
right to contact such Holders and otherwise facilitate the tender of Registrable
Notes in the Notes Exchange Offer.
(b) Shelf Registration. (i) If, because of any change
in law or applicable interpretations thereof by the Staff of the SEC, the
Company is not permitted to effect the Notes Exchange Offer as contemplated by
Section 2(a) hereof, or (ii) if for any other reason the Notes Exchange Offer
cannot be consummated within 210 days following the date hereof, or (iii) if
any Holder (other than an Initial Purchaser) is not eligible to participate in
the Notes Exchange Offer or (iv) upon the request of any Initial Purchaser
(with respect to any Registrable Notes which it acquired directly from the
Company) following the consummation of the Notes Exchange Offer if any such
Initial Purchaser shall hold Registrable Notes which it acquired directly from
the Company and if such Initial Purchaser is not permitted, in the reasonable
opinion of counsel to such Initial Purchaser, pursuant to applicable law or
applicable interpretation of the Staff of the SEC to participate in the Notes
Exchange Offer, the Company shall, at its cost:
(A) as promptly as practicable, and in any event within
90 days after the date on which such filing obligation arises, file
with the SEC a Notes Shelf Registration Statement relating to the
offer and sale of the then outstanding Registrable Notes by the
Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders of such Registrable Notes
and set forth in such Notes Shelf Registration Statement, and use its
best efforts to cause such Notes Shelf Registration Statement to be
declared effective by the SEC on or prior to 45 days after the date on
which such filing occurs (or promptly in the event of a request by any
Initial Purchaser pursuant to clause (iv) above). In the event that
the Company is required to file a Notes Shelf Registration Statement
upon the request of any Holder (other than an Initial Purchaser) not
eligible to participate in the Notes Exchange Offer pursuant to clause
(iii) above or upon the request of any Initial Purchaser pursuant to
clause (iv) above, the Company shall file and have declared effective
by the SEC both a Notes Exchange Offer Registration Statement pursuant
to Section 2(a) with respect to all Registrable Notes and a Notes
Shelf Registration Statement (which may be a combined Registration
Statement with the Notes Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Notes held by such Holder
or such Initial Purchaser after completion of the Notes Exchange
Offer;
(B) use its best efforts to keep the Notes Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period
of two years after its effective date (or one year from the date the
Notes Shelf Registration Statement is declared effective if such Notes
Shelf Registration Statement is filed upon the request of any Initial
Purchaser pursuant to clause (iv) above) or such shorter period which
will terminate when all of the Registrable Notes covered by the Notes
Shelf Registration Statement have been sold pursuant to the Notes Shelf
Registration Statement or all of the Registrable Notes become eligible
for resale pursuant to Rule 144 under the 1933 Act without volume
restrictions; and
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(C) notwithstanding any other provisions hereof, use its
best efforts to ensure that (i) any Notes Shelf Registration Statement
and any amendment thereto and any Prospectus forming a part thereof
and any supplement thereto complies in all material respects with the
1933 Act and the rules and regulations thereunder, (ii) any Notes
Shelf Registration Statement and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Notes Shelf Registration Statement, and
any supplement to such Prospectus (as amended or supplemented from
time to time), does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements, in light of the circumstances under which they were made,
not misleading.
The Company further agrees, if necessary, to supplement or
amend the Notes Shelf Registration Statement if reasonably requested by the
Majority Holders with respect to information relating to the Holders and
otherwise as required by Section 3(b) below, to use all reasonable efforts to
cause any such amendment to become effective and such Shelf Registration to
become usable as soon as practicable thereafter and to furnish to the Holders
of Registrable Notes copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) and 2(b).
Each Holder shall pay all expenses of its counsel other than as set forth in
the preceding sentence, underwriting discounts and commissions (prior to the
reduction thereof with respect to selling concessions, if any) and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Notes pursuant to the Notes Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company
will be deemed not to have used its best efforts to cause a Registration
Statement to become, or to remain, effective during the requisite period if the
Company voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable Notes
covered thereby not being able to exchange or offer and sell such Registrable
Notes during that period unless (A) such action is required by applicable law
or (B) such action is taken by the Company in good faith and for valid business
reasons (but not including avoidance of the Company#s obligations hereunder),
including a material corporate transaction, so long as the Company promptly
complies with the requirements of Section 3(k) hereof, if applicable.
(ii) A Notes Exchange Offer Registration Statement
pursuant to Section 2(a) hereof or a Notes Shelf Registration Statement pursuant
to Section 2(b) hereof will not be deemed to have become effective unless it has
been declared effective by the SEC; provided, however, that if, after it has
been declared effective, the offering of Registrable Notes pursuant to a
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Registration Statement
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will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Notes pursuant to such
Registration Statement may legally resume.
(e) Increase in Interest Rate. In the event that either
(i) the Notes Exchange Offer Registration Statement is not filed with the SEC
on or prior to the 90th day following the date hereof, (ii) the Notes Exchange
Offer is not consummated within 210 days following the date hereof or a Notes
Shelf Registration Statement with respect to the Registrable Notes is not
declared effective on or prior to the 210th day following the date hereof, or
(iii) either (A) the Notes Exchange Offer Registration Statement ceases to be
effective at any time prior to the time that the Notes Exchange Offer is
consummated or (B) if applicable, the Notes Shelf Registration Statement has
been declared effective and such Notes Shelf Registration Statement ceases to
be effective at any time prior to the second anniversary of its effective date,
the interest rate borne by the Notes shall be increased by one-quarter of one
percent per annum following such 90-day period in the case of clause (i) above,
following such 210-day period in the case of clause (ii) above, or immediately
in the case of clause (iii) above, which rate will be increased by an
additional one-quarter of one percent per annum for each 30-day period that any
such additional interest continues to accrue in the case of clause (i) above or
for each 90-day period that any such additional interest continues to accrue in
the case of clauses (ii) and (iii) above; provided that the aggregate increase
in such interest rate will in no event exceed one and one-half percent. Upon
(w) the filing of the Notes Exchange Offer Registration Statement after the
90-day period described in clause (i) above, (x) consummation of the Notes
Exchange Offer or the effectiveness of a Notes Shelf Registration Statement, as
the case may be, after the 210-day period described in clause (ii) above, or
(y) the effectiveness of the Notes Exchange Offer Registration Statement or the
Notes Shelf Registration Statement following an event described in clause (iii)
above, the interest rate borne by the Notes from the date of such filing,
effectiveness or consummation, as the case may be, will 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, a different event specified in clauses (i), (ii) or (iii) above occurs,
the interest rate will again be increased and thereafter reduced pursuant to
the foregoing conditions. If the Company issues a notice that the Notes Shelf
Registration Statement is unusable pending the announcement of a material
corporate transaction or otherwise pursuant to Section 3(k) hereof, or such a
notice is required under applicable securities laws to be issued by the
Company, and the aggregate number of days in any consecutive twelve-month
period for which all such notices are issued or required to be issued exceeds
30 days in the aggregate, then the interest rate borne by the Notes will be
increased by one-quarter of one percent per annum following the date that such
Notes Shelf Registration Statement ceases to be usable beyond the 30-day period
permitted above, which rate shall be increased by an additional one-quarter of
one percent per annum for each 90-day period that such additional interest
continues to accrue; provided that the aggregate increase in such annual
interest rate may in no event exceed one and one-half percent. Upon the Company
declaring that the Notes Shelf Registration Statement is usable after the
interest rate has been increased pursuant to the preceding sentence, the
interest rate borne by the Notes will be reduced to the original interest rate
if the Company is otherwise in compliance with this paragraph; provided,
however, that if after any such reduction in interest rate the Notes Shelf
Registration Statement again ceases to be usable beyond the period permitted
above, the interest rate will again be increased and thereafter reduced pursuant
to the foregoing provisions.
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(f) Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, each of the Company and
the Subsidiary acknowledges that any failure by each of the Company and the
Subsidiary to comply with its respective obligations under Sections 2(a) and
2(b) hereof may result in material irreparable injury to the Initial Purchasers
or the Holders for which there is no adequate remedy at law, that it will not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Sections 2(a) and 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Company and the Subsidiary with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration
Statement, within the time period specified in Section 2, on the
appropriate form under the 1933 Act, which form (i) shall be selected
by the Company, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Notes by the selling Holders
thereof and (iii) shall comply as to form in all material respects
with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC
to be filed therewith, and use its best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to (i) the Notes Exchange Offer Registration
Statement as may be necessary under applicable law to keep such Notes
Exchange Offer Registration Statement effective for the period
required to comply with Section 2(a) (except to the extent the Company
is unable to consummate the Notes Exchange Offer and the Company
complies with Section 2(b), subject in all respects to Section 3(f)
hereof), and (ii) the Notes Shelf Registration Statement as may be
necessary under applicable law to keep such Notes Shelf Registration
Statement effective for the period required pursuant to Section 2(b)
hereof; cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the 1933 Act; and comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by
each Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the selling
Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Registration Statement with respect to the
Registrable Notes is being Notes, at least ten days prior to filing,
that a Notes Shelf filed and advising such Holders that the
distribution of Registrable Notes will be made in accordance with the
method elected by the Majority Holders; and (ii) furnish to each Holder
of Registrable Notes, to counsel for the Initial Purchasers, to counsel
for the Holders and to each underwriter of an underwritten offering of
Registrable Notes, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
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supplement thereto and such other documents as such Holder or
underwriter may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits (including
those incorporated by reference) in order to facilitate the public
sale or other disposition of the Registrable Notes; and (iii) subject
to the last paragraph of Section 3, hereby consent to the use of the
Prospectus, including each preliminary Prospectus, or any amendment or
supplement thereto by each of the selling Holders of Registrable Notes
in connection with the offering and sale of the Registrable Notes
covered by the Prospectus or any amendment or supplement thereto;
(d) use its best efforts to register or qualify the
Registrable Notes under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Notes covered
by a Registration Statement and each underwriter of an underwritten
offering of Registrable Notes shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, to
cooperate with the Holders in connection with any filings required to
be made with the NASD, keep each such registration or qualification
effective during the period such Registration Statement is required to
be effective and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Notes
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d) or (ii) take any action
which would subject it to general service of process or taxation in
any such jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each
Holder of Registrable Notes and counsel for such Holders promptly and,
if requested by such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and
when any post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a
Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the closing of any sale
of Registrable Notes covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating
to such offering cease to be true and correct in all material respects,
(v) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Notes for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, (vi) of the happening of any event or the discovery
of any facts during the period a Notes Shelf Registration Statement is
effective which makes any statement made in such Notes Shelf
Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Notes Shelf
Registration Statement or Prospectus in order to make
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the statements therein not misleading and (vii) of any determination by
the Company that a post-effective amendment to a Registration Statement
would be appropriate;
(f) (A) in the case of the Notes Exchange Offer, (i)
include in the Notes Exchange Offer Registration Statement a "Plan of
Distribution" section covering the use of the Prospectus included in
the Notes Exchange Offer Registration Statement by broker-dealers who
have exchanged their Registrable Notes for New Notes for the resale of
such New Notes, (ii) furnish to each broker-dealer who desires to
participate in the Notes Exchange Offer, without charge, as many
copies of each Prospectus included in the Notes Exchange Offer
Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such broker-dealer may reasonably
request, (iii) include in the Notes Exchange Offer Registration
Statement a statement that any broker- dealer who holds Registrable
Notes acquired for its own account as a result of market- making
activities or other trading activities (a "Notes Participating
Broker"), and who receives New Notes for Registrable Notes pursuant to
the Notes Exchange Offer, may be a statutory underwriter and must
deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such New Notes, (iv) subject to the last
paragraph of Section 3, hereby consent to the use of the Prospectus
forming part of the Notes Exchange Offer Registration Statement or any
amendment or supplement thereto, by any broker-dealer in connection
with the sale or transfer of the New Notes covered by the Prospectus
or any amendment or supplement thereto, and (v) include in the
transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Notes Exchange Offer
(x) the following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of New Notes. If the undersigned
is a broker-dealer that will receive New Notes for its own
account in exchange for Registrable Notes, it represents that
the Registrable Notes to be exchanged for New Notes were
acquired by it as a result of market-making activities or
other trading activities and acknowledges that it will
deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of such New Notes pursuant to
the Notes Exchange Offer; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of
the 1933 Act";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (x) and by delivering a
Prospectus in connection with the exchange of Registrable Notes, the
broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the 1933 Act; and
(B) to the extent any Notes Participating
Broker participates in the Notes Exchange Offer, the Company shall use
its best efforts to cause to be delivered at the request of an entity
representing the Notes Participating Brokers (which entity shall be
one of the Initial Purchasers, unless it elects not to act as such
representative) only one, if any, "cold comfort" letter with respect
to the Prospectus in the form existing on the last
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date for which exchanges are accepted pursuant to the Notes Exchange
Offer and with respect to each subsequent amendment or supplement, if
any, effected during the period specified in clause (C) below; and
(C) to the extent any Notes Participating
Broker participates in the Notes Exchange Offer, the Company shall use
its best efforts to maintain the effectiveness of the Notes Exchange
Offer Registration Statement for a period of 120 days following the
closing of the Notes Exchange Offer; and
(D) the Company shall not be required to amend
or supplement the Prospectus contained in the Notes Exchange Offer
Registration Statement as would otherwise be contemplated by
Section 3(b), or take any other action as a result of this
Section 3(f), for a period exceeding 120 days after the last date for
which exchanges are accepted pursuant to the Notes Exchange Offer (as
such period may be extended by the Company) and Notes Participating
Brokers shall not be authorized by the Company to, and shall not,
deliver such Prospectus after such period in connection with resales
contemplated by this Section 3;
(g) (A) in the case of a Notes Exchange Offer, furnish
counsel for the Initial Purchasers and (B) in the case of a Shelf
Registration, furnish counsel for the Holders of Registrable Notes
copies of any request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and Prospectus
or for additional information;
(h) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement as soon as practicable and provide immediate notice to each
Holder of the withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Notes, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Notes to facilitate the timely
preparation and delivery of certificates representing Registrable
Notes to be sold and not bearing any restrictive legends; and cause
such Registrable Notes to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the
selling Holders or the underwriters, if any, may reasonably request at
least one business day prior to the closing of any sale of Registrable
Notes;
(k) in the case of a Shelf Registration, upon the
occurrence of any event or the discovery of any facts, each as
contemplated by Section 3(e)(vi) hereof, use its best efforts to
prepare a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the
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Registrable Notes, such Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until the Company
has amended or supplemented the Prospectus to correct such misstatement
or omission. At such time as such public disclosure is otherwise made
or the Company determines that such disclosure is not necessary, in
each case to correct any misstatement of a material fact or to include
any omitted material fact, the Company agrees promptly to notify each
Holder of such determination and to furnish each Holder such numbers of
copies of the Prospectus, as amended or supplemented, as such Holder
may reasonably request;
(l) obtain a CUSIP number for all New Notes, or
Registrable Notes, as the case may be, not later than the effective
date of a Registration Statement, and provide the Trustee with printed
certificates for the New Notes or the Registrable Notes, as the case
may be, in a form eligible for deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), in connection
with the registration of the New Notes, or Registrable Notes, as the
case may be, (ii) cooperate with the Trustee and the Holders to effect
such changes to the Indenture as may be required for the Indenture to
be so qualified in accordance with the terms of the TIA and
(iii) execute, and use its best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into
agreements (including underwriting agreements) and take all other
customary and appropriate actions (including those reasonably
requested by the Majority Holders) in order to expedite or facilitate
the disposition of such Registrable Notes and in such connection
whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration:
(i) make such representations and warranties to
the Holders of such Registrable Notes and the underwriters, if
any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as
may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company
and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and the holders of a majority
in principal amount of the Registrable Notes being sold)
addressed to each selling Holder and the underwriters, if
any, covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings;
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(iii) obtain "cold comfort" letters and updates
thereof from the Company's independent certified public
accountants addressed to the underwriters, if any, and will
use best efforts to have such letters addressed to the
selling Holders of Registrable Notes, such letters to be in
customary form and covering matters of the type customarily
covered in "cold comfort" letters to underwriters in
connection with similar underwritten offerings;
(iv) enter into a securities sales agreement
with the Holders and an agent of the Holders providing for,
among other things, the appointment of such agent for the
selling Holders for the purpose of soliciting purchases of
Registrable Notes, which agreement shall be in form,
substance and scope customary for similar offerings; and
(v) deliver such documents and certificates as
may be reasonably requested and as are customarily delivered
in similar offerings.
The above shall be done at (i) the effectiveness of such Notes Shelf
Registration Statement (and, if appropriate, each post-effective
amendment thereto) and (ii) each closing under any underwriting or
similar agreement as and to the extent required thereunder. In the
case of any underwritten offering, the Company shall provide written
notice to the Holders of all Registrable Notes of such underwritten
offering at least 30 days prior to the filing of a prospectus
supplement for such underwritten offering. Such notice shall (x)
offer each such Holder the right to participate in such underwritten
offering, (y) specify a date, which shall be no earlier than 10 days
following the date of such notice, by which such Holder must inform
the Company of its intent to participate in such underwritten offering
and (z) include the instructions such Holder must follow in order to
participate in such underwritten offering;
(o) in the case of a Shelf Registration, make available
for inspection by representatives of the Holders of the Registrable
Notes and any underwriters participating in any disposition pursuant to
a Notes Shelf Registration Statement and any counsel or accountant
retained by such Holders or underwriters, at reasonable times and in a
reasonable manner, all financial and other records, pertinent corporate
documents and properties of the Company reasonably requested by any
such Persons, and cause the respective officers, directors, employees,
and any other agents of the Company to supply all information
reasonably requested by any such representative, underwriter, special
counsel or accountant in connection with such Notes Shelf Registration
Statement; provided, however, that such Persons shall first agree in
writing with the Company that any information that is reasonably and in
good faith designated by the Company in writing as confidential at the
time of delivery of such information shall be kept confidential by such
Persons, unless (i) disclosure of such information is required by court
or administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is required
by law (including any disclosure requirements pursuant to Federal
securities laws in connection with the filing of such Notes Shelf
Registration Statement or the use of any Prospectus), (iii) such
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information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard such information by such
