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Exhibit 10.31
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of November 19, 1998, among Citadel Broadcasting Company, a
Nevada corporation (the "Company"), Citadel License, Inc. (the "Subsidiary") and
Prudential Securities Incorporated and BT Alex. Brown Incorporated
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated November 12, 1998 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 $115,000,000 aggregate principal amount
of the Company's 9-1/4% Senior Subordinated Notes due 2008 (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.
"Exchange Offer" shall mean the exchange offer by the Company
of Registrable Notes for New Notes pursuant to Section 2(a) hereof.
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"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2(a) hereof.
"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.
"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 November 19, 1998 among the Company and The Bank of New York, a New
York banking corporation and trust 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 9-1/4% Senior Subordinated Notes due
2008 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 November 19, 1998, (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 Exchange Offer.
"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
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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.
"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 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
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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 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) 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 an 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 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 Exchange Offer Registration Statement to remain
effective until the closing of the Exchange Offer and (D) use its best efforts
to consummate the 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 Exchange Offer Registration Statement, the Company shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder (other than Notes Participating Brokers (as defined
in Section 3(f)(A) hereof)), eligible and electing to exchange Registrable Notes
for New Notes (assuming that such Holder is not an
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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 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 Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the 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 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 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 Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange Registrable Notes duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with
the terms of the 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.
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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
November 19, 1998. The Exchange Offer shall not be subject to any conditions,
other than that the 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 as defined in Section 3(f)(A) hereof) who wishes to exchange such
Registrable Notes for New Notes in the 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 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 shall inform the Initial Purchasers of the names and
addresses of the Holders to whom the 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 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 Exchange Offer as contemplated by Section 2(a)
hereof, or (ii) if for any other reason the 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 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
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 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
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 an Exchange Offer
Registration Statement pursuant to Section
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2(a) with respect to all Registrable Notes and a Notes Shelf
Registration Statement (which may be a combined Registration
Statement with the 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 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
(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 Sections 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.
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(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) An 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 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 Exchange Offer Registration Statement is not filed with the SEC on or prior
to the 90th day following the date hereof, (ii) the 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 Exchange Offer Registration Statement ceases to be effective at
any time prior to the time that the 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
Exchange Offer Registration Statement after the 90-day period described in
clause (i) above, (x) consummation of the 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 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
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specified in clause (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.
(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;
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(b) prepare and file with the SEC such amendments and
post-effective amendments to (i) the Exchange Offer Registration
Statement as may be necessary under applicable law to keep such
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 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 Notes, at least ten days prior to filing, that a
Notes Shelf Registration Statement with respect to the Registrable
Notes is being 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, counsel for the Initial Purchasers, counsel for the Holders and
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 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;
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(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 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 Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the 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
Exchange Offer, without charge, as many copies of each Prospectus
included in the 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
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 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 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 Exchange Offer (x) the
following provision:
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"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
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 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 date for which exchanges are accepted
pursuant to the 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 Exchange Offer, the Company shall use its best efforts to
maintain the effectiveness of the Exchange Offer Registration Statement
for a period of 120 days following the closing of the Exchange Offer;
and
(D) the Company shall not be required to amend or supplement
the Prospectus contained in the 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 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 an 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;
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(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 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;
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(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;
(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
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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
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 Exchange
Offer Registration Statement, any Prospectus forming a part thereof, any
amendment to a 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
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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;
(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
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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.
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
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(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 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,
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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, 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.
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(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) 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.
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(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 Waiver. 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 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.
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(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.
(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.
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(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.
(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:
CITADEL LICENSE, INC.
By /s/ Lawrence R. Wilson
-------------------------
Name: Lawrence R. Wilson
Title:
PRUDENTIAL SECURITIES INCORPORATED
By /s/ Peter Horan
------------------------
Name: Peter Horan
Title: Managing Director
BT ALEX. BROWN INCORPORATED
By /s/ David Jacobs
----------------------
Name: David Jacobs
Title: