<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 10, 1999
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
CITADEL COMMUNICATIONS CORPORATION
CITADEL BROADCASTING COMPANY
CCC CAPITAL TRUST I
CCC CAPITAL TRUST II
(Exact name of each registrant as specified in its charter)
<TABLE>
<S> <C>
NEVADA 86-0748219
NEVADA 86-0703641
DELAWARE TO BE APPLIED FOR
DELAWARE TO BE APPLIED FOR
(State or other jurisdiction of incorporation or (IRS employer identification numbers)
organization)
</TABLE>
CITY CENTER WEST, SUITE 400
7201 WEST LAKE MEAD BOULEVARD
LAS VEGAS, NEVADA 89128
(702) 804-5200
(Address, including zip code, and telephone number, including area code, of
registrants' principal executive offices)
------------------------
LAWRENCE R. WILSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CITY CENTER WEST, SUITE 400
7201 WEST LAKE MEAD BOULEVARD
LAS VEGAS, NEVADA 89128
(702) 804-5200
(Name, address, including zip code, and telephone number, including area code,
of agent for service of each registrant)
------------------------
WITH COPIES TO:
<TABLE>
<S> <C>
BRYAN D. ROSENBERGER, ESQ. DANIELLE CARBONE, ESQ.
ECKERT SEAMANS CHERIN & MELLOTT, LLC SHEARMAN & STERLING
44TH FLOOR, 600 GRANT STREET 599 LEXINGTON AVENUE
PITTSBURGH, PENNSYLVANIA 15219 NEW YORK, NEW YORK 10022
(412) 566-6000 (212) 848-4000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME
TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<TABLE>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE OFFERING
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(1) PRICE(1)
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<S> <C> <C> <C>
PRIMARY OFFERING:
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Debt securities of Citadel Communications(3)(6)
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Preferred securities of Citadel Communications(4)(6)
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Common stock of Citadel Communications(5)(6)
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Warrants of Citadel Communications(7)
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Stock purchase contracts and stock purchase units of
Citadel Communications(8) (2) (2) (2)
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CCC Capital Trust preferred securities(9)
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Guarantees of Citadel Communications with respect to CCC
Capital Trust preferred securities(10)
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Junior subordinated debt securities of Citadel
Broadcasting(11)
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Guarantees of Citadel Communications with respect to
Citadel Broadcasting junior subordinated debt securities
- ------------------------------------------------------------
SECONDARY OFFERING:
- ------------------------------------------------------------
Common stock of Citadel Communications(12)
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Total $1,000,000,000(13) 100% $1,000,000,000(13)
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TITLE OF EACH CLASS OF AMOUNT OF
SECURITIES TO BE REGISTERED REGISTRATION FEE
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<S> <C>
PRIMARY OFFERING:
- ------------------------------------------------------------
Debt securities of Citadel Communications(3)(6)
- ------------------------------------------------------------
Preferred securities of Citadel Communications(4)(6)
- ------------------------------------------------------------
Common stock of Citadel Communications(5)(6)
- ------------------------------------------------------------
Warrants of Citadel Communications(7)
- ------------------------------------------------------------
Stock purchase contracts and stock purchase units of
Citadel Communications(8)
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CCC Capital Trust preferred securities(9)
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Guarantees of Citadel Communications with respect to CCC
Capital Trust preferred securities(10)
- ------------------------------------------------------------
Junior subordinated debt securities of Citadel
Broadcasting(11)
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Guarantees of Citadel Communications with respect to
Citadel Broadcasting junior subordinated debt securities
- ------------------------------------------------------------
SECONDARY OFFERING:
- ------------------------------------------------------------
Common stock of Citadel Communications(12)
- ------------------------------------------------------------
Total $264,000
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</TABLE>
(Footnotes on next page)
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
(1) The registrants will determine the proposed maximum offering price per unit
from time to time in connection with issuances of securities registered
hereunder. The proposed maximum aggregate offering price has been estimated
solely for the purpose of calculating the registration fee pursuant to Rule
457 under the Securities Act.
(2) Not applicable pursuant to General Instruction II.D of Form S-3.
(3) Subject to note (13) below, there is being registered hereunder an
indeterminate principal amount of debt securities or junior subordinated
debt securities of Citadel Communications as may be offered or sold, from
time to time by Citadel Communications. If any debt securities or junior
subordinated debt securities are issued at an original issue discount, then
the offering price shall be in such greater principal amount as shall
result in an aggregate initial offering price not to exceed $1,000,000,000.
(4) Subject to note (13) below, there is being registered hereunder an
indeterminate number of shares of preferred stock of Citadel Communications
as may be sold from time to time by Citadel Communications.
(5) Subject to note (13) below, there is being registered hereunder an
indeterminate number of shares of common stock of Citadel Communications as
may be sold from time to time by Citadel Communications.
(6) Subject to note (13) below, includes such indeterminate amount of debt
securities, junior subordinated debt securities, preferred stock and common
stock of Citadel Communications as may be issued upon conversion or
exchange for any other securities registered hereunder that provide for
conversion or exchange into debt securities, junior subordinated debt
securities, preferred stock or common stock of Citadel Communications.
(7) Subject to note (13) below, there is being registered hereunder an
indeterminate amount and number of warrants of Citadel Communications
representing rights to purchase certain of the debt securities, preferred
stock or common stock of Citadel Communications registered hereunder.
(8) Subject to note (13) below, there is being registered hereunder an
indeterminate amount and number of (i) stock purchase contracts,
representing rights (and obligations) to purchase common stock or preferred
stock of Citadel Communications and (ii) stock purchase units, representing
ownership of stock purchase contracts and debt securities of Citadel
Communications, U.S. Treasury Securities or CCC Capital Trust preferred
securities.
(9) Subject to note (13) below, there is being registered hereunder an
indeterminate amount and number of preferred securities of CCC Capital
Trust I and CCC Capital Trust II as may be sold from time to time.
(10) Includes the rights of the holders of the CCC Capital Trust preferred
securities under the guarantees and certain back-up undertakings, comprised
of obligations of Citadel Communications to provide certain indemnities in
respect of, and pay and be responsible for certain costs, expenses, debts
and liabilities of, each of CCC Capital Trust I and CCC Capital Trust II
and such obligations as set forth in the expense agreement relating to each
such entity and the appropriate Indenture, in each case as further
described in the registration statement. No separate consideration will be
received for any guarantees of the CCC Capital Trust preferred securities
or such back-up obligations.
(11) Subject to note (13) below, there is being registered hereunder an
indeterminate principal amount of junior subordinated debt securities of
Citadel Broadcasting as may be offered or sold, from time to time.
(12) Subject to note (13) below, there is being registered hereunder an
indeterminate number of shares of common stock of Citadel Communications as
may be sold from time to time by the selling stockholders of Citadel
Communications identified herein.
(13) In no event will the aggregate offering price of all securities sold by the
registrants and by the selling stockholders from time to time pursuant to
this registration statement exceed $1,000,000,000. The aggregate amount of
common stock of Citadel Communications registered hereunder is further
limited to that which is permissible under Rule 415(a)(4) under the
Securities Act.
<PAGE> 3
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS
NOT AN OFFER TO SELL NOR DOES IT SEEK AN OFFER TO BUY THESE SECURITIES IN
ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER 10, 1999
PROSPECTUS
$1,000,000,000
CITADEL LOGOCITADEL COMMUNICATIONS CORPORATION
CITADEL BROADCASTING COMPANY
CCC CAPITAL TRUST I
CCC CAPITAL TRUST II
We may offer and sell, from time to time, in one or more offerings, the
debt and equity securities described in this prospectus. Certain holders of
common stock of Citadel Communications Corporation named in this prospectus may
also offer and sell common stock of Citadel Communications, from time to time,
in one or more offerings, pursuant to this prospectus. The securities described
in this prospectus may be offered and sold from time to time for an aggregate
offering price of up to $1,000,000,000.
We will provide the specific terms of these securities in supplements to
this prospectus. This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement. WE URGE YOU TO READ CAREFULLY THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT, WHICH WILL DESCRIBE THE
SPECIFIC TERMS OF THE SECURITIES OFFERED, BEFORE YOU MAKE YOUR INVESTMENT
DECISION.
Citadel Communications may offer and sell, from time to time, in one or
more offerings:
<TABLE>
<S> <C>
- - common stock - stock purchase contracts
- - debt securities - stock purchase units
- - preferred stock - guarantees
- - warrants
</TABLE>
The stock purchase contracts will require a purchaser to buy a specific
amount of common stock or preferred stock, and they will obligate Citadel
Communications to pay specific fees to the purchasers. The stock purchase units
will include these stock purchase contracts and debt securities, debt
obligations of the United States of America or its agents or instrumentalities,
or preferred securities issued by the CCC Capital Trusts. The guarantees will be
Citadel Communications' full, unconditional guarantees of the CCC Capital
Trusts' obligation to distribute specific amounts of cash to the holders of the
CCC Capital Trust preferred securities, and of the junior subordinated debt
securities of Citadel Broadcasting Company.
CCC Capital Trust I and CCC Capital Trust II, each a Delaware business
trust, will offer and sell preferred securities, from time to time in one or
more offerings. Each CCC Capital Trust will use all of the proceeds from the
sale of its preferred securities to buy junior subordinated debt securities of
Citadel Communications or Citadel Broadcasting. The CCC Capital Trusts will
receive cash payments from the junior subordinated debt securities, and each CCC
Capital Trust will distribute these payments to the holders of its preferred and
common securities. Citadel Communications will own all of the common securities
of the CCC Capital Trusts.
FOR A DISCUSSION OF THE RISKS ASSOCIATED WITH AN INVESTMENT IN THESE
SECURITIES, SEE "RISK FACTORS" ON PAGE 6.
------------------------
Neither the Securities and Exchange Commission nor any other regulatory
body has approved or disapproved of these securities or passed upon the adequacy
or accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
THE DATE OF THIS PROSPECTUS IS , 1999
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
EXPLANATORY NOTE............................................ 1
ABOUT THIS PROSPECTUS....................................... 1
WHERE YOU CAN FIND MORE INFORMATION......................... 2
FORWARD-LOOKING STATEMENTS.................................. 3
CITADEL COMMUNICATIONS CORPORATION AND CITADEL BROADCASTING
COMPANY................................................... 4
THE CCC CAPITAL TRUSTS...................................... 4
RISK FACTORS................................................ 6
USE OF PROCEEDS............................................. 6
RATIO OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS............... 7
HOLDING COMPANY STRUCTURE AND SECURED CLAIMS................ 8
SECURITIES WE MAY ISSUE..................................... 8
DESCRIPTION OF CITADEL COMMUNICATIONS' SENIOR AND SENIOR
SUBORDINATED DEBT SECURITIES.............................. 12
DESCRIPTION OF THE PREFERRED STOCK AND THE DEPOSITARY SHARES
REPRESENTING FRACTIONAL SHARES OF PREFERRED STOCK......... 28
DESCRIPTION OF WARRANTS..................................... 33
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE
UNITS..................................................... 36
DESCRIPTION OF THE CITADEL COMMUNICATIONS COMMON STOCK...... 37
DESCRIPTION OF THE CCC CAPITAL TRUSTS PREFERRED
SECURITIES................................................ 42
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES...... 58
DESCRIPTION OF THE GUARANTEE AND EXPENSE AGREEMENT RELATING
TO THE PREFERRED SECURITIES............................... 70
RELATIONSHIP AMONG PREFERRED SECURITIES, JUNIOR SUBORDINATED
DEBT SECURITIES, PREFERRED SECURITIES GUARANTEE AND
EXPENSE AGREEMENT......................................... 73
SELLING STOCKHOLDERS........................................ 76
PLAN OF DISTRIBUTION........................................ 78
VALIDITY OF THE SECURITIES.................................. 79
INDEPENDENT AUDITORS........................................ 79
</TABLE>
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT
AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. IF ANYONE
PROVIDES YOU WITH DIFFERENT OR INCONSISTENT INFORMATION, YOU SHOULD NOT RELY ON
IT. WE ARE OFFERING TO SELL SECURITIES AND SOLICITING OFFERS TO BUY SECURITIES
ONLY IN JURISDICTIONS WHERE OFFERS AND SALES ARE PERMITTED. YOU SHOULD ASSUME
THAT THE INFORMATION APPEARING IN THIS PROSPECTUS AND INFORMATION INCORPORATED
BY REFERENCE INTO THIS PROSPECTUS, IS ACCURATE ONLY AS OF THE DATE OF THE
DOCUMENTS CONTAINING THE INFORMATION.
<PAGE> 5
EXPLANATORY NOTE
References in this prospectus to the term Citadel Communications include
Citadel Communications Corporation's subsidiary, Citadel Broadcasting Company
and its present and future subsidiaries, unless the context otherwise requires.
References to the term Citadel Broadcasting include its present and future
subsidiaries, unless the context otherwise requires. References to the terms we,
our and us include Citadel Communications Corporation, Citadel Broadcasting
Company and their present and future subsidiaries and the CCC Capital Trusts I
and II, unless the context otherwise requires.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using the SEC's shelf registration rules.
Under the shelf registration rules, using this prospectus, together with a
prospectus supplement, we may sell from time to time, in one or more offerings,
any of the securities described in this prospectus, and the selling stockholders
identified in this prospectus may sell shares of Citadel Communications common
stock. The total dollar amount of the securities we and the selling stockholders
sell through these offerings will not exceed $1.0 billion.
This prospectus provides you with a general description of the securities
we may sell and the common stock that the selling stockholders may sell. Each
time we sell securities under this prospectus, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read this prospectus, the applicable
prospectus supplement and the additional information described below under
"Where You Can Find More Information."
We have not included separate financial statements of the CCC Capital
Trusts in this prospectus. We do not believe that these financial statements
would be useful because:
- the voting securities of the CCC Capital Trusts will be owned, directly
or indirectly, by Citadel Communications, a reporting company under the
Securities Exchange Act of 1934, as amended;
- each CCC Capital Trust is a newly formed special purpose entity, has no
operating history or independent operations and is not engaged in and
does not propose to engage in any activity other than holding junior
subordinated debt securities of either Citadel Communications or Citadel
Broadcasting as trust assets and issuing and selling its preferred
securities and common securities; and
- Citadel Communications will provide a full, unconditional guarantee of
each CCC Capital Trust's obligations under its preferred securities.
<PAGE> 6
WHERE YOU CAN FIND MORE INFORMATION
Citadel Communications and Citadel Broadcasting file annual, quarterly and
special reports and other information with the SEC. You may read and copy any
reports, statements or other information Citadel Communications files with the
SEC at its public reference rooms at 450 Fifth Street, N.W., Washington, D.C.
20549, 7 World Trade Center, Suite 1300, New York, New York 10048 and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Citadel
Communications' filings are also available to the public on the internet,
through a database maintained by the SEC at http://www.sec.gov. In addition, you
can inspect and copy Citadel Communications' reports, proxy statements and other
information at the offices of The Nasdaq National Market, 1735 K Street,
Washington, D.C. 20006-1500.
We filed a registration statement on Form S-3 to register with the SEC the
securities described in this prospectus. This prospectus is part of that
registration statement. As permitted by SEC rules, this prospectus does not
contain all the information contained in the registration statement or the
exhibits to the registration statement. As permitted by SEC rules, this
prospectus does not contain all the information contained in the registration
statement or the exhibits to the registration statement. You may refer to the
registration statement and accompanying exhibits for more information about us
and our securities.
The SEC allows us to incorporate by reference into this document the
information Citadel Communications and Citadel Broadcasting filed with it. This
means that we can disclose important business, financial and other information
to you by referring you to other documents separately filed with the SEC. All
information incorporated by reference is part of this document, unless and until
that information is updated and superseded by the information contained in this
document or any information incorporated later.
We incorporate by reference the documents listed below:
1. Citadel Communications' Annual Report on Form 10-K for the year
ended December 31, 1998,
2. Citadel Communications' Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 1999, June 30, 1999 and September
30, 1999,
3. Citadel Communications' Current Reports on Form 8-K filed on
February 17, 1999, July 7, 1999, September 14, 1999 (as amended by
Current Report on Form 8-K/A filed on December 3, 1999) and
December 10, 1999,
4. The description of Citadel Communications' common stock, par value
$.001 per share, contained in its Registration Statement on Form
8-A/A under Section 12 of the Exchange Act, filed on June 30, 1998,
as amended by Citadel Communications' Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1999 and any further
amendment or report filed hereafter for the purpose of updating
such description,
5. Citadel Broadcasting's Annual Report on Form 10-K for the year
ended December 31, 1998,
6. Citadel Broadcasting's Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 1999, June 30, 1999 and September
30, 1999, and
2
<PAGE> 7
7. Citadel Broadcasting's Current Reports on Form 8-K filed on
February 17, 1999, July 7, 1999, September 14, 1999 (as amended by
Current Report on Form 8-K/A filed on December 3, 1999) and
December 10, 1999.
We also incorporate by reference all future filings we make with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or (i) after the
date of the filing of this registration statement and prior to its effectiveness
and (ii) after the date of this prospectus and prior to the termination of the
offering made hereby.
You may obtain copies of filings referred to above at no cost by contacting
us at the following address: Corporate Secretary, Citadel Communications
Corporation, City Center West, Suite 400, 7201 West Lake Mead Boulevard, Las
Vegas, Nevada 89128, telephone (702) 804-5200.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated in this prospectus by
reference include forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, as amended, and Section 21E of the Exchange Act.
We based these forward-looking statements largely on our current expectations
and projections about future events and financial trends affecting our business.
The words "believes," "may," "will," "estimates," "continues," "anticipates,"
"intends," "expects" and similar words are intended to identify forward-looking
statements. Our forward-looking statements are subject to risks, uncertainties
and assumptions including, among other things:
- the realization of our business strategy;
- general economic and business conditions, both nationally and in our
markets;
- our expectations and estimates concerning future financial performance,
financing plans and the impact of competition;
- anticipated trends in our industry;
- the impact of current or pending legislation and regulation and antitrust
considerations; and
- other risk factors discussed in the "Risk Factors" section of each of
Citadel Communications' and Citadel Broadcasting's Quarterly Reports on
Form 10-Q for the fiscal quarter ended September 30, 1999 incorporated by
reference herein.
We undertake no obligation to publicly update or revise any forward-looking
statements because of new information, future events or otherwise. In light of
these risks and uncertainties, the forward-looking events and circumstances
discussed in this prospectus might not transpire.
3
<PAGE> 8
CITADEL COMMUNICATIONS CORPORATION AND
CITADEL BROADCASTING COMPANY
Citadel Communications, through its operating subsidiary, Citadel
Broadcasting, is a radio broadcaster in the United States of America that
focuses on acquiring, developing and operating radio stations in the United
States. Citadel Communications' primary strategy is to secure and maintain a
leadership position in its existing markets and to expand into additional
markets where it believes a leadership position can be obtained.
Citadel Communications' common stock is traded on the Nasdaq National
Market under the symbol "CITC." The principal executive offices of Citadel
Communications and Citadel Broadcasting are located at City Center West, Suite
400, 7201 West Lake Mead Boulevard, Las Vegas, Nevada 89128 and their telephone
number is (702) 804-5200.
THE CCC CAPITAL TRUSTS
Each CCC Capital Trust is a statutory business trust created under Delaware
law under a declaration of trust between Citadel Communications, as depositor,
and The Bank of New York (Delaware), as Delaware trustee, and The Bank of New
York, as property trustee. Certificates of trust have been filed with the
Secretary of State of the State of Delaware. Each declaration of trust will be
amended and restated in its entirety at the time of an offering of preferred
securities of either CCC Capital Trust in the form filed as an exhibit to the
registration statement of which this prospectus is a part. Each amended and
restated declaration of trust will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended, and will govern the duties and obligations of
each CCC Capital Trust and its trustees.
Unless the accompanying prospectus supplement provides otherwise, each CCC
Capital Trust exists solely for the following purposes:
- issuing and selling its preferred securities and common securities;
- using the proceeds from the sale of its preferred securities and common
securities to acquire Citadel Communications' or Citadel Broadcasting's
junior subordinated debt securities; and
- engaging only in those other activities that are necessary or incidental
to the activities described above.
In connection with an offering by a CCC Capital Trust, the CCC Capital
Trust will issue preferred securities and common securities under an amended and
restated declaration of trust. The preferred securities will represent preferred
undivided beneficial interests in the assets of the CCC Capital Trust, and the
common securities will represent common undivided beneficial interests in the
assets of the CCC Capital Trust. The preferred securities and the common
securities will have substantially similar terms, except that the holders of
preferred securities will be entitled to priority in right of payment over the
holders of common securities in certain circumstances involving an event of
default under the amended and restated declaration of trust, and the holders of
common securities will have broader voting rights.
4
<PAGE> 9
At the closing of an offering of CCC Capital Trust preferred securities,
the underwriters will purchase the preferred securities and Citadel
Communications will purchase the common securities from the issuing CCC Capital
Trust, and the issuing CCC Capital Trust will use the proceeds from those sales
to purchase corresponding junior subordinated debt securities from Citadel
Communications or Citadel Broadcasting. Citadel Communications will guarantee
payments on Citadel Broadcasting's junior subordinated debt securities on a
subordinated basis. The aggregate liquidation amount of the common securities
acquired by Citadel Communications will equal at least 3% of the issuing CCC
Capital Trust's total capital at the closing. Citadel Communications will
continue to hold all the common securities after the closing of the offering.
Also at the closing, Citadel Communications will execute a guarantee and an
expense agreement. Under the guarantee, Citadel Communications will guarantee
payments on the preferred securities, but only to the extent that the CCC
Capital Trust has funds legally available to make those payments. The expense
agreement will provide for Citadel Communications to reimburse the CCC Capital
Trust for all expenses and liabilities it incurs (other than amounts payable in
respect of the preferred securities). Citadel Communications will also pay the
expenses of the offering of the CCC Capital Trust preferred securities,
including underwriters' commissions.
Each CCC Capital Trust will have no assets other than the junior
subordinated debt securities and the right to receive reimbursement under the
expense agreement. Citadel Communications or Citadel Broadcasting will have the
right to defer the payment of interest on their respective junior subordinated
securities at any time for a period not exceeding 20 consecutive quarters. See
"Description of the CCC Capital Trusts Preferred Securities--Extension Periods."
Each CCC Capital Trust will have no revenue other than payments under the junior
subordinated debt securities and the expense agreement.
Each CCC Capital Trust has a term of approximately 55 years but may
dissolve earlier as provided in its amended and restated declaration of trust.
Each CCC Capital Trust's business and affairs will be conducted by its trustees.
Unless otherwise set forth in a prospectus supplement, these trustees will be
The Bank of New York, as property trustee, and The Bank of New York (Delaware),
as Delaware Trustee. In addition, Citadel Communications, as the holder of the
common securities, will select two individuals who will act as administrators
with respect to each CCC Capital Trust. The administrators will initially be
employees or officers of Citadel Communications. The property trustee will act
as the indenture trustee under the amended and restated declaration of trust for
purposes of compliance with the Trust Indenture Act.
Unless otherwise set forth in a prospectus supplement, The Bank of New York
will also act as the trustee under the guarantee and the indentures relating to
the junior subordinated debt securities, which are described in the "Description
of the Junior Subordinated Debt Securities" section of this prospectus. The
principal executive offices of each CCC Capital Trust are located at City Center
West, Suite 400, 7201 West Lake Mead Boulevard, Las Vegas, Nevada 89128, and
each CCC Capital Trust's telephone number is (702) 804-5200.
5
<PAGE> 10
RISK FACTORS
The securities to be offered may involve a high degree of risk. These risks
will be set forth in the prospectus supplement relating to the security. You
should carefully consider the important factors set forth under the heading
"Risk Factors" in the applicable supplement to this prospectus before investing
in any securities that may be offered. In addition, the risks relating to our
business will also be set forth in the prospectus supplement.
USE OF PROCEEDS
Unless indicated otherwise in the applicable prospectus supplement, Citadel
Communications and Citadel Broadcasting expect to use the net proceeds from the
sale of their respective securities for general corporate purposes, including
repayment of borrowings, working capital and capital expenditures. In addition,
Citadel Communications and Citadel Broadcasting may use the net proceeds from
the sale of their securities for acquisitions. Unless otherwise indicated in the
applicable prospectus supplement, each CCC Capital Trust will use all proceeds
received from the sale of its preferred securities and common securities to
purchase junior subordinated debt securities of Citadel Communications or
Citadel Broadcasting. In the event selling stockholders of Citadel
Communications sell any shares of Citadel Communications common stock, such
selling stockholders will receive all of the proceeds from their sale.
Additional information on the use of net proceeds from the sale of
securities offered by this prospectus will be set forth in the prospectus
supplement relating to such offering.
6
<PAGE> 11
RATIO OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Set forth below is information concerning Citadel Communications' and
Citadel Broadcasting's ratios of earnings to fixed charges and Citadel
Communications' ratio of earnings to combined fixed charges and preferred stock
dividends. These ratios show the extent to which Citadel Communications' and
Citadel Broadcasting's business generates enough earnings after the payment of
all expenses other than interest and preferred stock dividends to make required
interest and dividend payments on their debt and preferred stock. For this
purpose, earnings represents:
- the sum of pretax income from continuing operations before adjustment for
minority interests in consolidated subsidiaries or income or loss from
equity investees, fixed charges, amortization of capitalized interest,
distributed income of equity investees and share of pretax losses of
equity investees for which charges arising from guarantees are included
in fixed charges, less
- the sum of interest capitalized, preference security dividend
requirements of consolidated subsidiaries and the minority interest in
pretax income of subsidiaries that have not incurred fixed charges.
Fixed charges represents the sum of interest expensed and capitalized, amortized
premiums, discounts and capitalized expenses related to indebtedness, an
estimate of the interest within rental expense and preference security dividend
requirements of consolidated subsidiaries. Preferred stock dividends represents
the amount of pretax earnings required to pay the dividends on outstanding
preference securities.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, -----------------------------------------------
1999 1998 1997 1996 1995 1994
------------------ ------- ------- ------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
CITADEL COMMUNICATIONS
Ratio of earnings to
fixed charges........... 0.43x 0.41x 0.37x 0.69x 0.20x (0.09)x
Deficiency of earnings
available to cover
fixed charges......... $16,751 $19,903 $12,687 $ 1,997 $ 4,376 $ 5,511
Ratio of earnings to
combined fixed charges
and preferred stock
dividends............. 0.31x 0.28x 0.28x 0.69x 0.20x (0.09)x
Deficiency of earnings
available to cover
combined fixed charges
and preferred stock
dividends............. $28,074 $34,489 $19,320 $ 1,997 $ 4,376 $ 5,511
CITADEL BROADCASTING
Ratio of earnings to
fixed charges......... 0.43x 0.41x 0.38x 0.70x 0.21x (0.08)x
Deficiency of earnings
available to cover
fixed charges......... $16,751 $19,903 $12,094 $ 1,966 $ 4,346 $ 5,481
</TABLE>
7
<PAGE> 12
HOLDING COMPANY STRUCTURE AND SECURED CLAIMS
Citadel Communications is a holding company whose only material asset is
its investments in its subsidiary, Citadel Broadcasting. Citadel Broadcasting
operates Citadel Communications' radio stations. Citadel Communications' ability
to meet its future financial obligations depends upon the availability of cash
flows from Citadel Broadcasting through dividends, intercompany advances,
management fees and other payments or the issuance of new equity. Citadel
Broadcasting is under no obligation to pay dividends to Citadel Communications
and is subject to statutory and contractual restrictions that limit its ability
to pay dividends and make other payments to Citadel Communications. Citadel
Communications' right to participate in the distribution of assets of Citadel
Broadcasting upon its liquidation or reorganization will be subject to prior
claims of the creditors of Citadel Broadcasting, including trade creditors,
except to the extent that Citadel Communications may be a creditor with
recognized claims against Citadel Broadcasting. In addition, the outstanding
shares of common stock of Citadel Broadcasting owned by Citadel Communications
have been pledged to secure its guaranty of Citadel Broadcasting's obligations
under its credit facility.
SECURITIES WE MAY ISSUE
OVERVIEW
This prospectus describes the securities we may issue from time to time and
the common stock that may be sold by the selling stockholders from time to time.
The remainder of this section provides some background information about the
manner in which the securities may be held, then describes the terms of the nine
basic categories of securities:
- Citadel Communications' debt securities, which may be senior or senior
subordinated;
- Citadel Communications' preferred stock, which may be issued in the form
of depositary shares representing fractions of shares of preferred stock;
- Citadel Communications' warrants to purchase debt securities, preferred
stock or common stock of Citadel Communications;
- Citadel Communications' stock purchase contracts and stock purchase
units;
- Citadel Communications' common stock;
- preferred securities of the CCC Capital Trusts, which represent undivided
beneficial interests in the assets of the issuing CCC Capital Trust;
- Citadel Communications' and Citadel Broadcasting's junior subordinated
debt securities;
- Citadel Communications' guarantee of Citadel Broadcasting's junior
subordinated debt securities; and
- Citadel Communications' guarantee of the CCC Capital Trusts' preferred
securities.
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<PAGE> 13
PROSPECTUS SUPPLEMENTS
This prospectus provides you with a general description of the securities
we may offer. Each time we or the selling stockholders sell securities, we will
provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add to or change
information contained in this prospectus. If so, the prospectus supplement
should be read as superseding this prospectus. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading "Where You Can Find More Information."
The prospectus supplement to be attached to the front of this prospectus
will describe the terms of any securities that we or the selling stockholders
offer and any initial offering price to the public in that offering, the
purchase price and net proceeds that we will receive and the other specific
terms related to that offering of the securities. For more details on the terms
of the securities, you should read the exhibits filed with our registration
statement, of which this prospectus is a part.
LEGAL OWNERSHIP OF SECURITIES
HOLDERS OF SECURITIES
Book-Entry Holders. Citadel Communications will issue debt securities in
book-entry form only, unless it specifies otherwise in the applicable prospectus
supplement. Citadel Communications may issue shares of common stock and shares
of preferred stock and the CCC Capital Trusts may issue preferred securities in
book-entry form. If securities are issued in book-entry form, this means the
securities will be represented by one or more global securities registered in
the name of a financial institution that holds them as depositary on behalf of
other financial institutions that participate in the depositary's book-entry
system. These participating institutions, in turn, hold beneficial interests in
the securities on behalf of themselves or their customers.
We will only recognize the person in whose name a security is registered as
the holder of that security. Consequently, for securities issued in global form,
we will recognize only the depositary as the holder of the securities and all
payments on the securities will be made to the depositary. The depositary passes
along the payments it receives to its participants, which in turn pass the
payments along to their customers who are the beneficial owners. The depositary
and its participants do so under agreements they have made with one another or
with their customers; they are not obligated to do so under the terms of the
securities.
As a result, investors will not own securities directly. Instead, they will
own beneficial interests in a global security, through a bank, broker or other
financial institution that participates in the depositary's book-entry system or
holds an interest through a participant. As long as the securities are issued in
global form, investors will be indirect holders, and not holders, of the
securities.
Street Name Holders. In the future Citadel Communications or a CCC Capital
Trust may terminate a global security or issue securities initially in
non-global form. In these cases, investors may choose to hold their securities
in their own names or in "street name." Securities held by an investor in street
name would be registered in the name of a bank, broker or other financial
institution that the investor chooses, and the investor would hold
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<PAGE> 14
only a beneficial interest in those securities through an account he or she
maintains at that institution.
For securities held in street name, we will recognize only the intermediary
banks, brokers and other financial institutions in whose names the securities
are registered as the holders of those securities and all payments on those
securities will be made to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they
agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders,
not holders, of those securities.
Legal Holders. We, and any third parties employed by us or acting on your
behalf, such as trustees, depositories and transfer agents, are obligated only
to the legal holders of the securities. We do not have obligations to investors
who hold beneficial interests in global securities, in street name or by any
other indirect means. This will be the case whether an investor chooses to be an
indirect holder of a security or has no choice because Citadel Communications or
the CCC Capital Trust is issuing the securities only in global form.
For example, once Citadel Communications or a CCC Capital Trust makes a
payment or gives a notice to the holder, Citadel Communications or the CCC
Capital Trust has no further responsibility for the payment or notice even if
that holder is required, under agreements with depositary participants or
customers or by law, to pass it along to the indirect holders but does not do
so. Similarly, if Citadel Communications or the CCC Capital Trust wants to
obtain the approval of the holders for any purpose (for example, to amend an
indenture or to relieve Citadel Communications of the consequences of a default
or of its obligation to comply with a particular provision of the indenture)
Citadel Communications or CCC Capital Trust would seek the approval only from
the holders, and not the indirect holders, of the securities. Whether and how
the holders contact the indirect holders is up to the holders.
When we refer to you, we mean those who invest in the securities being
offered by this prospectus, whether they are the holders or only indirect
holders of those securities. When we refer to your securities, we mean the
securities being offered by this prospectus in which you hold a direct or
indirect interest.
Special Considerations for Indirect Holders. If you hold securities through
a bank, broker or other financial institution, either in book-entry form or in
street name, you should check with your own institution to find out:
- how it handles securities payments and notices;
- whether it imposes fees or charges;
- how it would handle a request for the holders' consent, if ever required;
- whether and how you can instruct it to send you securities registered in
your own name so you can be a holder, if that is permitted in the future;
- how it would exercise rights under the securities if there were a default
or other event triggering the need for holders to act to protect their
interests; and
- if the securities are in book-entry form, how the depositary's rules and
procedures will affect these matters.
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<PAGE> 15
GLOBAL SECURITIES
What is a Global Security? A global security represents one or any other
number of individual securities. Generally, all securities represented by the
same global securities will have the same terms. Citadel Communications or a CCC
Capital Trust may, however, issue a global security that represents multiple
securities that have different terms and are issued at different times. We call
this kind of global security a master global security.
Each security issued in book-entry form will be represented by a global
security that Citadel Communications or a CCC Capital Trust deposits with and
registers in the name of a financial institution or its nominee that it selects.
The financial institution that is selected for this purpose is called the
depositary. Unless we specify otherwise in the applicable prospectus supplement,
The Depository Trust & Clearing Corporation, New York, New York, known as DTC,
will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of
anyone other than the depositary or its nominee, unless special termination
situations arise. We describe those situations below under "Special Situations
When a Global Security Will Be Terminated." As a result of these arrangements,
the depositary, or its nominee, will be the sole registered owner and holder of
all securities represented by a global security, and investors will be permitted
to own only beneficial interests in a global security. Beneficial interests must
be held by means of an account with a broker, bank or other financial
institution that in turn has an account with the depositary or with another
institution that does. Thus, an investor whose security is represented by a
global security will not be a holder of the security, but only an indirect
holder of a beneficial interest in the global security.