Person or (iv) such information becomes available to such Person from a
source other than the Company and its subsidiaries and such source is
not bound by a confidentiality agreement; provided, further, that the
foregoing investigation shall be coordinated on behalf of the Holders
by one representative designated by and on behalf of such Holders and
any such confidential information shall be available from such
representative to such Holders so long as any Holder agrees to be bound
by such confidentiality agreement;
(p) (i) a reasonable time prior to the filing of any
Notes Exchange Offer Registration Statement, any Prospectus forming a
part thereof, any amendment to a Notes Exchange Offer Registration
Statement or amendment or supplement to a Prospectus, provide copies
of such document to the Initial Purchasers, and make such changes in
any such document prior to the filing thereof as any of the Initial
Purchasers or their counsel may reasonably request; (ii) in the case
of a Shelf Registration, a reasonable time prior to filing any Notes
Shelf Registration Statement, any Prospectus forming a part thereof,
any amendment to such Notes Shelf Registration Statement or amendment
or supplement to such Prospectus, provide copies of such document to
the Holders of Registrable Notes, to the Initial Purchasers, to
counsel on behalf of the Holders and to the underwriter or
underwriters of an underwritten offering of Registrable Notes, if any,
and make such changes in any such document prior to the filing thereof
as the Holders of Registrable Notes, the Initial Purchasers on behalf
of such Holders, their counsel and any underwriter may reasonably
request; and (iii) cause the representatives of the Company to be
available for discussion of such document as shall be reasonably
requested by the Holders of Registrable Notes, the Initial Purchasers
on behalf of such Holders or any underwriter and shall not at any time
make any filing of any such document of which such Holders, the
Initial Purchasers on behalf of such Holders, their counsel or any
underwriter shall not have previously been advised and furnished a
copy or to which such Holders, the Initial Purchasers on behalf of
such Holders, their counsel or any underwriter shall reasonably
object, each of which actions in this clause (iii) by the Holders
shall be coordinated by one representative for all the Holders at
reasonable times and in a reasonable manner;
(q) in the case of a Shelf Registration, use its best
efforts to cause all Registrable Notes to be listed on any securities
exchange on which similar debt securities issued by the Company are
then listed if requested by the Majority Holders or by the underwriter
or underwriters of an underwritten offering of Registrable Notes, if
any;
(r) in the case of a Shelf Registration, unless the
rating in effect for the Notes applies to the New Notes and the Notes
to be sold pursuant to a Shelf Registration, use its best efforts to
cause the Registrable Notes to be rated with the appropriate rating
agencies, if so requested by the Majority Holders or by the
underwriter or underwriters of an underwritten offering of Registrable
Notes, if any, unless the Registrable Notes are already so rated;
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(s) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
and
(t) cooperate and assist in any filings required to be
made with the NASD.
In the case of a Notes Shelf Registration Statement, the
Company may (as a condition to such Holder's participation in the Shelf
Registration) require each Holder of Registrable Notes to furnish to the
Company such information regarding such Holder and the proposed distribution by
such Holder of such Registrable Notes and make such representations, in each
case, as the Company may from time to time reasonably request in writing.
In the case of a Notes Shelf Registration Statement, each
Holder agrees that, upon receipt of any notice from the Company of the
happening of any event or the discovery of any facts, each of the kind
described in Section 3(e)(ii)-(vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Notes pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(k) hereof, and, if so directed by
the Company, such Holder will deliver to the Company (at its expense) all
copies in its possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Notes current
at the time of receipt of such notice. If the Company shall give any such
notice to suspend the disposition of Registrable Notes pursuant to a Notes
Shelf Registration Statement as a result of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(vi) hereof,
the Company shall be deemed to have used its best efforts to keep the Notes
Shelf Registration Statement effective during such period of suspension
provided that the Company shall use its best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement
to the Notes Shelf Registration Statement and shall extend the period during
which the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date
of the giving of such notice to and including the date when the Holders shall
have received copies of the supplemented or amended Prospectus necessary to
resume such dispositions.
4. Underwritten Registrations. If any of the
Registrable Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Majority
Holders of such Registrable Notes included in such offering and shall be
reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
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5. Indemnification and Contribution. (a) Each of the
Company and the Subsidiary agrees to indemnify and hold harmless each Holder
and each Person, if any, who controls any Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act against any losses, claims,
damages or liabilities, joint or several, to which such Holder or such
controlling Person may become subject under the 1933 Act, the 1934 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of
any material fact contained in (A) any Registration Statement or
Prospectus or any amendments or supplements thereto or (B) any
application or other document, or any amendments or supplements
thereto, executed by the Company or the Subsidiary or based upon
written information furnished by or on behalf of the Company or the
Subsidiary filed in any jurisdiction in order to qualify the
Securities under the securities or blue sky laws thereof or filed with
the SEC or any securities association or securities exchange (each an
"Application") or
(ii) the omission or alleged omission to state in any
Registration Statement or Prospectus or any amendment or supplement
thereto, or any Application a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse, as incurred, each Holder and each such controlling Person
for any legal or other expenses reasonably incurred by such Holder or such
controlling Person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company and the
Subsidiary will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Registration Statement or Prospectus or any amendment or supplement thereto
or any Application in reliance upon and in conformity with written information
relating to any Holder furnished to the Company by any Holder specifically for
use therein. This indemnity agreement will be in addition to any liability
which the Company and the Subsidiary may otherwise have. The Company will not,
without the prior written consent of each Holder, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not any Holder or any Person who controls any such Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
is a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of all of such Holder
and such controlling Persons from all liability arising out of such claim,
action, suit or proceeding.
(b) Each Holder, severally and not jointly, agrees to
indemnify and hold harmless each of the Company and the Subsidiary, each of
their respective directors, each of their respective executive officers and
each Person, if any, who controls the Company or the Subsidiary within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
losses, claims, damages or liabilities to which the Company, the Subsidiary or
any
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such director, officer or controlling Person may become subject under the
1933 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement or Prospectus or any amendment or supplement thereto or
any Application or (ii) the omission or alleged omission to state therein a
material fact required to be stated in any Registration Statement or Prospectus
or any amendment or supplement thereto, or any Application or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information relating to any Holder furnished to the Company by such Holder
specifically for use therein; and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Company, the Subsidiary or any such
director, officer or controlling Person in connection with investigating or
defending any such loss, claim, damage, liability or any action in respect
thereof. This indemnity agreement will be in addition to any liability which
such Holder may otherwise have. The Holders will not, without the prior
written consent of the Company or the Subsidiary, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceedings in respect of which indemnification may be sought
hereunder (whether or not the Company, the Subsidiary or any person who
controls the Company or the Subsidiary within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act is a party to such claim, action, suit
or proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Company, the Subsidiary and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
(c) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 5, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 5. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel approved by such indemnified party (which approval will not be
unreasonably withheld); provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such action
on behalf of such indemnified party or parties and such indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election to assume the defense thereof
and approval by such indemnified party of counsel appointed to defend such
action (which approval will not be unreasonably withheld), the indemnifying
party will not be liable to such indemnified party under this Section 5 for any
legal or other expenses, other than reasonable costs of investigation,
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subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel, if any) in any one action or separate but
substantially similar actions in the same jurisdiction arising out of the same
general allegations or circumstances, designated by such Holder in the case of
paragraph (a) of this Section 5, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel approved by the indemnified
party (which approval will not be unreasonably withheld) or (iii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the written consent of the
indemnifying party.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 5 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
(i) the relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party on the other from the offering of the
Securities or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
or alleged statements or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Subsidiary on the one hand and such Holder on the other shall
be deemed to be in the same proportion as the total proceeds from the offering
(before deducting expenses) received by the Company and the Subsidiary bear to
the total underwriting discounts and commissions received by such Holder. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or such Holder, the parties' relative intents,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in the
circumstances. The Company and the Subsidiary, on the one hand, and each Holder
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to above in this paragraph (d). Notwithstanding any other provision of this
paragraph (d), no Holder shall be obligated to make contributions hereunder that
in the aggregate exceed the total offering price of the Securities purchased by
such Holder, less the aggregate amount of any damages that such Holder has
otherwise been required to pay in respect of the same or any substantially
similar claim, and no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f)
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of the 1933 Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. For purposes of this paragraph
(d), each Person, if any, who controls a Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Holder, and each director of the Company or the Subsidiary,
each officer of the Company or the Subsidiary who signed the Registration
Statement and each Person, if any, who controls the Company or the Subsidiary
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
shall have the same rights to contribution as the Company and the Subsidiary.