Special Considerations for Global Securities. As an indirect holder, an
investor's rights relating to a global security will be governed by the account
rules of the investor's financial institution and of the depositary, as well as
general laws relating to securities transfers. We do not recognize this type of
investor as a holder of securities and instead deal only with the depositary
that holds the global security.
If securities are issued only in the form of a global security, an investor
should be aware of the following:
- An investor cannot cause the securities to be registered in his or her
name, and cannot obtain non-global certificates for his or her interest
in the securities, except in the special situations we describe below.
- An investor will be an indirect holder and must look to his or her own
bank or broker for payments on the securities and protection of his or
her legal rights relating to the securities, as we describe under
"Holders of Securities" above.
- An investor may not be able to sell interests in the securities to some
insurance companies and to other institutions that are required by law to
own their securities in non-book-entry form.
- An investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the securities
must be delivered to the lender or other beneficiary of the pledge in
order for the pledge to be effective.
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<PAGE> 16
- The depositary's policies, which may change from time to time, will
govern payments, transfers, exchanges and other matters relating to an
investor's interest in a global security. Neither we nor any third
parties employed by us or acting on your behalf, such as trustees and
transfer agents, have any responsibility for any aspect of the
depositary's actions or for its records of ownership interests in a
global security. We also do not supervise the depositary in any way.
- DTC requires that those who purchase and sell interests in a global
security within its book-entry system use immediately available funds and
your broker or bank may require you to do so as well.
- Financial institutions that participate in the depositary's book-entry
system, and through which an investor holds its interest in a global
security, may also have their own policies affecting payments, notices
and other matters relating to the security. There may be more than one
financial intermediary in the chain of ownership for an investor. We do
not monitor and are not responsible for the actions of any of those
intermediaries.
Special Situations When a Global Security Will Be Terminated. In a few
special situations described below, a global security will be terminated and
interests in it will be exchanged for certificates in non-global form
representing the securities it represented. After that exchange, the choice of
whether to hold the securities directly or in street name will be up to the
investor. Investors must consult their own banks or brokers to find out how to
have their interests in a global security transferred on termination to their
own names, so that they will be holders. We have described the rights of holders
and street name investors above under "--Holders of Securities."
The special situations for termination of a global security are as follows:
- if the depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary for that global security and we do
not appoint another institution to act as depositary within a specified
time period;
- if we elect to terminate that global security; or
- if an event of default has occurred with regard to securities represented
by that global security and has not been cured or waived.
The prospectus supplement may also list additional situations for
terminating a global security that would apply to a particular series of
securities covered by the prospectus supplement. If a global security is
terminated, only the depositary is responsible for deciding the names of the
institutions in whose names the securities represented by the global security
will be registered and, therefore, who will be the holders of those securities.
DESCRIPTION OF CITADEL COMMUNICATIONS'
SENIOR AND SENIOR SUBORDINATED DEBT SECURITIES
Citadel Communications may issue debt securities from time to time in one
or more distinct series. This section summarizes the material terms of Citadel
Communications' senior or senior subordinated debt securities that are common to
all series. Citadel Communications' junior subordinated debt securities are
discussed separately. Most of the financial and other
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<PAGE> 17
terms of any series of debt securities that Citadel Communications offers will
be described in the prospectus supplement to be attached to the front of this
prospectus. For definitions of certain capitalized terms used in this
"Description of Citadel Communications' Senior and Senior Subordinated Debt
Securities," please refer to "--Certain Definitions" below.
As required by U.S. federal law for all bonds and notes of companies that
are publicly offered, the debt securities will be governed by a document called
an indenture. An indenture is a contract between Citadel Communications and a
financial institution, in our case, The Bank of New York, acting as trustee on
your behalf. The indenture will be subject to and governed by the Trust
Indenture Act of 1939. The trustee has two main roles:
- First, subject to some limitations, the trustee can enforce your rights
against Citadel Communications if it defaults.
- Second, the trustee performs certain administrative duties for Citadel
Communications, which include sending you interest payments and notices.
Because Citadel Communications may issue both senior debt securities and
senior subordinated debt securities, our references to the indenture in this
section are to each of the senior debt indenture and the senior subordinated
debt indenture, unless the context requires otherwise. In this section, we refer
to these indentures collectively as the indentures.
Because this section is a summary of the material terms of the indentures,
it does not describe every aspect of the debt securities. We urge you to read
the indentures because they, and not this description, define your rights as a
holder of debt securities. We have filed the forms of the indentures as exhibits
to a registration statement that we have filed with the SEC, of which this
prospectus is the part. See "Where You Can Find More Information," for
information on how to obtain copies of the indentures.
GENERAL
The debt securities will be unsecured obligations of Citadel
Communications. The senior debt securities will rank equally with all other
unsecured and unsubordinated indebtedness of Citadel Communications. The senior
subordinated debt securities will be subordinate and junior in right of payment
to all existing and future Senior Debt of Citadel Communications.
You should read the prospectus supplement for the following terms of the
series of debt securities offered by the prospectus supplement. These terms will
be established by authority of Citadel Communications' Board of Directors before
issuance of the series:
- the title of the debt securities and whether the debt securities will be
senior debt securities or subordinated debt securities;
- the aggregate principal amount of the debt securities, the percentage of
their principal amount at which the debt securities will be issued and
the date or dates when the principal of the debt securities will be
payable or how those dates will be determined;
- the interest rate or rates, which may be fixed or variable, that the debt
securities will bear, if any, and how the rate or rates will be
determined;
- the date or dates from which any interest will accrue or how the date or
dates will be determined, the date or dates on which any interest will be
payable, any regular
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<PAGE> 18
record dates for these payments or how these dates will be determined and
the basis on which any interest will be calculated, if other than on the
basis of a 360-day year of twelve 30-day months;
- the place or places, if any, other than or in addition to New York City,
of payment, transfer, conversion and/or exchange of the debt securities
and where notices or demands to or upon us in respect of the debt
securities may be served;
- any optional redemption provisions;
- any sinking fund or other provisions that would obligate Citadel
Communications to repurchase or redeem the debt securities;
- whether the amount of payments of principal of, or premium, if any, or
interest on the debt securities will be determined with reference to an
index, formula or other method, which could be based on one or more
commodities, equity indices or other indices, and how these amounts will
be determined;
- any changes or additions to the events of default under the applicable
indenture or Citadel Communications' covenants with respect to the debt
securities;
- if not the principal amount of the debt securities, the portion of the
principal amount that will be payable upon acceleration of the maturity
of the debt securities or how that portion will be determined;
- any changes or additions to the provisions concerning defeasance and
covenant defeasance contained in the indenture that will be applicable to
the debt securities;
- any provisions granting special rights to the holders of the debt
securities upon the occurrence of specified events;
- if other than the trustee, the name of the paying agent(s), security
registrar and/or transfer agent for the debt securities;
- if the debt securities are not to be issued in book-entry form only and
held by DTC, as depositary, whether the debt securities will be issued in
global form or fully registered form and/or the identity of any
alternative depositary;
- the person to whom any interest in a debt security will be payable, if
other than the registered holder at the close of business on the regular
record date;
- the denomination or denominations that the debt securities will be
issued, if other than denominations of $1,000 or any integral multiples;
- whether such debt securities will be convertible into or exchangeable for
any other securities, and if so, the terms and conditions upon which such
debt securities will be so convertible or exchangeable;
- a discussion of federal income tax, accounting and other special
considerations, procedures and limitations with respect to the debt
securities; and
- any other terms of the debt securities that are consistent with the
provisions of the indenture.
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<PAGE> 19
The indentures do not limit the amount of debt securities that Citadel
Communications is authorized to issue from time to time. The indentures also
provide that there may be more than one trustee thereunder, each for one or more
series of debt securities. At a time when two or more trustees are acting under
the indenture, each with respect to only certain series, the term debt
securities means the series of debt securities for which each respective trustee
is acting. If there is more than one trustee under the indenture, the powers and
trust obligations of each trustee will apply only to the debt securities for
which it is trustee. If two or more trustees are acting under the indenture,
then the debt securities for which each trustee is acting would be treated as if
issued under separate indentures.
Citadel Communications may issue debt securities with terms different from
those of debt securities that may already have been issued. Without the consent
of the holders thereof, Citadel Communications may reopen a previous issue of a
series of debt securities and issue additional debt securities of that series
unless the reopening was restricted when that series was created.
There is no requirement that Citadel Communications issues debt securities
in the future under any indenture, and Citadel Communications may use other
indentures or documentation, containing different provisions in connection with
future issues of other debt securities.
Citadel Communications may issue the debt securities as original issue
discount securities, which are debt securities, including any zero-coupon debt
securities, that are issued and sold at a discount from their stated principal
amount. Original issue discount securities provide that, upon acceleration of
their maturity, an amount less than their principal amount will become due and
payable. Citadel Communications will describe the U.S. federal income tax
consequences and other considerations applicable to original issue discount
securities in any prospectus supplement relating to them.
PAYMENT MECHANICS
Who Receives Payment? If interest is due on a debt security on an interest
payment date, Citadel Communications will pay the interest to the person or
entity in whose name the debt security is registered at the close of business on
the regular record date (see below) relating to the interest payment date. If
interest is due at maturity but on a day that is not an interest payment date,
Citadel Communications will pay the interest to the person or entity entitled to
receive the principal of the debt security. If principal or another amount
besides interest is due on a debt security at maturity, Citadel Communications
will pay the amount to the holder of the debt security against surrender of the
debt security at a proper place of payment, or, in the case of a global
security, in accordance with the applicable policies of the depositary.
Payments on Global Securities. Citadel Communications will make payments on
a global security in accordance with the applicable policies of the depositary
as in effect from time to time. Under those policies, Citadel Communications
will pay directly to the depositary, or its nominee, and not to any indirect
holders who own beneficial interests in the global security. An indirect
holder's right to those payments will be governed by the rules and practices of
the depositary and its participants, as described under "Securities We May
Issue--Legal Ownership of Securities--Global Securities--What Is a Global
Security?"
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<PAGE> 20
Payments on Non-Global Securities. Citadel Communications will make
payments on a debt security in non-global form as follows. Citadel
Communications will pay interest that is due on an interest payment date by
check mailed on the interest payment date to the holder at his or her address
shown on the trustee's records as of the close of business on the regular record
date. Citadel Communications will make all other payments by check at the paying
agent described below, against surrender of the debt security. All payments by
check will be made in next-day funds, that is, funds that become available on
the day after the check is cashed.
Alternatively, if a non-global security has a face amount of at least
$1,000,000 and the holder asks Citadel Communications to do so, Citadel
Communications will pay any amount that becomes due on the debt security by wire
transfer of immediately available funds to an account at a bank in New York
City, on the due date. To request wire payment, the holder must give the paying
agent appropriate transfer instructions at least five business days before the
requested wire payment is due. In the case of any interest payment due on an
interest payment date, the instructions must be given by the person who is the
holder on the relevant regular record date. In the case of any other payment,
payment will be made only after the debt security is surrendered to the paying
agent. Any wire instructions, once properly given, will remain in effect unless
and until new instructions are given in the manner described above.
Regular Record Dates. Citadel Communications will pay interest to the
holders listed in the trustee's records as the owners of the debt securities at
the close of business on a particular day in advance of each interest payment
date. Interest will be paid to these holders if they are listed as the owner
even if they no longer own the debt security on the interest payment date. That
particular day, usually about two weeks in advance of the interest payment date,
is called the regular record date and will be identified in the prospectus
supplement.
Payment When Offices Are Closed. If any payment is due on a debt security
on a day that is not a business day, Citadel Communications will make the
payment on the next day that is a business day. Payments postponed to the next
business day in this situation will be treated under the indenture as if they
were made on the original due date. A postponement of this kind will not result
in a default under any debt security or the indenture, and no interest will
accrue on the postponed amount from the original due date to the next day that
is a business day.
Paying Agents. Citadel Communications may appoint one or more financial
institutions to act as its paying agents, at whose designated offices debt
securities in non-global form may be surrendered for payment at their maturity.
Citadel Communications calls each of those offices a paying agent. Citadel
Communications may add, replace or terminate paying agents from time to time.
Citadel Communications may also choose to act as its own paying agent.
Initially, Citadel Communications will appoint the trustee, at its corporate
trust office in New York City, as the paying agent. Citadel Communications must
notify you of changes in the paying agents.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS
FOR INFORMATION ON HOW THEY WILL RECEIVE PAYMENTS ON THEIR DEBT SECURITIES.
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<PAGE> 21
RANKING
Senior Debt Securities. Unless otherwise specified in a prospectus
supplement for a particular series of senior debt securities, the senior debt
securities will be senior indebtedness of Citadel Communications and will be
direct, unsecured obligations of Citadel Communications, ranking equally with
all other unsecured and unsubordinated indebtedness of Citadel Communications.
Citadel Communications is a holding company and the senior debt securities will
be effectively subordinated to all existing and future liabilities, including
indebtedness, of Citadel Communications' current subsidiary or future
subsidiaries. See "Holding Company Structure and Secured Claims."
Senior Subordinated Debt Securities. The senior subordinated debt
securities are, to the extent set forth in the senior subordinated indenture,
subordinate in right of payment to the prior payment in full of all Senior Debt
of Citadel Communications. Upon any payment or distribution of assets of Citadel
Communications to creditors upon any liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors, marshaling of assets or
any bankruptcy, insolvency or similar proceedings of Citadel Communications
(except in connection with the consolidation or merger of Citadel Communications
or its liquidation or dissolution following the conveyance, transfer or lease of
its properties and assets substantially as an entirety, upon the terms and
conditions described under "--Consolidation, Merger and Sale of Assets"), the
holders of Senior Debt will first be entitled to receive payment in full, in
cash or cash equivalents, of all amounts due or to become due on or in respect
of such Senior Debt before the holders of senior subordinated debt securities
are entitled to receive any payment of principal of, or premium, if any, or
interest on the senior subordinated debt securities or on account of the
purchase or redemption or other acquisition of senior subordinated debt
securities by Citadel Communications. In the event that, notwithstanding the
foregoing, the trustee under the senior subordinated indenture or the holder of
any senior subordinated debt security receives any payment or distribution of
assets of Citadel Communications of any kind or character (excluding equity or
subordinated securities of Citadel Communications provided for in a plan of
reorganization or readjustment that, in the case of subordinated securities, are
subordinated in right of payment to all Senior Debt to at least the same extent
as the senior subordinated debt securities are so subordinated), before all the
Senior Debt is paid in full, then such payment or distribution will be held in
trust for the holders of Senior Debt and will be required to be paid over or
delivered forthwith to the trustee in bankruptcy or other person making payment
or distribution of assets of Citadel Communications for application to the
payment of all Senior Debt remaining unpaid, to the extent necessary to pay the
Senior Debt in full.
Citadel Communications may not make any payments on account of the senior
subordinated debt securities or on account of the purchase or redemption or
other acquisition of senior subordinated debt securities if a default in the
payment when due of principal of, or premium, if any, or interest on Specified
Senior Debt has occurred and is continuing or a default in the payment when due
of commitment, facility or other fees, letter of credit fees or agency fees
under Citadel Communications' credit facility, or a default in payments when due
with respect to letter of credit reimbursement arrangements with the agent under
the credit facility has occurred and is continuing (a "Senior Payment Default").
In addition, if any default other than a Senior Payment Default with respect to
any Specified Senior Debt permitting the holders thereof or a trustee or agent
on behalf thereof to accelerate the
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<PAGE> 22
maturity thereof (a "Senior Nonmonetary Default") has occurred and is continuing
and Citadel Communications and the trustee under the senior subordinated
indenture have received written notice thereof from the agent under the credit
facility or from an authorized person on behalf of any holder of Specified
Senior Debt, then Citadel Communications may not make any payments on account of
the debt securities or on account of the purchase or redemption or other
acquisition of debt securities for a blockage period commencing on the date
Citadel Communications and the trustee under the senior subordinated indenture
receive such written notice of default and ending on the earliest of:
- 179 days after such date;
- the date, if any, on which the Specified Senior Debt to which such
default relates is discharged or such default is waived or otherwise
cured; and
- the date, if any, on which such blockage period has been terminated by
written notice to Citadel Communications or the trustee under the senior
subordinated indenture from the agent under the credit facility or from
the person who gave the written notice of default.
Any number of additional payment blockage periods may be commenced during
the period commencing on the date Citadel Communications and the trustee under
the senior subordinated indenture receive the written notice of default and
ending 179 days after that date; provided, however, that no such additional
payment blockage periods shall extend beyond this period. After the expiration
of that period, no payment blockage period may be commenced until at least 181
consecutive days shall have elapsed from the last day of the period. No Senior
Nonmonetary Default that existed or was continuing on the date of the
commencement of any blockage period with respect to the Specified Senior Debt
initiating such blockage period will be, or can be, made the basis for the
commencement of a subsequent blockage period, unless such default has been cured
or waived for a period of not less than 90 consecutive days. In the event that,
notwithstanding the foregoing, Citadel Communications makes any payment to the
trustee under the senior subordinated indenture or the holder of any debt
security prohibited by these blockage provisions, then such payment will be held
in trust for the holders of Senior Debt and will be required to be paid over and
delivered forthwith to the holders of the Senior Debt remaining unpaid, to the
extent necessary to pay in full all the Senior Debt.
By reason of such subordination, in the event of insolvency, creditors of
Citadel Communications who are not holders of Senior Debt may recover less,
ratably, than holders of Senior Debt and may recover more, ratably, than the
holders of the senior subordinated securities.
The subordination provisions described above will cease to be applicable to
the debt securities upon any defeasance or covenant defeasance of the debt
securities as described under "--Defeasance or Covenant Defeasance of
Indenture."
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
indentures. Reference is made to the full definition of all such terms as well
as any other capitalized terms used in this "Description of Citadel
Communications' Senior and Senior Subordinated Debt Securities" section for
which no definition is provided.
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"Affiliate" means, with respect to any specified person, any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control," when used with respect to any specified person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Stock" of any person means any and all shares, interests,
partnership interests, participations, rights in or other equivalents, however
designated, of such person's equity, however designated, whether now outstanding
or issued after the date of the indenture.
"Debt" means, without duplication, with respect to any person, whether
recourse is to all or a portion of the assets of such person and whether or not
contingent:
- every obligation of such person for money borrowed;
- every obligation of such person evidenced by bonds, debentures, notes or
other similar instruments;
- every reimbursement obligation of such person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account
of such person;
- every obligation of such person issued or assumed as the deferred
purchase price of property or services;
- every obligation incurred or assumed under or in connection with any
capital lease of real or personal property that, in accordance with
generally accepted accounting principles, has been recorded as a
capitalized lease on the balance sheet of such person;
- all Disqualified Stock of such person valued at its maximum fixed
repurchase price, plus accumulated and unpaid dividends;
- all obligations of such person under (a) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (b)
other agreements or arrangements designed to protect such person against
fluctuations in interest rates or the value of foreign currencies of such
person; and
- every obligation of the types referred to in the clauses above of another
person and all dividends of another person (1) the payment of which, in
either case, such person has guaranteed or (2) which is secured by any
Lien on any property or asset of such person, the amount of such Debt
being deemed to be the lesser of the actual amount of the guarantee or
the value of such property or asset subject to such Lien, as the case may
be, and the amount of the Debt so guaranteed or secured, as the case may
be. For purposes of this definition, the "maximum fixed repurchase price"
of any Disqualified Stock that does not have a fixed repurchase price
will be calculated in accordance with the terms of such Disqualified
Stock as if such Disqualified Stock were repurchased on any date on which
Debt is required to be determined pursuant to the indenture, and if such
price is based upon, or measured by, the fair market value of such
Disqualified Stock, such fair market value will be determined reasonably
and in good faith by the board of directors of the issuer of such
Disqualified Stock.
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Notwithstanding the foregoing, trade accounts payable and accrued
liabilities arising in the ordinary course of business, any liability for
federal, state or local taxes or other taxes owed by such person and the
exchangeable preferred stock will not be considered Debt for purposes of
this definition. The amount outstanding at any time of any Debt issued
with original issue discount is the aggregate principal amount at
maturity of such Debt, less the remaining unamortized portion of the
original issue discount of such Debt at such time, as determined in
accordance with generally accepted accounting principles.
"Disqualified Stock" means, with respect to any series of debt securities,
any class or series of Capital Stock of Citadel Communications or any Subsidiary
that, either by its terms or by the terms of any security into which it is
convertible or exchangeable or by contract or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole or in
part, on or prior to the maturity date of such series of debt securities.
"Senior Debt" means the principal of and premium, if any, and interest on,
including interest accruing after the filing of a petition initiating any
proceeding pursuant to any bankruptcy law, whether or not allowed, and other
amounts due on or in connection with any Debt of Citadel Communications, other
than Debt that ranks equal in right of payment with the senior subordinated debt
securities, whether outstanding on the date of execution of the senior
subordinated indenture or thereafter incurred, unless, in the case of any
particular Debt, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Debt will be
subordinate in right of payment to any Debt or other general unsecured
obligations of Citadel Communications. Without limiting the generality of the
foregoing, Senior Debt includes the principal of and premium, if any, fees and
interest, including interest accruing after the occurrence of an event of
default or after the filing of a petition initiating any proceeding pursuant to
any bankruptcy law, whether or not allowed, on all obligations of every nature
of Citadel Communications from time to time owed to the lenders under Citadel
Communications' credit facility. Notwithstanding the foregoing, Senior Debt will
not include:
(a) Debt that is Disqualified Stock,
(b) Debt of Citadel Communications to a Subsidiary or any other Affiliate
of Citadel Communications or any of such Affiliate's Subsidiaries, and
(c) that portion of any Debt that, at the time of the incurrence, is
incurred by Citadel Communications in violation of the indenture.
"Specified Senior Debt" means (a) all Senior Debt under Citadel
Communications' credit facility and (b) any other issue of Senior Debt having a
principal amount of at least $10.0 million.
"Subsidiary" means any person a majority of the equity ownership or Voting
Stock of which is at the time owned, directly or indirectly, by Citadel
Communications and/or one or more other Subsidiaries of Citadel Communications.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any person, irrespective of whether
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or not, at the time, stock of any other class or classes has, or might have,
voting power by reason of the happening of any contingency.
CERTAIN COVENANTS
The applicable prospectus supplement will describe any material covenants
in respect of any series of debt securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each indenture restricts Citadel Communications' ability to, among other
things:
- consolidate;
- merge; or
- transfer or lease substantially all of its assets.
Citadel Communications will not consolidate with or merge with or into any
other person or, directly or indirectly, convey, transfer or lease its
properties and assets substantially as an entirety to any person or persons,
unless:
(a) Either (1) Citadel Communications is the surviving corporation or (2)
the person, if other than Citadel Communications, formed by such consolidation
or into which Citadel Communications is merged or the person that acquires by
sale, assignment, transfer, lease or other disposition the properties and assets
of Citadel Communications substantially as an entirety (A) is a corporation,
partnership or trust organized and validly existing under the laws of the United
States, any state thereof or the District of Columbia and (B) expressly assumes,
by a supplemental indenture in form satisfactory to the trustee under each
indenture, all of Citadel Communications' obligations under such indenture and
the debt securities.
(b) Immediately after giving effect to such transaction, no default or
event of default under the indenture has occurred and is continuing.
(c) Citadel Communications delivers, or causes to be delivered, to the
trustee under each indenture, in form and substance reasonably satisfactory to
the trustee under such indenture, an officers' certificate and an opinion of
counsel, each stating that such transaction complies with the requirements of
the indenture.
In the event of any transaction described in and complying with the
conditions listed in the first paragraph of this covenant in which Citadel
Communications is not the continuing obligor under the indentures, the surviving
entity will succeed to, and be substituted for, and may exercise every right and
power of, Citadel Communications under the indentures, and thereafter Citadel
Communications will, except in the case of a lease, be discharged from all its
obligations and covenants under the indentures and debt securities.
EVENTS OF DEFAULT
Each of the following will be events of default under each indenture:
(a) Default in the payment of any interest on any debt security when it
becomes due and payable, and continuance of such default for a period of 30
days.
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(b) Default in the payment of the principal of, or premium, if any, on, any
debt security when due.
(c) Default in payment of any sinking or purchase fund or similar
obligation.
(d) Failure to perform or comply with the indenture provisions described
under "--Consolidation, Merger and Sale of Assets."
(e) Default in the performance, or breach, of any covenant or agreement of
Citadel Communications contained in the indenture, other than a default in the
performance, or breach, of a covenant or agreement that is specifically dealt
with elsewhere in the indenture, and continuance of such default or breach for a
period of 60 days after written notice has been given to Citadel Communications
by the trustee under the indenture or to Citadel Communications and the trustee
under the indenture by the holders of at least 25% in aggregate principal amount
of the debt securities then outstanding.
(f) (1) An event of default has occurred under any mortgage, bond,
indenture, loan agreement or other document evidencing an issue of Debt of
Citadel Communications or any Restricted Subsidiary (as such term will be
defined in the applicable prospectus supplement), which issue has an aggregate
outstanding principal amount of not less than $5.0 million, and such default has
resulted in such Debt becoming, whether by declaration or otherwise, due and
payable prior to the date on which it would otherwise become due and payable or
(2) a default in any payment when due at final maturity of any such Debt.
(g) Failure by Citadel Communications or any of its Restricted Subsidiaries
to pay one or more final judgments the uninsured portion of which exceeds in the
aggregate $5.0 million, which judgment or judgments are not paid, discharged or
stayed for a period of 60 days.
(h) The occurrence of certain events of bankruptcy, insolvency or
reorganization with respect to Citadel Communications or any Restricted
Subsidiary.
If an event of default, other than as specified in clause (h) above, occurs
and is continuing, the applicable trustee or the holders of not less than 25% in
aggregate principal amount of the debt securities of any series then outstanding
may, and the applicable trustee at the request of such holders shall, declare
the principal of all of the outstanding debt securities of any series
immediately due and payable, by a notice in writing to Citadel Communications,
and to the applicable trustee if given by the holders, and, if Citadel
Communications' credit facility is in effect, to the agent under the credit
facility, and, upon any such declaration, such principal will become due and
payable immediately. If an event of default specified in clause (h) above occurs
and is continuing, then such principal will ipso facto become and be immediately
due and payable without any declaration or other act on the part of the trustee
under each indenture or any holder of debt securities.
At any time after a declaration of acceleration under the indentures, but
before a judgment or decree for payment of the money due has been obtained by
the trustee under any indenture, the holders of a majority in aggregate
principal amount of the outstanding debt
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securities, by written notice to Citadel Communications and the applicable
trustee, may rescind such declaration and its consequences if:
(1) Citadel Communications has paid or deposited with the trustee under the
indenture a sum sufficient to pay:
(A) all overdue interest on all debt securities,
(B) all unpaid principal of, and premium, if any, on, any outstanding
debt securities that has become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the debt securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest and overdue principal amount at the rate borne by the
debt securities, and
(D) all sums paid or advanced by the applicable trustee and the
reasonable compensation, expenses, disbursements and advances of that
trustee under the indenture, its agents and counsel, and
(2) all events of default under the indenture, other than the non-payment
of principal of, or premium, if any, on, or interest on the debt securities that
have become due solely by such declaration of acceleration, have been cured or
waived.
No such rescission will affect any subsequent default or impair any right
consequent thereon.
The holders of not less than a majority in aggregate principal amount of
the outstanding debt securities of any series may, on behalf of the holders of
all of the debt securities of such series, waive any past defaults under the
indenture, except a default in the payment of the principal of, and premium, if
any, or interest on any debt security, or in respect of a covenant or provision
that under the indentures cannot be modified or amended without the consent of
the holder of each debt security outstanding.
If a default or an event of default under the indenture occurs and is
continuing and is known to the applicable trustee, the trustee will mail to each
holder of the debt securities notice of the default or event of default within
90 days after the occurrence thereof. Except in the case of a default or an
event of default in payment of principal of, and premium, if any, on, or
interest on any debt securities, the trustee may withhold the notice to the
holders of the debt securities if a committee of its trust officers in good
faith determines that withholding such notice is in the interests of the holders
of the debt securities.
Citadel Communications is required to furnish to the trustee under each
indenture annual statements as to the performance by Citadel Communications of
its obligations under the applicable indenture and as to any default in such
performance. Citadel Communications is also required to notify the trustee under
each indenture within five days of any officer of Citadel Communications having
knowledge of any default.
DEFEASANCE OR COVENANT DEFEASANCE OF INDENTURE
Citadel Communications may, at its option and at any time, terminate its
obligations with respect to the debt securities of a particular series and some
of the covenants in each indenture ("defeasance"), subject to the exceptions set
forth below. Such defeasance means
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that Citadel Communications will be deemed to have paid and discharged the
entire Debt represented by the then outstanding debt securities of the
particular series, except for:
- the rights of holders of then outstanding debt securities of the series
to receive payments in respect of the principal of, and premium, if any,
on, and interest on the debt securities when such payments are due;
- Citadel Communications' obligations to issue temporary debt securities,
register the transfer or exchange of any debt securities, replace
mutilated, destroyed, lost or stolen debt securities, maintain an office
or agency for payments in respect of the debt securities and segregate
and hold such payments in trust;
- the rights, powers, trusts, duties and immunities of the trustee under
the indenture; and
- the defeasance provisions of the applicable indenture.
In addition, Citadel Communications may, at its option and at any time,
elect to terminate the obligations of Citadel Communications with respect to
certain covenants set forth in each indenture and any omission to comply with
such obligations would not constitute a default or an event of default with
respect to the debt securities ("covenant defeasance").
In order to exercise either defeasance or covenant defeasance,
- Citadel Communications must irrevocably deposit or cause to be deposited
with the applicable trustee, as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
holders of the debt securities of a particular series, money in an
amount, or U.S. government securities that through the scheduled payment
of principal and interest thereon will provide money in an amount, or a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay and discharge
the principal of, and premium, if any, on, and interest on the then
outstanding debt securities of that series at maturity, or upon
redemption, if applicable, of such principal or installment of interest;
- no default or event of default has occurred and is continuing on the date
of such deposit or, insofar as an event of bankruptcy under clause (h) of
"--Events of Default" above is concerned, at any time during the period
ending on the 91st day after the date of such deposit;
- such defeasance or covenant defeasance must not result in a breach or
violation of, or constitute a default under, the indenture or any
material agreement or instrument to which Citadel Communications is a
party or by which it is bound or cause the applicable trustee or the
trust so created to be subject to the Investment Company Act of 1940, as
amended;
- in the case of defeasance, Citadel Communications must deliver to the
applicable trustee an opinion of counsel stating that Citadel
Communications has received from, or there has been published by, the
Internal Revenue Service a ruling, or since the date hereof, there has
been a change in applicable federal income tax law, to the effect, and
based thereon such opinion must confirm that, the holders of the
outstanding debt securities will not recognize income, gain or loss for
federal income
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tax purposes as a result of such defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had not
occurred;
- in the case of covenant defeasance, Citadel Communications must have
delivered to the applicable trustee an opinion of counsel to the effect
that the holders of the debt securities outstanding will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred; and
- Citadel Communications must have delivered to the applicable trustee an
officers' certificate and an opinion of counsel, each stating that all
conditions precedent provided for relating to either the defeasance or
the covenant defeasance, as the case may be, have been complied with.
SATISFACTION AND DISCHARGE
The indenture will cease to be of further effect, except as to surviving
rights of registration of transfer or exchange of the debt securities, as
expressly provided for in each indenture, and, upon the request of Citadel
Communications, the trustee under each indenture, at the expense of Citadel
Communications, will execute proper instruments acknowledging satisfaction and
discharge of the indenture when (a) either:
(1) all the debt securities theretofore authenticated and delivered under
the indenture, other than destroyed, lost or stolen debt securities that have
been replaced or paid and debt securities that have been subject to defeasance
as described under "--Defeasance or Covenant Defeasance of Indenture," have been
delivered to the trustee under the indenture for cancellation or
(2) all debt securities not theretofore delivered to the trustee under the
indenture for cancellation:
(A) have become due and payable,
(B) will become due and payable at their maturity within one year, or
(C) are to be called for redemption within one year under arrangements
satisfactory to the trustee under the indenture for the giving of notice of
redemption by the trustee under the indenture in the name, and at the
expense, of Citadel Communications,
and Citadel Communications has irrevocably deposited or caused to be deposited
with the trustee under the applicable indenture funds in trust for the purpose
in an amount sufficient to pay and discharge the entire Debt on such debt
securities not theretofore delivered to the trustee under the indenture for
cancellation, for principal, and premium, if any, on, and interest to the date
of such deposit, in the case of debt securities that have become due and
payable, or to the maturity or redemption date, as the case may be,
(b) Citadel Communications has paid or caused to be paid all sums payable
under the indenture by Citadel Communications, and
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(c) Citadel Communications has delivered to the trustee under the indenture
an officers' certificate and an opinion of counsel, each stating that all
conditions precedent provided in the indenture relating to the satisfaction and
discharge of the indenture have been complied with.
AMENDMENTS AND WAIVERS
Modifications and amendments of each indenture may be made by Citadel
Communications and the applicable trustee with the consent of the holders of a
majority in aggregate outstanding principal amount of the debt securities of
each series affected by the modification; provided, however, that no such
modification or amendment may, without the consent of the holder of each
outstanding debt security affected thereby:
(a) change the maturity of the principal of, or any installment of interest
on, any debt security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or change
the place of payment where or change the coin or currency in which, any debt
security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the maturity
thereof, or, in the case of redemption, on or after the redemption date,
(b) reduce the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is required for any such
amendment or for any waiver of compliance with certain provisions of, or certain
defaults and their consequences provided for under, the indenture,
(c) modify any of the provisions of the applicable indenture relating to
the subordination of the debt securities in a manner materially adverse to the
holders, or
(d) waive a default in the payment of principal of, or premium, if any, or
interest on the debt securities of any series or reduce the percentage or
aggregate principal amount of outstanding debt securities of any series the
consent of whose holders is necessary for waiver of compliance with certain
provisions of the indenture or for waiver of certain defaults.
The holders of a majority in aggregate principal amount of the debt
securities of any series outstanding may waive compliance with certain
restrictive covenants and provisions of the indenture with respect to that
series of debt securities.