(e) The parties to this Agreement hereby acknowledge
that they are sophisticated business Persons who were represented by counsel
during the negotiations regarding the provisions of this Agreement, including,
without limitation, the provisions of this Section 5, and are fully informed
regarding said provisions. They further acknowledge that the provisions of
this Section 5 fairly allocate the risks in light of the ability of the parties
to investigate each of the Company and the Subsidiary and its business in order
to assure that adequate disclosure is made in the Offering Memorandum as
required by the 1933 Act.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so
long as the Company is subject to the reporting requirements of Section 13 or
15 of the 1934 Act, the Company covenants that it will file the reports
required to be filed by it under Section 13(a) or 15(d) of the 1934 Act and the
rules and regulations adopted by the SEC thereunder, that if it ceases to be so
required to file such reports, it will upon the request of any Holder of
Registrable Notes (i) make publicly available such information as is necessary
to permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the 1933 Act and it will take such further action as any
Holder of Registrable Notes may reasonably request, and (iii) take such further
action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable Notes
without registration under the 1933 Act within the limitation of the exemptions
provided by (x) Rule 144 under the 1933 Act, as such Rule may be amended from
time to time, (y) Rule 144A under the 1933 Act, as such Rule may be amended
from time to time, or (z) any similar rules or regulations hereafter adopted by
the SEC. Upon the request of any Holder of Registrable Notes, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
(b) No Inconsistent Agreements. Neither the Company nor
the Subsidiary has entered into nor will the Company or the Subsidiary on or
after the date of this Agreement enter into any agreement which is inconsistent
with the rights granted to the Holders of Registrable Notes in this Agreement
or otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has
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obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Notes affected by such
amendment, modification, supplement, waiver or departure; provided, however,
that no amendment, modification, supplement or waiver or consent to any
departure from the provisions of Section 5 hereof shall be effective as against
any Holder of Registrable Notes unless consented to in writing by such Holder.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder (other than an Initial Purchaser), at the most
current address set forth on the records of the Registrar under the Indenture,
(ii) if to an Initial Purchaser, at the most current address given by such
Initial Purchaser to the Company by means of a notice given in accordance with
the provisions of this Section 6(d), which address initially is the address set
forth in the Purchase Agreement; and (iii) if to the Company or the Subsidiary,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(d).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged, if telecopied; and on the next business day if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee,
at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and transferees
of each of the parties, including, without limitation and without the need for
an express assignment, subsequent Holders; provided that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of
Registrable Notes in violation of the terms hereof or of the Purchase Agreement
or the Indenture. If any transferee of any Holder shall acquire Registrable
Notes, in any manner, whether by operation of law or otherwise, such Registrable
Notes shall be held subject to all of the terms of this Agreement, and by taking
and holding such Registrable Notes, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. The Holders shall be third
party beneficiaries to the agreements made hereunder between the Company and
the Subsidiary, on the one hand, and the Initial Purchasers, on the other hand,
and shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
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(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE.
(j) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CITADEL BROADCASTING COMPANY
By: /s/ Lawrence R. Wilson
--------------------------
Name: Lawrence R. Wilson
Title: President
CITADEL LICENSE, INC.
By: /s/ Lawrence R. Wilson
---------------------------
Name: Lawrence R. Wilson
Title: President
Confirmed and accepted as of
the date first above written:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Benjamin Shapiro
-------------------------
Authorized Signatory
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Stuart B. Gleichenhaus
--------------------------
Authorized Signatory
Stuart B. Gleichenhaus
Managing Director
BANCBOSTON SECURITIES INC.
By: /s/ David Weinstein
--------------------------
Authorized Signatory