Without the consent of any holders, Citadel Communications and the trustee
under the indenture, at any time and from time to time, may enter into one or
more indentures supplemental to the indenture governing the debt securities for
any of the following purposes:
(a) to evidence the succession of another person to Citadel Communications
and the assumption by any such successor of the covenants of Citadel
Communications in the indenture and in the debt securities,
(b) to add to the covenants of Citadel Communications for the benefit of
the holders, or to surrender any right or power conferred upon Citadel
Communications under the indenture,
(c) to add additional events of default,
(d) to provide for uncertificated debt securities in addition to or in
place of the certificated debt securities,
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(e) to evidence and provide for the acceptance of appointment under the
indenture by a successor trustee under the indenture,
(f) to secure the debt securities,
(g) to cure any ambiguity, to correct or supplement any provision in the
indenture that may be defective or inconsistent with any other provision in the
indenture, or to make any other provisions with respect to matters or questions
arising under the indenture, provided that such actions pursuant to this clause
do not adversely affect the interests of the holders in any material respect, or
(h) to comply with any requirements of the SEC in order to effect and
maintain the qualification of the indenture under the Trust Indenture Act.
THE TRUSTEE
The initial trustee under each indenture will be The Bank of New York. The
Bank of New York will also be the initial paying agent and registrar for the
debt securities. The Bank of New York is a lender under Citadel Broadcasting's
credit facility. The Bank of New York is also the trustee for Citadel
Broadcasting's 9 1/4% Senior Subordinated Notes due 2007 and 10 1/4% Senior
Subordinated Notes due 2008 and transfer agent for Citadel Broadcasting's
13 1/4% Exchangeable Preferred Stock.
The indenture provides that, except during the continuance of an event of
default under the indenture, the trustee under the indenture will perform only
such duties as are specifically set forth in the indenture. Under the indenture,
the holders of a majority in outstanding principal amount of the debt securities
will have the right to direct the time, method and place of conducting any
proceeding or exercising any remedy available to the trustee under the
indenture, subject to certain exceptions. If an event of default has occurred
and is continuing, the trustee under the indenture will exercise such rights and
powers vested in it under the indenture and use the same degree of care and
skill in its exercise as a prudent person would exercise under the circumstances
in the conduct of such person's own affairs.
The indenture and provisions of the Trust Indenture Act incorporated by
reference in the indenture, contain limitations on the rights of the trustee
under the indenture, should it become a creditor of Citadel Communications, to
obtain payment of claims in certain cases or to realize on certain property
received by it in respect of any such claims, as security or otherwise. The
trustee under the indenture is permitted to engage in other transactions.
However, if the trustee under the indenture acquires any prohibited conflicting
interest, it must eliminate the conflict or resign.
GOVERNING LAW
The indentures and the debt securities will be governed by, and construed
in accordance with, the laws of the State of New York.
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DESCRIPTION OF THE PREFERRED STOCK
AND THE DEPOSITARY SHARES REPRESENTING
FRACTIONAL SHARES OF PREFERRED STOCK
This section describes the general terms and provisions of the preferred
stock that Citadel Communications may offer by this prospectus. The applicable
prospectus supplement will describe the specific terms of the series of
preferred stock then offered, and the terms and provisions described in this
section will apply only to the extent not superseded by the terms of the
applicable prospectus supplement.
This section is only a summary of the preferred stock that Citadel
Communications may offer. Currently, Citadel Communications has no outstanding
preferred stock. We urge you to read carefully Citadel Communications'
certificate of incorporation and the certificate of designation Citadel
Communications will file in relation to an issue of any particular series of
preferred stock before you buy any preferred stock.
BOOK-ENTRY SECURITIES
The preferred stock may be issued in whole or in part in the form of one or
more global securities. See "Securities We May Issue" for additional information
about your limited rights as the beneficial owner of a global security.
TERMS OF FUTURE SERIES OF PREFERRED STOCK
The Board of Directors of Citadel Communications may, without further
action of the stockholders, issue up to 20,000 shares of undesignated preferred
stock in one or more classes or series. Any undesignated preferred stock issued
by Citadel Communications may:
- rank prior to the common stock as to dividend rights, liquidation
preference or both;
- have full or limited voting rights; and
- be convertible into shares of common stock or other securities.
The powers, designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or restrictions,
including dividend rights, voting rights, conversion rights, terms of redemption
and liquidation preferences, of the preferred stock of each series will be fixed
or designated by the Board of Directors of Citadel Communications pursuant to a
certificate of designation. We will describe in the applicable prospectus
supplement the specific terms of a particular series of preferred stock, which
will include the following:
- the maximum number of shares in the series;
- the designation of the series;
- the terms of any voting rights of the series;
- the dividend rate, if any, on the shares of such series, the conditions
and dates upon which such dividends shall be payable, the preference or
relation which such dividends shall bear to the dividends payable on any
other class or classes or on any
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other series of capital stock, and whether such dividends shall be
cumulative or non-cumulative;
- whether the shares of such series shall be redeemable by Citadel
Communications and, if so, the times, prices and other terms and
conditions of such redemption;
- the rights of the holders of shares of such series upon the liquidation,
dissolution or winding up of Citadel Communications;
- whether or not the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to
the purchase or redemption of the shares of such series for retirement or
to other corporate purposes and the terms and provisions relative to the
operation thereof;
- whether or not the shares of such series shall be convertible into, or
exchangeable for, (a) debt securities of Citadel Communications, (b)
shares of any other class or classes of stock of Citadel Communications,
or of any other series of the same or different class of stock, or (c)
shares of any class or series of stock of any other corporation, and if
so convertible or exchangeable, the price or prices or the rate or rates
of conversion or exchange and the method, if any, of adjusting the same;
- the limitations and restrictions, if any, to be effective while any
shares of such series are outstanding upon the payment of dividends or
making of other distributions on, and upon the purchase, redemption or
other acquisition by Citadel Communications of, the Citadel
communications' common stock, or any other class or classes of stock of
Citadel Communications ranking junior to the shares of such series either
as to dividends or upon liquidation;
- the conditions or restrictions, if any, upon the creation of indebtedness
of Citadel Communications or upon the issue of any additional stock,
including additional shares of such series or of any other series or of
any other class, ranking on a parity with or prior to the shares of such
series as to dividends or distribution of assets on liquidation,
dissolution or winding up;
- whether fractional interests in shares of the series will be offered in
the form of depositary shares as described below under "--Depositary
Shares;"
- any other preference and relative, participating, optional or other
special rights or qualifications, limitations or restrictions thereof;
and
- Citadel Communications' ability to modify the rights of holders otherwise
than by a vote of a majority or more of the shares outstanding.
The preferred stock will, when issued, be fully paid and nonassessable.
Citadel Communications will select the transfer agent, registrar and dividend
disbursement agent for a series of preferred stock and will describe its
selection in the applicable prospectus supplement. The registrar for shares of
preferred stock will send notices to stockholders of any meetings at which
holders of the preferred stock have the right to elect directors of Citadel
Communications or to vote on any other matter of Citadel Communications.
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DEPOSITARY SHARES
This section describes the general terms and provisions of the depositary
shares we may offer. The applicable prospectus supplement will describe the
specific terms of the depositary shares offered through that prospectus
supplement, including, but not limited to, the title of the depositary shares
and the deposited security, the amount of deposited securities represented by
one depositary share, and any general terms outlined in this section that will
not apply to those depositary shares.
We have summarized certain terms and provisions of the depositary
agreement, the depositary shares and the depositary receipts in this section.
The summary is not complete. We have also filed the form of depositary
agreement, including the form of depositary receipt, as an exhibit to the
registration statement, of which this prospectus is a part. You should read the
forms of depositary agreement and depositary receipt relating to a series of
preferred stock for additional information before you buy any depositary shares
that represent preferred stock of such series.
General. Citadel Communications may offer fractional interests in preferred
stock rather than full shares of preferred stock. If this occurs, Citadel
Communications will provide for the issuance by a depositary to the public of
receipts for depositary shares, each of which will represent a fractional
interest in a share of a particular series of preferred stock.
The stock of any series of preferred stock underlying the depositary shares
will be deposited under a separate depositary agreement between us and a
depositary. For these purposes, the depositary will be a bank or trust company
having its principal office in the United States and having a combined capital
and surplus of at least $50 million. Citadel Communications will name the
depositary and give the address of its principal executive office in the
applicable prospectus supplement. Subject to the terms of the depositary
agreement, each owner of a depositary share will have a fractional interest in
all the rights and preferences of the preferred stock underlying such depositary
shares. Those rights include any dividend, voting, redemption, conversion and
liquidation rights.
The depositary shares will be evidenced by depositary receipts issued under
the depositary agreement. If you purchase fractional interests in shares of the
related series of preferred stock, you will receive depositary receipts as
described in the applicable prospectus supplement. While the final depositary
receipts are being prepared, we may order the depositary to issue temporary
depositary receipts substantially identical to the final depositary receipts in
final form. The holders of the temporary depositary receipts will be entitled to
the same rights as if they held the depositary receipts although not in final
form. Holders of the temporary depositary receipts can exchange them for the
final depositary receipts at our expense.
If you surrender depositary receipts at the principal office of the
depositary, unless the related depositary shares have previously been called for
redemption, you are entitled to receive at such office the number of shares of
preferred stock and any money or other property represented by such depositary
shares. Citadel Communications will not issue partial shares of preferred stock.
If you deliver depositary receipts evidencing a number of depositary shares that
represent more than a whole number of shares of preferred stock, the depositary
will issue you a new depositary receipt evidencing such excess number of
depositary shares at the same time that the shares of preferred stock are
withdrawn. Holders of preferred stock received in exchange for depositary shares
will no longer be entitled to
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deposit such preferred stock under the depositary agreement or to receive
depositary shares in exchange for such preferred stock.
Dividends and Other Distributions. The depositary will distribute all cash
dividends or other cash distributions received with respect to the preferred
stock to the record holders of depositary shares representing the preferred
stock in proportion to the number of depositary shares owned by the holders on
the relevant record date. The depositary will distribute only the amount that
can be distributed without attributing to any holder of depositary shares a
fraction of one cent. The balance not distributed will be added to and treated
as part of the next sum received by the depositary for distribution to record
holders of depositary shares.
If there is a distribution other than in cash, the depositary will
distribute property to the holders of depositary shares, unless the depositary
determines that it is not feasible to make such distribution. If this occurs,
the depositary may, with Citadel Communications' approval, sell the property and
distribute the net proceeds from the sale to the holders of depositary shares.
The depositary agreement will also contain provisions relating to how any
subscription or similar rights offered by us to the holders of the preferred
stock will be made available to the holders of depositary shares.
Conversion and Exchange. If any series of preferred stock underlying the
depositary shares is subject to conversion or exchange, the applicable
prospectus supplement will describe the rights or obligations of each record
holder of depositary receipts to convert or exchange the depositary shares.
Redemption of Depositary Shares. If the series of the preferred stock
underlying the depositary shares is subject to redemption, the depositary shares
will be redeemed from the redemption proceeds, in whole or in part, of such
series of the preferred stock held by the depositary. The depositary will mail
notice of redemption between 30 to 60 days prior to the date fixed for
redemption to the record holders of the depositary shares to be redeemed at
their addresses appearing in the depositary's records. The redemption price per
depositary share will bear the same relationship to the redemption price per
share of preferred stock that the depositary share bears to the underlying
preferred share. Whenever Citadel Communications redeems preferred stock held by
the depositary, the depositary will redeem, as of the same redemption date, the
number of depositary shares representing the preferred stock redeemed. If less
than all the depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by lot or pro rata as determined by the depositary.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be outstanding. When the depositary shares are no
longer outstanding, all rights of the holders will cease, except the right to
receive money or other property that the holders of the depositary shares were
entitled to receive upon such redemption. Such payments will be made when
holders surrender their depositary receipts to the depositary.
Voting the Preferred Stock. Upon receipt of notice of any meeting at which
the holders of the preferred stock are entitled to vote, the depositary will
mail information about the meeting contained in the notice to the record holders
of the depositary shares relating to such preferred stock. Each record holder of
such depositary shares on the record date, which will be the same date as the
record date for the preferred stock, will be entitled to instruct the
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depositary as to how the preferred stock underlying the holder's depositary
shares should be voted.
The depositary will try, if practical, to vote the number of shares of
preferred stock underlying the depositary shares according to the instructions
received. We will agree to take all action requested and deemed necessary by the
depositary in order to enable the depositary to vote the preferred stock in that
manner. The depositary will not vote any preferred stock for which it does not
receive specific instructions from the holder of the depositary shares relating
to such preferred stock.
Taxation. Provided that each obligation in the depositary agreement and any
related agreement is performed in accordance with its terms, owners of
depositary shares will be treated for U.S. federal income tax purposes as if
they were owners of the shares of preferred stock represented by the depositary
shares. Accordingly, for federal income tax purposes they will have the income
and deductions to which they would be entitled if they were holders of the
preferred stock. In addition:
- No gain or loss will be recognized for U.S. federal income tax purposes
upon withdrawal of preferred stock in exchange for depositary shares as
provided in the depositary agreement.
- The tax basis of each share of preferred stock to an exchanging owner of
depositary shares will, upon the exchange, be the same as the aggregate
tax basis of the depositary shares exchanged for such preferred stock.
- The holding period for the preferred stock, in the hands of an exchanging
owner of depositary shares who held the depositary shares as a capital
asset at the time of the exchange, will include the period that the owner
held such depositary shares.
Amendment and Termination of the Depositary Agreement. The form of
depositary receipt evidencing the depositary shares and any provision of the
depositary agreement may be amended by agreement between Citadel Communications
and the depositary at any time. However, any amendment that materially and
adversely alters the rights of the existing holders of depositary shares will
not be effective unless approved by the record holders of at least a majority of
the depositary shares then outstanding. A depositary agreement may be terminated
by Citadel Communications or the depositary only if:
- All outstanding depositary shares relating to the depositary agreement
have been redeemed.
- There has been a final distribution on the preferred stock of the
relevant series in connection with the liquidation, dissolution or
winding up of the business and the distribution has been distributed to
the holders of the related depositary shares.
Charges of Depositary. Citadel Communications will pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements. We will pay associated charges of the depositary for
the initial deposit of the preferred stock and any redemption of the preferred
stock. Holders of depositary shares will pay transfer and other taxes and
governmental charges and any other charges that are stated to be their
responsibility in the depositary agreement.
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Miscellaneous. Citadel Communications will forward to the holders of
depositary shares all reports and communications that it must furnish to the
holders of the preferred stock.
Neither the depositary nor Citadel Communications will be liable if the
depositary is prevented or delayed by law or any circumstance beyond its control
in performing its obligations under the depositary agreement. Citadel
Communications' obligations and the depositary's obligations under the
depositary agreement will be limited to performance in good faith of duties set
forth in the depositary agreement. Neither the depositary nor Citadel
Communications will be obligated to prosecute or defend any legal proceeding
connected with any depositary shares or preferred stock unless satisfactory
indemnity is furnished to Citadel Communications and/or the depositary. Citadel
Communications and the depositary may rely upon written advice of counsel or
accountants, or information provided by persons presenting preferred stock for
deposit, holders of depositary shares or other persons believed to be competent
and on documents believed to be genuine.
Resignation and Removal of Depositary. The depositary may resign at any
time by delivering notice to Citadel Communications. Citadel Communications may
also remove the depositary at any time. Resignations or removals will take
effect upon the appointment of a successor depositary and its acceptance of the
appointment. The successor depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States of America and having a
combined capital and surplus of at least $50 million.
DESCRIPTION OF WARRANTS
Citadel Communications may issue warrants for the purchase of debt
securities, shares of preferred stock or common stock. Warrants may be issued
independently or together with any debt securities, shares of preferred stock or
common stock offered by any prospectus supplement and may be attached to or
separate from the debt securities, shares of preferred stock or common stock.
The warrants are to be issued under warrant agreements to be entered into
between Citadel Communications and The Bank of New York, as warrant agent, or
such other bank or trust company as is named in the prospectus supplement
relating to the particular issue of warrants. The warrant agent will act solely
as an agent of Citadel Communications in connection with the warrants and will
not assume any obligation or relationship of agency or trust for or with any
holders of warrants or beneficial owners of warrants. This section is a summary
of the material terms of the warrant agreement; it does not describe every
aspect of the warrants. We urge you to read the warrant agreement because it,
and not this description, defines your rights as a warrant holder.
GENERAL
If warrants are offered, the prospectus supplement will describe the terms
of the warrants, including the following:
- the offering price;
- the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants and the price
at which such debt securities may be purchased upon such exercise;
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- the designation, number of shares and terms of the preferred stock
purchasable upon exercise of the preferred stock warrants and the price
at which such shares of preferred stock may be purchased upon such
exercise;
- the designation, number of shares and terms of the common stock
purchasable upon exercise of the common stock warrants and the price at
which such shares of common stock may be purchased upon such exercise;
- if applicable, the designation and terms of the debt securities,
preferred stock or common stock with which the warrants are issued and
the number of warrants issued with each such debt security or share of
preferred stock or common stock;
- if applicable, the date on and after which the warrants and the related
debt securities, preferred stock or common stock will be separately
transferable;
- the date on which the right to exercise the warrants shall commence and
the date on which such right shall expire;
- whether the warrants will be issued in registered or bearer form;
- a discussion of certain federal income tax, accounting and other special
considerations, procedures and limitations relating to the warrants; and
- any other terms of the warrants.
Warrants may be exchanged for new warrants of different denominations. If
in registered form, warrants may be presented for registration of transfer, and
may be exercised at the corporate trust office of the Warrant Agent or any other
office indicated in the prospectus supplement. Before the exercise of their
warrants, holders of warrants will not have any of the rights of holders of the
securities purchasable upon such exercise, including the right to receive
payments of principal of, any premium on, or any interest on, the debt
securities purchasable upon such exercise or to enforce the covenants in the
indentures or to receive payments of dividends, if any, on the preferred stock
or common stock purchasable upon such exercise or to exercise any applicable
right to vote. If Citadel Communications maintains the ability to reduce the
exercise price of any stock warrant and such right is triggered, Citadel
Communications will comply with the federal securities laws, including Rule
14e-4 under the Exchange Act, to the extent applicable.
EXERCISE OF WARRANTS
Each warrant will entitle the holder to purchase such principal amount of
debt securities or such number of shares of preferred stock or common stock at
such exercise price as shall in each case be set forth in, or can be calculated
according to information contained in, the prospectus supplement relating to the
warrant. Warrants may be exercised at such times as are set forth in the
prospectus supplement relating to such warrants. After the close of business on
the expiration date of the warrants, or such later date to which such expiration
date may be extended by Citadel Communications, unexercised warrants will become
void.
Subject to any restrictions and additional requirements that may be set
forth in the prospectus supplement, warrants may be exercised by delivery to the
warrant agent of the certificate evidencing such warrants properly completed and
duly executed and of payment as provided in the prospectus supplement of the
amount required to purchase the debt securities
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or shares of preferred stock or common stock purchasable upon such exercise. The
exercise price will be the price applicable on the date of payment in full, as
set forth in the prospectus supplement relating to the warrants. Upon receipt of
such payment and the certificate representing the warrants to be exercised,
properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the prospectus supplement,
Citadel Communications will, as soon as practicable, issue and deliver the debt
securities or shares of preferred stock or common stock purchasable upon such
exercise. If fewer than all of the warrants represented by such certificate are
exercised, a new certificate will be issued for the remaining amount of
warrants.
ADDITIONAL PROVISIONS
The exercise price payable and the number of shares of common stock or
preferred stock purchasable upon the exercise of each stock warrant will be
subject to adjustment in certain events, including the issuance of the stock
dividend to holders of common stock or preferred stock, respectively, or a
combination, subdivision or reclassification of common stock or preferred stock,
respectively. In lieu of adjusting the number of shares of common stock or
preferred stock purchasable upon exercise of each stock warrant, Citadel
Communications may elect to adjust the number of stock warrants. No adjustment
in the number of shares purchasable upon exercise of the stock warrants will be
required until cumulative adjustments require an adjustment of at least 1%
thereof. Citadel Communications may, at its option, reduce the exercise price at
any time. No fractional shares will be issued upon exercise of stock warrants,
but Citadel Communications will pay the cash value of any fractional shares
otherwise issuable. Notwithstanding the foregoing, in case of any consolidation,
merger, or sale or conveyance of the property of Citadel Communications as an
entirety or substantially as an entirety, the holder of each outstanding stock
warrant shall have the right upon the exercise thereof to the kind and amount of
shares of stock and other securities and property, including cash, receivable by
a holder of the number of shares of common stock or preferred stock into which
such stock warrants were exercisable immediately prior thereto.
NO RIGHTS AS STOCKHOLDERS
Holders of stock warrants will not be entitled, by virtue of being such
holders, to vote, to consent, to receive dividends, to receive notice as
stockholders with respect to any meeting of stockholders for the election of
directors of Citadel Communications or any other matter, or to exercise any
rights whatsoever as stockholders of Citadel Communications.
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DESCRIPTION OF STOCK PURCHASE
CONTRACTS AND STOCK PURCHASE UNITS
Citadel Communications may issue stock purchase contracts, which are
contracts obligating holders to purchase from Citadel Communications, and
Citadel Communications to sell to the holders, a specified number of shares of
common stock or preferred stock at a future date or dates. The price per share
of common stock or preferred stock may be fixed at the time the stock purchase
contracts are issued or may be determined by reference to a specific formula set
forth in the stock purchase contracts. The formula may include anti-dilution
provisions to adjust the number of shares issuable pursuant to stock purchase
contracts upon events that would otherwise dilute the interests of the holders.
The stock purchase contracts may be issued separately or as a part of stock
purchase units each representing ownership of a stock purchase contract and debt
securities, preferred securities of the CCC Capital Trusts or debt obligations
of the United States of America or its agencies or instrumentalities, securing
the holders' obligations to purchase the common stock or the preferred stock
under the stock purchase contracts.
When the stock purchase units include the debt obligations of the United
States of America or its agencies or instrumentalities, the principal of the
debt obligations, when paid at maturity, will automatically be applied to
satisfy the holder's obligation to purchase common stock or preferred stock
under the stock purchase contracts unless the holder of the stock purchase units
settles its obligations under the stock purchase contracts early through the
delivery of consideration to Citadel Communications or its agent in the manner
discussed below.
Except as otherwise described in the applicable prospectus supplement, in
the case of stock purchase units that include preferred securities, in the
absence of any such early settlement or the election by a holder to pay the
consideration specified in the stock purchase contracts, the preferred
securities will automatically be presented to the applicable CCC Capital Trust
for redemption at 100% of face or liquidation value and the CCC Capital Trust
will present junior subordinated debt securities in an equal principal amount to
Citadel Communications for redemption at 100% of principal amount. Amounts
received in respect of such redemption will automatically be transferred to
Citadel Communications and applied to satisfy in full the holder's obligation to
purchase common stock or preferred stock under the stock purchase contracts. The
stock purchase contracts may require Citadel Communications to make periodic
payments to the holders of the stock purchase units or vice versa, and such
payments may be unsecured or refunded on some basis. The stock purchase
contracts may require holders to secure their obligations thereunder in a
specified manner.
Except as otherwise described in the applicable prospectus supplement,
holders of stock purchase units may be entitled to settle the underlying stock
purchase contracts prior to the stated settlement date by surrendering the
certificate evidencing the stock purchase units, accompanied by the payment due,
in the form and calculated pursuant to the formula as may be prescribed in the
stock purchase contracts and described in the applicable prospectus supplement.
Upon early settlement, the holder would receive the number of shares of common
stock or preferred stock deliverable under the stock purchase contracts, subject
to adjustment in certain cases. Holders of stock purchase units may be entitled
to exchange their stock purchase units together with appropriate collateral, for
separate stock purchase contracts and preferred securities, debt securities or
debt obligations of the United States of America or its agencies or
instrumentalities. The applicable prospectus supplement will describe in more
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detail the provisions of such exchange. In the event of either such early
settlement or exchange, the preferred securities, debt securities, or debt
obligations that were pledged as security for the obligation of the holder to
perform under the stock purchase contracts would be transferred to the holder
free and clear of Citadel Communications' security interest therein.
The applicable prospectus supplement will describe the terms of any stock
purchase contracts or stock purchase units including differences, if any, from
the term described above.
DESCRIPTION OF THE CITADEL COMMUNICATIONS COMMON STOCK
GENERAL
Citadel Communications is authorized to issue 200,000,000 shares of common
stock. The following discussion describes provisions of Citadel Communications'
Certificate of Incorporation and Bylaws and of Nevada's laws on private
corporations, Chapter 78 of the Nevada Revised Statutes.
VOTING RIGHTS OF COMMON STOCK
Holders of the common stock are entitled to one vote per share on all
matters submitted to a vote of stockholders generally. As of December 6, 1999,
ABRY Broadcast Partners II, L.P. beneficially owned 3,400,035 shares of common
stock, representing approximately 10.7% of the common stock then issued and
outstanding. The voting trustee who votes such shares will have the power to
significantly influence the election of directors and other matters submitted to
a vote of stockholders. The voting power of the voting trustee may hinder or
delay a change in control of Citadel Communications and may have an anti-
takeover effect.
DIVIDENDS ON COMMON STOCK
The holders of the common stock are entitled to receive, pro rata,
dividends as may be declared by Citadel Communications' Board of Directors out
of funds legally available for the payment of dividends.
OTHER PROVISIONS APPLICABLE TO THE COMMON STOCK
There are no preemptive rights to subscribe for any additional securities
which Citadel Communications may issue. There are no redemption provisions or
sinking fund provisions applicable to the common stock, nor is the common stock
subject to calls or assessments by Citadel Communications.
In the event of any liquidation, dissolution or winding-up of the affairs
of Citadel Communications, holders of common stock will be entitled to share
ratably in the assets of Citadel Communications remaining after payment or
provision for payment of all of Citadel Communications' debts and obligations
and liquidation payments to holders of any outstanding shares of undesignated
preferred stock that has a liquidation preference.
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The Board of Directors of Citadel Communications may, without further
action of the stockholders, issue up to 20,000 shares of undesignated preferred
stock that may rank prior to the common as to dividend rights or liquidation
preference. The issuance of undesignated preferred stock could have the effect
of making it more difficult for a third party to acquire, or of discouraging a
third party from acquiring, or seeking to acquire, a significant portion of the
outstanding common stock.
CERTAIN ANTI-TAKEOVER EFFECTS
Certificate of Incorporation and Bylaws. The provisions of Citadel
Communications' Certificate of Incorporation and Bylaws summarized in the
following paragraphs may be deemed to have anti-takeover effects. These
provisions may have the effect of discouraging a future takeover attempt which
is not approved by the Board of Directors, but which individual stockholders may
deem to be in their best interests or in which stockholders may receive a
substantial premium for their share over then-current market prices. As a
result, stockholders who might desire to participate in such a transaction may
not have an opportunity to do so.
Number of Directors, Removal and Filling Vacancies. Citadel Communications'
Certificate of Incorporation and Bylaws provide that the number of directors
shall not exceed seven and shall be fixed from time to time with the consent of
a majority of the Board of Directors. The Certificate of Incorporation also
provides that directors may only be removed with cause. Removal of a director
requires the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of Citadel Communications then entitled to
vote at an election of directors. These provisions prevent stockholders from
removing any incumbent director without cause and allow a majority of the
incumbent directors to add additional directors without approval of stockholders
until the next annual meeting of stockholders at which directors are elected.
Meetings of Stockholders. Citadel Communications' Bylaws provide that a
special meeting of stockholders may be called only by the Chairman or the Board
of Directors unless otherwise required by law. Citadel Communications' Bylaws
provide that only those matters set forth in the notice of the special meeting
may be considered or acted upon at that special meeting unless otherwise
provided by law. In addition, Citadel Communications' Bylaws set forth certain
advance notice and informational requirements and time limitations on any
director nomination or new proposal which a stockholder wishes to make at an
annual meeting of stockholders.
No Stockholder Action by Written Consent. Citadel Communications' Bylaws
provide that any action required or permitted to be taken by the stockholders of
Citadel Communications at an annual or special meeting of stockholders must be
effected at a duly called meeting and may not be taken or effected by a written
consent of stockholders in lieu of a duly called meeting.
Foreign Ownership. Citadel Communications' Certificate of Incorporation
permits restriction on the ownership, voting and transfer of Citadel
Communications' capital stock in accordance with the Communications Act and the
rules of the FCC, to prohibit ownership of more than 20% of Citadel
Communications' outstanding capital stock, or more than 20% of the voting rights
it represents, by or for the account of aliens or corporations otherwise subject
to domination or control by aliens. The Certificate of Incorporation also
authorizes
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the Board of Directors to prohibit any transfer of capital stock that would
cause Citadel Communications to violate this prohibition. The Board of Directors
may also prohibit the ownership, voting or transfer of any portion of its
outstanding capital stock to the extent the ownership, voting or transfer of
such portion would cause Citadel Communications to violate, or would otherwise
result in violation of, any provision of the Communications Act or the rules,
regulations and policies of the FCC under the Communications Act. No
stockholders may exercise any voting rights which would cause Citadel
Communications to be in violation of the rules, regulations or policies of the
FCC.
Nevada General Corporation Law. The following provisions of Chapter 78 of
the Nevada Revised Statutes may delay or make more difficult acquisitions or
changes of control of Citadel Communications and may make it more difficult to
accomplish transactions that stockholders may otherwise believe to be in their
best interests. These provisions may also have the effect of preventing changes
in Citadel Communications' management. The Certificate of Incorporation and
Bylaws do not exclude it from these provisions of Chapter 78 of the Nevada
Revised Statutes.
Control Share Acquisitions. Under Sections 78.378 to 78.3793 of Chapter 78
of the Nevada Revised Statutes, an acquiring person, who acquires a controlling
interest in an issuing corporation may not exercise voting rights on any control
shares unless the voting rights are conferred by a majority vote of the
disinterested stockholders of the issuing corporation at an annual meeting or at
a special meeting of such stockholders held upon the request and at the expense
of the acquiring person. If the control shares are accorded full voting rights
and the acquiring person acquires control shares with a majority or more of all
the voting power, any stockholder, other than the acquiring person, who does not
vote for authorizing voting rights for the control shares, is entitled to demand
payment for the fair value of their shares, and the corporation must comply with
the demand.
For the above provisions, acquiring person means, subject to exceptions,
any person who, individually or in association with others, acquires or offers
to acquire, directly or indirectly, a controlling interest in an issuing
corporation. Controlling interest means the ownership of outstanding voting
shares of an issuing corporation sufficient to enable the acquiring person,
individually or in association with others, directly or indirectly, to exercise:
- one-fifth or more but less than one-third of the voting power of the
issuing corporation in the election of directors,
- one-third or more but less than a majority of the voting power of the
issuing corporation in the election of directors, and/or
- a majority or more of the voting power of the issuing corporation in the
election of directors.
These provisions are triggered as a stockholder moves from one level to the
next. Voting rights on the control shares must be conferred by a majority of the
disinterested stockholders as each threshold is reached and/or exceeded. Control
shares means those outstanding voting shares of an issuing corporation which an
acquiring person:
- acquires or offers to acquire in an acquisition, or
- acquires within 90 days immediately preceding the date when the acquiring
person became an acquiring person.
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Subject to certain exceptions, an acquisition is the direct or indirect
acquisition of a controlling interest. Issuing corporation means a corporation
that is organized in Nevada, has 200 or more stockholders, at least 100 of whom
are stockholders of record and having an address in Nevada which appears in the
stock ledger of the corporation, and does business in Nevada directly or through
an affiliated corporation.
The provisions described above do not apply if the articles of
incorporation or bylaws of the corporation in effect on the 10th day following
the acquisition of a controlling interest by an acquiring person provide that
the provisions do not apply. The Certificate of Incorporation and Bylaws do not
exclude Citadel Communications from the restrictions imposed by such provisions.
However, unless and until Citadel Communications has at least 100 stockholders
of record who have an address in Nevada which appears in the stock ledger of
Citadel Communications, this act will not apply to Citadel Communications.
Certain Business Combinations. In general, Sections 78.411 to 78.444 of
Chapter 78 of the Nevada Revised Statutes restrict the ability of a Nevada
corporation that has 200 or more stockholders to engage in any combination with
an interested stockholder for three years following the date of the transaction
in which the stockholder became an interested stockholder, unless the
combination or the triggering purchase of shares is approved by the board of
directors of the corporation before the date of the triggering purchase. If the
combination or triggering purchase was not so approved, the interested
stockholder may effect a combination after the three-year period only if such
stockholder receives approval from a majority of the disinterested shares or the
offer meets certain fair price criteria. Interested stockholder means any
person, or its subsidiaries, who is:
- the beneficial owner, directly or indirectly, of 10% or more of the
voting power of the outstanding voting shares of the corporation, or
- an affiliate or associate of the corporation and, at any time within
three years immediately before the date in question, was the beneficial
owner, directly or indirectly, of 10% or more of the voting power of the
then outstanding shares of the corporation.
The provisions described do not apply to corporations that so elect in a charter
amendment approved by a majority of the disinterested shares. Such a charter
amendment, however, would not become effective for 18 months after its passage
and would apply only to stock acquisitions occurring after its effective date.
Citadel Communications' Certificate of Incorporation does not exclude it from
the restrictions imposed by these provisions.
Directors' Duties. Section 78.138 of Chapter 78 of the Nevada Revised
Statutes allows directors and officers, in exercising their respective powers to
further the interests of the corporation, to consider the interests of the
corporation's employees, suppliers, creditors and customers. They can also
consider the economy of the state and the nation, the interests of the community
and of society and the long and short-term interests of the corporation and its
stockholders, including the possibility that these interests may be best served
by the continued independence of the corporation. Directors may resist a change
or potential change in control if the directors determine that the change or
potential change is opposed to or not in the best interest of the corporation.
In so determining, the board of directors may consider the interests described
above or have reasonable grounds to believe that, within a reasonable time, any
debt created as a result of the change in control would cause the assets of the
corporation or any successor to be less than the liabilities or would render the
corporation or
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any successor insolvent or lead to bankruptcy proceedings. Nevada law presumes
that, in business matters, directors have acted in good faith, on an informed
basis and with a view to the interests of the corporation.
TRANSFER AGENT AND REGISTRAR
BankBoston, N.A. is the transfer agent and registrar for Citadel
Communications' common stock.
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DESCRIPTION OF THE CCC CAPITAL TRUSTS PREFERRED SECURITIES
Either or both of the CCC Capital Trust may offer preferred securities
which represent preferred undivided beneficial interests in the assets of the
issuing CCC Capital Trust. In connection with an offering of preferred
securities, the issuing CCC Capital Trust will sell its common securities to
Citadel Communications which common securities represent common undivided
beneficial interests in the assets of the issuing CCC Capital Trust. The issuing
CCC Capital Trust will use the proceeds from any sale of preferred securities
and common securities to buy junior subordinated debt securities from Citadel
Communications or Citadel Broadcasting with payment terms similar to those of
the preferred securities. Payments on Citadel Broadcasting's junior subordinated
securities will be guaranteed on a subordinated basis by Citadel Communications.
If a CCC Capital Trust sells preferred securities and common securities, Citadel
Communications or Citadel Broadcasting, as the case may be, will pay principal
and interest on the junior subordinated debt securities to the issuing CCC
Capital Trust, which the issuing CCC Capital Trust will distribute to the
holders of the preferred securities. As long as no event of default under the
junior subordinated indenture has occurred and is continuing, the issuer of the
junior subordinated debt securities has the right under the junior subordinated
indenture to defer the payment of interest on the junior subordinated debt
securities at any time. Furthermore, if the issuer of the junior subordinated
debt securities defers interest payments, the CCC Capital Trust will defer the
payment of distributions on the preferred securities during the related period.
For additional information on our ability to defer interest payments and the CCC
Capital Trust's ability to defer distributions, see "Description of the Junior
Subordinated Debt Securities--Interest," and "--Distributions," "--Extension
Periods" and "--Extension Period Restrictions." Citadel Communications will
fully and unconditionally guarantee the preferred securities based on several
obligations described in this prospectus. See "Description of the Guarantee and
Expense Agreement Relating to the Preferred Securities."
This section and the following three sections describe the various aspects
of an offering of preferred securities, including:
- the preferred securities and the common securities themselves;
- the corresponding junior subordinated debt securities, the indenture
under which they are issued and the guarantee of Citadel Broadcasting's
junior subordinated debt securities by Citadel Communications;
- the preferred securities guarantee and the expense agreement, which
together with the amended and restated declaration of trust, the junior
subordinated debt securities and the indenture constitute a full and
unconditional guarantee of the preferred securities by Citadel
Communications; and
- the relationship among the preferred securities, the junior subordinated
debt securities, the preferred securities guarantee and the expense
agreement.
The preferred securities may be issued in whole or in part in the form of
one or more global securities. See "Securities We May Issue--Legal Ownership of
Securities" for additional information about your limited rights as the
beneficial owner of a global security.
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The applicable prospectus supplement will contain a description of several
important tax and accounting matters of which you should be aware before
investing in the preferred securities.
This section summarizes the main provisions of the preferred securities and
the amended and restated declaration of trust, but it does not describe all the
provisions. Consequently, this summary is qualified by reference to the full
text of the amended and restated declaration of trust. We have filed a form of
the amended and restated declaration of trust as an exhibit to our registration
statement of which this prospectus is a part.
THE TERM INDENTURE, WHEN USED IN THIS SECTION, REFERS ONLY TO THE INDENTURE
FOR THE JUNIOR SUBORDINATED DEBT SECURITIES OF CITADEL COMMUNICATIONS OR CITADEL
BROADCASTING, AS THE CASE MAY BE, AND NOT TO THE INDENTURES FOR SENIOR AND
SENIOR SUBORDINATED DEBT SECURITIES OF CITADEL COMMUNICATIONS. THE TERM ISSUER,
WHEN USED IN THIS SECTION, REFERS TO THE ISSUER OF THE JUNIOR SUBORDINATED DEBT
SECURITIES, WHICH COULD BE CITADEL COMMUNICATIONS OR CITADEL BROADCASTING.
This section uses terms that are defined in the amended and restated
declaration of trust and the indenture. Unless we define those terms in this
prospectus, we intend them to have the meanings given them in the amended and
restated declaration of trust or the indenture, as the case may be.
GENERAL
A CCC Capital Trust will issue the preferred securities and the common
securities under the amended and restated declaration of trust, with a stated
liquidation amount to be determined. The preferred securities and the common
securities will rank equally with one another, and all payments will be made on
the preferred securities and the common securities pro rata, except as described
in "--Priority over Common Securities."
The issuer will issue the junior subordinated debt securities under the
indenture as described in "Description of the Junior Subordinated Debt
Securities," and the property trustee of the issuing CCC Capital Trust will hold
legal title to the junior subordinated debt securities in trust for the benefit
of the holders of the preferred securities and the common securities. Citadel
Communications will guarantee Citadel Broadcasting's obligations under Citadel
Broadcasting's junior subordinated securities. Citadel Communications will also
guarantee each CCC Capital Trust's obligations under the guarantee agreement as
described in "Description of the Guarantee and Expense Agreement Relating to the
Preferred Securities." Under the guarantee of the preferred securities, Citadel
Communications will guarantee, on a subordinated basis, the payment of
distributions and other amounts payable on the preferred securities, but only to
the extent that the CCC Capital Trust has funds on hand legally and immediately
available to make those payments.
DISTRIBUTIONS
Distributions will accumulate on the preferred securities from their
original issue date at an annual rate provided in the applicable prospectus
supplement. Unless deferred as described below, distributions will be payable
quarterly in arrears to the holders of the preferred securities at the close of
business on the 15th day, whether or not a business day, next
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preceding the relevant distribution date. The amount of distributions payable
for any period will be computed on the basis of a 360-day year of 12 30-day
months.
Each CCC Capital Trust will have no funds to distribute in respect of the
preferred securities other than the payments it receives from the issuer in
respect of the junior subordinated debt securities. Consequently, if the issuer
defers or for any other reason fails to make interest payments on the junior
subordinated debt securities, the CCC Capital Trust will not have funds
available to pay distributions on the preferred securities. Neither Citadel
Communications nor Citadel Broadcasting have a current intention to exercise its
right to defer interest payments on the junior subordinated debt securities that
it may issue.
EXTENSION PERIODS
As long as no event of default under the indenture has occurred and is
continuing, the issuer has the right under the indenture to defer the payment of
interest on the junior subordinated debt securities at any time. The issuer may
do so for a period not exceeding 20 consecutive quarters, provided that no
extension period may extend beyond the stated maturity of the junior
subordinated debt securities. However, during an extension period, interest will
continue to accrue and, to the extent permitted by applicable law, additional
interest will accrue on each deferred interest payment at an annual rate
specified in the prospectus supplement, compounded quarterly from the
corresponding interest payment date. Before an extension period ends, the issuer
may extend it further, subject to the limit described above. When an extension
period ends and the issuer has paid all interest then accrued and unpaid on the
junior subordinated debt securities, the issuer may begin a new extension
period, provided that no event of default under the indenture has occurred and
is continuing. There is no limit on the number of extension periods that the
issuer may begin. For additional information on interest payments on the junior
subordinated debt securities, see "Description of the Junior Subordinated Debt
Securities--Interest."
If the issuer elects to defer interest payments on the junior subordinated
debt securities, the CCC Capital Trust will defer the payment of distributions
on the preferred securities during the related extension period. However, during
an extension period, distributions will continue to accumulate on the
liquidation amount of the preferred securities and, to the extent permitted by
applicable law, those deferred distributions will accumulate additional
distributions at an annual rate specified in the prospectus supplement,
compounded quarterly from the corresponding distribution date. The term
distribution, wherever we use it in this section, includes any of these
additional distributions. During an extension period, holders of preferred
securities may be required to accrue interest income for U.S. federal income tax
purposes. The prospectus supplement will contain a more detailed discussion on
the U.S. federal income tax considerations.
Any distributions that would otherwise become due and payable during an
extension period will not become due and payable until the day after the
extension period ends. If any preferred securities become subject to redemption
on a redemption date that would otherwise occur during an extension period, that
extension period will end automatically on the next preceding day.
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The issuer must give the property trustee and the holders of preferred
securities notice of its election to begin or extend an extension period. The
notice must be given at least one business day before the earlier of the
following:
- the record date for the distribution date on which distributions would
have been payable but for the election, and
- the date on which notice of that record date must be given to the New
York Stock Exchange, or any other national securities exchange or
organization on which the preferred securities are then listed, under the
rules of that exchange or other organization.
The issuer must notify the holders in the manner described below in
"--Notices."
EXTENSION PERIOD RESTRICTIONS
The indenture provides that, during any extension period, neither the
issuer nor any of its subsidiaries may take any of the following actions:
- declare or pay any dividend or other distribution on, or redeem, purchase
or otherwise acquire, or make any distribution or liquidation payment
with respect to, any capital stock of the issuer, except as described
below, and
- pay any principal, interest or other amount in respect of, or redeem,
purchase or otherwise acquire, any debt securities, including guarantees
of such indebtedness, of the issuer that rank, in right of payment in all
respects, equally with or junior to the junior subordinated debt
securities, except as described below.
The indenture restriction described above provides for significant exceptions.
Any of the following that would otherwise be covered by this restriction will
nevertheless be permitted:
- any transaction in which the only consideration given or to be given by
the issuer or any of its Subsidiaries is junior securities meaning (1)
capital stock or debt securities of the issuer that rank, in right of
payment in all respects, equally with or junior to the junior
subordinated debt securities and (2) warrants, options and other rights
to acquire or convert into capital stock or debt securities of the kind
described in clause (1);
- any transaction in connection with or arising from:
- any employment contract, benefit plan or other similar arrangement
with, or for the benefit of, one or more employees, officers,
directors or consultants in connection with a dividend reinvestment or
stockholder stock purchase plan, or
- any issuance of junior securities as consideration in an acquisition
transaction entered into before the applicable extension period;
- any reclassification, exchange or conversion of capital stock or
indebtedness, of the issuer or any Subsidiary, as, into or for any junior
securities of the issuer;
- any purchase of fractional interests in capital stock pursuant to the
conversion or exchange provisions of a security being converted into or
exchanged for capital stock;
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- any declaration or payment of a dividend, issuance of rights, stock or
other property or redemption or other acquisition of rights in connection
with any stockholder rights plan; or
- in the case when the issuer is Citadel Broadcasting, any declaration or
payment of a dividend with respect to Citadel Broadcasting's 13 1/4%
Exchangeable Preferred Stock.
MANDATORY REDEMPTION
The preferred securities will remain outstanding until the CCC Capital
Trust redeems them or distributes the junior subordinated debt securities in
exchange for the preferred securities. Any redemption of preferred securities
must occur as described below. Any exchange distribution must occur as described
below in "--Exchange of Preferred Securities for Junior Subordinated Debt
Securities."
REDEMPTION OF PREFERRED SECURITIES AND COMMON SECURITIES
If the issuer repays or redeems the junior subordinated debt securities at
any time, whether at their stated maturity, upon acceleration after an event of
default under the indenture or upon optional redemption, the CCC Capital Trust
will be obligated to redeem a like amount of preferred securities and common
securities on the redemption date at the redemption price specified in the
prospectus supplement. In this context, like amount means preferred securities
and common securities having an aggregate liquidation amount equal to the
aggregate principal amount of the junior subordinated debt securities to be
contemporaneously repaid or redeemed.
REPAYMENT AND REDEMPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The junior subordinated debt securities will mature on the date set forth
in the applicable prospectus supplement. The issuer will also be entitled to
redeem the junior subordinated debt securities before their stated maturity, as
follows:
- on or after the date set forth in the applicable prospectus supplement,
in whole or in part, provided that no partial redemption may occur during
an extension period, or
- in whole at any time within 90 days after the occurrence of a Tax Event
or an Investment Company Act Event.
See "Description of the Junior Subordinated Debt Securities -- Definition of Tax
Event," and "-- Definition of Investment Company Act Event."
The indenture provides that if a Tax Event has occurred and is continuing
and the issuer does not elect to redeem the junior subordinated debt securities,
the issuer may be required to pay certain Additional Sums described under
"Description of the Junior Subordinated Debt Securities--Payment of Additional
Sums" on the junior subordinated debt securities. The indenture provisions
regarding repayment and redemption of the junior subordinated debt securities,
as well as information about the effect that possible tax law changes may have
on the junior subordinated debt securities and preferred securities, are
addressed in "Description of the Junior Subordinated Debt Securities--Stated
Maturity; Shortening and Extension" and "--Optional Redemption."
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REDEMPTION PROCEDURES
The property trustee will give notice of any redemption of preferred
securities to the holders of preferred securities not less than 30 nor more than
60 days before the redemption date, unless the redemption results from
acceleration of the maturity of the junior subordinated debt securities and the
property trustee cannot reasonably give this notice during this period. In that
case, the property trustee will give the notice as soon as practicable. In all
cases, the property trustee will give the notice of redemption in the manner
described below under "--Notices."
Payment of the redemption price for any preferred securities will be made
against surrender of the certificates representing those preferred securities,
or, in the case of any preferred securities held in book-entry form, in
accordance with the applicable procedures of the depositary. However, any
distributions that are payable on a distribution date that falls on or before
the redemption date will be payable to the persons who are the holders of those
preferred securities on the record date for the distribution date.
If the property trustee gives a notice of redemption, it will irrevocably
deposit with the depositary, in the case of any book-entry preferred securities,
or the paying agent, in the case of any non-book-entry preferred securities, on
the redemption date, funds sufficient to pay the redemption price for all
preferred securities to be redeemed on that date, to the extent the funds are
available to the property trustee. Upon the date of such deposit, all rights of
the holders of the preferred securities called for redemption will cease, except
the right of those holders to receive the redemption price (but without
additional interest on that amount, and those preferred securities will cease to
be outstanding. If payment of the redemption price for any preferred securities
called for redemption is improperly withheld or refused and not paid either by
the CCC Capital Trust or by Citadel Communications under the guarantee, or if
notice of redemption is not given as required, distributions on those preferred
securities will continue to accumulate to the date the redemption price is
actually paid.
If less than all the preferred securities and common securities are to be
redeemed on a redemption date, the aggregate liquidation amount of preferred
securities and common securities to be redeemed will be allocated pro rata
between the outstanding preferred securities and the outstanding common
securities, based upon their respective aggregate liquidation amounts. Not more
than 60 days prior to the redemption date, the property trustee will select the
preferred securities to be redeemed from among the outstanding preferred
securities not previously called for redemption. The property trustee may use
any method of selection that it deems to be fair and appropriate, including any
method that involves the redemption of a portion of the aggregate liquidation
amount of any particular holder's preferred securities.
OTHER PURCHASES OF PREFERRED SECURITIES
Subject to applicable law, including U.S. federal securities laws, we may
purchase outstanding preferred securities by tender, in the open market or by
private agreement. These purchases may occur at any time and from time to time
other than during an extension period.
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EXCHANGE OF PREFERRED SECURITIES FOR JUNIOR SUBORDINATED DEBT SECURITIES
The holders of the common securities will have the right at any time, in
their sole discretion, to elect to dissolve the CCC Capital Trust. Upon such an
election, and after liabilities of creditors of the CCC Capital Trust have been
satisfied as provided by applicable law, the property trustee will cause a like
amount of junior subordinated debt securities to be distributed in exchange for
all the outstanding preferred securities and common securities, in liquidation
of the CCC Capital Trust. In this context, like amount means junior subordinated
debt securities having an aggregate principal amount equal to the aggregate
liquidation amount of all outstanding preferred securities and common
securities. The exchange distribution will be made to the persons who are the
holders of record of the outstanding preferred securities and common securities
on the exchange date, which will be the 15th day, whether or not a business day,
before the date fixed for the distribution by the property trustee. See
"--Liquidation Distribution upon Dissolution."
EXCHANGE PROCEDURES
The property trustee will notify holders of preferred securities of any
exchange 30 to 60 days before the exchange date, in the manner described below
under "--Notices." On the exchange date, the following shall occur:
- The preferred securities will cease to be outstanding.
- The depositary or its nominee will receive certificates representing the
junior subordinated debt securities to be distributed in exchange for all
preferred securities held in book-entry form, with those junior
subordinated debt securities also being in book-entry form.
- Any certificates representing preferred securities that are not held in
book-entry form will be deemed to represent a like amount of junior
subordinated debt securities, bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid distributions on those
preferred securities, until those certificates are presented to the
paying agent for exchange or transfer.
- All rights of the holders of preferred securities will cease, except for
the right of holders of preferred securities in non-book-entry form to
receive certificates representing junior subordinated debt securities in
non-book-entry form, upon surrender of the certificates representing
their preferred securities, as described above.
CERTAIN TAX CONSEQUENCES
Under current U.S. federal income tax law and interpretations, and
assuming, as we expect, that the CCC Capital Trust will not be classified as an
association taxable as a corporation, holders of the preferred securities would
not be taxed if the junior subordinated debt securities were distributed in
exchange for preferred securities. However, if a Tax Event were to occur and the
CCC Capital Trust became taxable on income received or accrued on the junior
subordinated debt securities, both the CCC Capital Trust and the holders of the
preferred securities could be taxed on the distribution of junior subordinated
debt securities in exchange for preferred securities. The applicable prospectus
supplement will contain a more detailed discussion of these tax consequences.
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LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Under the amended and restated declaration of trust, the CCC Capital Trust
will automatically dissolve upon the occurrence of any of the following events,
whichever occurs first:
- the expiration of its term of 55 years;
- certain events of bankruptcy, dissolution or liquidation of a holder of
common securities;
- upon the election by the holders of common securities to dissolve the CCC
Capital Trust, as described above under "--Exchange of Preferred
Securities for Junior Subordinated Debt Securities;"
- redemption of all the preferred securities and common securities as
described above under "--Mandatory Redemption" and "--Redemption of
Preferred Securities and Common Securities;" or
- the entry of an order for the dissolution of the CCC Capital Trust by a
court of competent jurisdiction.
If the CCC Capital Trust dissolves while the preferred securities are
outstanding, the property trustee will liquidate the CCC Capital Trust as
expeditiously as the property trustee determines to be possible. The property
trustee will do so by distributing a like amount of the junior subordinated debt
securities to the holders of the preferred securities and common securities in
exchange for their securities, as described above under "--Exchange of Preferred
Securities for Junior Subordinated Debt Securities." However, the property
trustee will do so only after satisfying liabilities to creditors of the CCC
Capital Trust as provided by applicable law and only if the property trustee
determines that an exchange distribution of this kind is practical.
If the property trustee determines that an exchange distribution is not
practical, each holder of outstanding preferred securities will be entitled to
receive out of the assets of the CCC Capital Trust available for distribution to
holders, after satisfaction of liabilities to creditors of the CCC Capital Trust
as provided by applicable law, an amount equal to the liquidation distribution.
The liquidation distribution for any preferred securities will equal the
aggregate liquidation amount of those preferred securities plus all accrued and
unpaid distributions on them to the date of payment. If the liquidation
distribution for all outstanding preferred securities can be paid only in part
because the CCC Capital Trust has insufficient assets available to pay it in
full, the amounts payable by the CCC Capital Trust on the preferred securities
will be paid pro rata, based on their respective liquidation distributions.
On any liquidation of the CCC Capital Trust, the holders of the common
securities will be entitled to receive distributions pro rata with the holders
of the preferred securities, unless an event of default under the amended and
restated declaration of trust has occurred and is continuing. In that case, the
preferred securities will have priority in right of payment over the common
securities, as described below under "--Priority over Common Securities."
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PRIORITY OVER COMMON SECURITIES
Payment of distributions and the redemption price will be made in respect
of the preferred securities and the common securities pro rata, based on the
respective aggregate liquidation amounts of the two classes, except as follows.
If an event of default under the amended and restated declaration of trust (see
the next subsection) has occurred and is continuing, the CCC Capital Trust will
not pay any distribution or redemption price, or make any liquidation
distribution, in respect of the common securities on any day unless any of the
following have occurred:
- In the case of any distribution to be paid, all accumulated and unpaid
distributions on all outstanding preferred securities for all
distribution periods ending on or before the payment day have been paid,
or duly provided for, in cash.
- In the case of any redemption price to be paid, the redemption price on
all outstanding preferred securities called on or before the payment day
for redemption has been paid, or duly provided for, in cash.
- In the case of a liquidation distribution to be made, the liquidation
distribution on all outstanding preferred securities has been made, or
duly provided for.
Whenever any distribution or redemption price is due and payable in respect of
the preferred securities, the property trustee will apply all available funds to
the payment of those amounts in full in cash before making any payment in
respect of the common securities. The CCC Capital Trust will not make any
payment or other distribution in respect of the common securities, including on
account of any purchase or other acquisition, while the preferred securities are
outstanding, other than distributions, the redemption price and the liquidation
distribution on the terms set forth in the amended and restated declaration of
trust.
If an event of default occurs, the holders of the common securities will be
deemed to have waived all rights to act with respect to the event of default
under the amended and restated declaration of trust until all events of default
have been cured, waived or otherwise eliminated. Until that time, the property
trustee will act solely on behalf of the holders of the preferred securities and
not on behalf of the holders of the common securities, and only the holders of
the preferred securities will have the right to direct the property trustee to
act on their behalf.
Notwithstanding the foregoing, the holders of common securities may act
with respect to an event of default that results solely from a default in the
payment of any amount due and payable on the common securities, or from a
default or breach under any covenant in the amended and restated declaration of
trust made solely for the benefit of the holders of common securities, subject
to the following conditions. The action of the common securities holders must
not adversely affect the interests of the holders of preferred securities and no
event of default, and no event or condition that after the passage of time or
giving of notice would result in a event of default, that is other than of the
type described in the preceding sentence, may have occurred and be continuing.
TRUST EVENTS OF DEFAULT
Any one of the following events will be a event of default under the
amended and restated declaration of trust. This will be the case regardless of
the reason why the event
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occurs, whether it is voluntary or involuntary and whether or not it results
from operation of law, from any judgment, decree or order of any court or from
any order, rule or regulation of any administrative or governmental body:
- the occurrence of an event of default under the junior subordinated
indenture (see "Description of the Junior Subordinated Debt
Securities--Events of Default");
- the default by the CCC Capital Trust in the payment of any distribution
when it becomes due and payable and continuation of the default for 30
days;
- the default by the CCC Capital Trust in the payment of any redemption
price when it becomes due and payable;
- a material default or breach under any covenant or warranty of the
trustees in the amended and restated declaration of trust, and
continuation of the default or breach for 60 days after a notice of
default has been given, which may be given only by the holders of at
least 25% in aggregate liquidation amount of the outstanding preferred
securities, as provided under the amended and restated declaration of
trust; or
- the occurrence of certain events of bankruptcy or insolvency with respect
to the property trustee if a successor property trustee has not been
appointed within 90 days.
Within five business days after learning about an event of default, the
property trustee will notify the holders of the outstanding preferred securities
and common securities, unless the event of default has been cured or waived.
Citadel Communications, as depositor, and the administrators are obligated to
file annually with the property trustee a certificate as to whether or not they
are in compliance with all the conditions and covenants applicable to them under
the amended and restated declaration of trust.
ENFORCEMENT RIGHTS
If an event of default under the indenture occurs and is continuing as to a
series of corresponding junior subordinated debt securities, the property
trustee, as the holder of the junior subordinated debt securities, will have the
right to declare the principal of and premium and interest, if any, on the
corresponding junior subordinated debt securities, and any other amounts payable
under the indenture, due and payable and to enforce its other rights as a
creditor with respect to such corresponding junior subordinated debt securities.
This means, however, that, as a holder of the related preferred securities,
you must rely on the property trustee to enforce its rights against the issuer,
subject to the following provisions.
RIGHT TO DIRECT PROPERTY TRUSTEE'S ACTIONS
The holders of a majority in aggregate liquidation amount of outstanding
preferred securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to, or exercising any trust
or power conferred on, the property trustee under the amended and restated
declaration of trust, including the right to direct the property trustee to
exercise the remedies available to it as the holder of the junior subordinated
debt securities. Accordingly, the property trustee will not take any of the
following actions without obtaining the prior approval of the holders of a
majority in
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aggregate liquidation amount of the outstanding preferred securities, or, in the
case of any action that under the indenture may be taken only with the prior
consent of each affected holder of junior subordinated debt securities, without
the prior consent of each holder of outstanding preferred securities:
- direct the time, method or place of conducting any proceeding for any
remedy available to, or executing any trust or power conferred on, the
trustee under the indenture with respect to the junior subordinated debt
securities;
- waive any past default that may be waived under the indenture;
- exercise any right to rescind or annul a declaration that the aggregate
principal amount of the junior subordinated debt securities be due and
payable;
- consent to any amendment, modification or termination of the indenture or
the junior subordinated debt securities, if the consent of any holder of
junior subordinated debt securities is required under the indenture; or
- revoke any action previously authorized or approved by the holders of the
preferred securities except by, or with the subsequent authorization or
approval of, the holders of the preferred securities.
Before taking any of the actions described above, the property trustee must also
obtain an opinion of counsel, experienced in the following matters, to the
effect that the action will not cause the CCC Capital Trust to be classified as
an association taxable as a corporation, or as other than a grantor trust, or
cause the junior subordinated debt securities to be treated as other than
indebtedness of the issuer, for U.S. federal income tax purposes. The property
trustee will notify the holders of preferred securities of any notice of default
with respect to the junior subordinated debt securities, in the manner described
below under "--Notices."
Any required approval of holders of preferred securities may be given by
written consent or at a meeting convened for that purpose. The property trustee
must cause a notice of any meeting at which holders of preferred securities are
entitled to vote, to be given to the holders of preferred securities in the
manner described below under "--Notices."
RIGHT OF DIRECT ACTION
If an event of default under the indenture has occurred and is continuing
and is attributable to the failure of the issuer to pay any interest or
principal on the junior subordinated debt securities when due and payable, a
holder of preferred securities may begin a legal proceeding directly against the
issuer for enforcement of payment, to that holder, of the interest, including
any Additional Sums, or principal due and payable on junior subordinated debt
securities having a principal amount equal to the aggregate liquidation amount
of that holder's preferred securities. The issuer may not amend the indenture to
remove the right of any holder of outstanding preferred securities to bring a
direct action without the prior written consent of that holder. The issuer will
have the right under the indenture to set off any payment made to a holder of
preferred securities in connection with a direct action. Except for the right to
bring a direct action, holders of preferred securities will not have the right
to exercise directly against the issuer any remedy available to a holder of
junior subordinated debt securities.
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RIGHT TO ACCELERATE JUNIOR SUBORDINATED DEBT SECURITIES
The holders of certain minimum percentages of the outstanding preferred
securities will be entitled to exercise certain rights of the holders of the
junior subordinated debt securities under the indenture, if the holders of
junior subordinated debt securities do not do so. These rights include the right
to accelerate the maturity of the junior subordinated debt securities when an
event of default under the indenture has occurred and is continuing, to cancel a
declaration of acceleration of the junior subordinated debt securities and to
waive certain defaults under the indenture. See "Description of the Junior
Subordinated Debt Securities--Events of Default."
MERGERS, CONSOLIDATIONS, AMALGAMATIONS AND REPLACEMENTS OF THE CCC CAPITAL TRUST
At the request of the holders of the common securities and without the
consent of any holder of preferred securities or any trustee or administrator,
the CCC Capital Trust may merge with or into, or consolidate or amalgamate with,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, another person, but only if that other person
is a trust organized as such under the laws of any state in the United States
and only if all the following requirements are met:
- The successor entity, if not the CCC Capital Trust, either expressly
assumes all the obligations of the CCC Capital Trust with respect to the
preferred securities or substitutes for the preferred securities other
securities having substantially the same terms as the preferred
securities, provided that the successor securities rank at least as high
as the preferred securities rank with regard to the priority in right of
payment of all distributions and other amounts payable upon liquidation,
redemption and otherwise.
- The successor entity, if not the CCC Capital Trust, has a purpose
substantially identical to that of the CCC Capital Trust.
- A trustee of the successor entity, if not the CCC Capital Trust,
possessing the same powers and duties as the property trustee is
appointed to hold the junior subordinated debt securities.
- The successor securities, if any, are listed, or will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the preferred securities are then listed.
- The transaction does not cause the preferred securities, or any successor
securities, to be downgraded by any nationally recognized statistical
rating organization that assigns ratings to the preferred securities.
- The transaction does not adversely affect the material rights,
preferences and privileges of the holders of the preferred securities, or
any successor securities, in any material respect.
- Prior to the transaction, Citadel Communications and the CCC Capital
Trust have received an opinion from independent counsel to Citadel
Communications and the CCC Capital Trust, experienced in the following
matters, to the effect that (1) the transaction will not adversely affect
the rights, preferences and privileges of the holders of the preferred
securities, or any successor securities, in any material respect
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and (2) upon completion of the transaction, the CCC Capital Trust or the
successor entity, as applicable, will not be required to register as an
investment company under the Investment Company Act.
- Citadel Communications, or any permitted successor, together with its
permitted assignees, holds all the common securities of the CCC Capital
Trust or all comparable securities of the successor entity, as
applicable, and guarantees the obligations of the successor entity, if
not the CCC Capital Trust, in respect of the preferred securities, or any
successor securities, at least to the extent provided by the guarantee.
Notwithstanding the foregoing, the CCC Capital Trust may not engage in a
transaction that would cause the CCC Capital Trust or the successor entity, as
applicable, to be classified as an association taxable as a corporation or as
other than a grantor trust, or would cause the junior subordinated debt
securities or any successor securities to be treated as other than indebtedness
of the issuer, for U.S. federal income tax purposes, unless it first obtains the
consent of all holders of outstanding preferred securities. Except as permitted
under the provisions described above, the CCC Capital Trust may not engage in
any transaction of the type described.
VOTING RIGHTS; AMENDMENT OF THE AMENDED AND RESTATED DECLARATION OF TRUST
Except as provided below and under "Description of the Guarantee and
Expense Agreement Relating to the Preferred Securities--Amendments, Assignment
and Succession," and as otherwise required by law and the amended and restated
declaration of trust, the holders of the preferred securities will have no
voting rights.
The holders of the common securities and the property trustee, without the
consent of the holders of the preferred securities, may amend the amended and
restated declaration of trust from time to time to do any of the following:
- cure any ambiguity, or correct or supplement any provision that may be
inconsistent with any other provision, in the amended and restated
declaration of trust;
- make any provision with respect to matters or questions arising under the
amended and restated declaration of trust that is not inconsistent with
the other provisions of the amended and restated declaration of trust;
and
- modify, eliminate or add to any provisions of the amended and restated
declaration of trust to any extent that may be necessary to ensure that
the CCC Capital Trust will not be taxable as a corporation or be
classified as other than a grantor trust, or to ensure that the junior
subordinated debt securities are treated as indebtedness of the issuer,
for U.S. federal income tax purposes, or to ensure that the CCC Capital
Trust will not be required to register as an "investment company" under
the Investment Company Act);
but only if the amendment does not adversely affect the interests of any holder
of preferred securities in any material respect and does not become effective
until notice of the amendment is given to the holders of preferred securities.
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The holders of the common securities and the property trustee may also
amend the amended and restated declaration of trust if:
- they obtain the consent of the holders of not less than a majority in
aggregate liquidation amount of the outstanding preferred securities, and
- the trustees receive an opinion of counsel to the effect that the
amendment or the exercise of any power granted to the trustees in
accordance with the amendment will not result in the CCC Capital Trust
being taxable as a corporation or being classified as other than a
grantor trust, or the junior subordinated debt securities being treated
as other than indebtedness of the issuer, for U.S. federal income tax
purposes or the CCC Capital Trust being required to register as an
investment company under the Investment Company Act.
Notwithstanding the foregoing, each holder of preferred securities or
common securities must consent to an amendment of the amended and restated
declaration of trust that:
- changes the amount or timing of any distribution or other payment, or
otherwise adversely affects the amount or timing of any distribution or
other payment required to be made as of a specified date, in respect of
that holder's preferred securities and common securities, or
- restricts the right of that holder to institute suit for the enforcement
of any payment on those preferred securities and common securities on or
after the date on which it becomes due and payable.
For the purpose of any vote or consent of holders of preferred securities,
any preferred securities owned by Citadel Communications, any trustee or any
affiliate of Citadel Communications or any trustee will be treated as if they
were not outstanding.
NOTICES
Notices to be given to holders of preferred securities held in book-entry
form will be given only to the depositary in accordance with its applicable
procedures. Notices to be given to holders of preferred securities not held in
book-entry form may be given by mail to the respective addresses of the holders
as they appear in the security register. Neither the failure to give any notice
to a particular holder, nor any defect in a notice given to a particular holder,
will affect the sufficiency of any notice given to another holder.
PAYMENT AND PAYING AGENCY
Payments in respect of any preferred securities held in book-entry form
will be made only to the depositary or its nominee in accordance with its
applicable procedures. Payments in respect of any preferred securities not held
in book-entry form will be made at the offices of any paying agent. However, at
the option of Citadel Communications, distributions payable on non-book-entry
preferred securities may be paid by check mailed to the persons entitled to
receive them, at their addresses appearing on the security register on the
relevant record date.
The property trustee will initially serve as the paying agent. From time to
time, the property trustee may select one or more firms to act as the paying
agent or as co-paying agents. Each paying agent must be a bank or trust company
acceptable to the administrators.
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A paying agent will be permitted to resign as paying agent upon 30 days' written
notice to the property trustee and Citadel Communications. In the event there is
no paying agent, the property trustee will appoint a firm to act as paying
agent.
If any distribution, redemption price or other amount is payable in respect
of the preferred securities on a day that is not a business day, the payment may
be made on the next succeeding business day unless that business day is in a
different calendar year, in which case the payment may be made on the next
preceding business day. Each payment made on the next succeeding or preceding
business day as described above may be made with the same force and effect as if
made on the day on which the payment is originally payable.
THE OWNERS OF BENEFICIAL INTERESTS IN PREFERRED SECURITIES HELD IN
BOOK-ENTRY FORM WILL NOT HAVE ANY RIGHTS UNDER THE AMENDED AND RESTATED
DECLARATION OF TRUST OR THE INDENTURE TO RECEIVE PAYMENTS IN RESPECT OF THOSE
PREFERRED SECURITIES. THOSE BENEFICIAL OWNERS WILL HAVE ONLY SUCH RIGHTS AS MAY
EXIST UNDER THE APPLICABLE PROCEDURES OF THE DEPOSITARY AND ITS DIRECT AND
INDIRECT PARTICIPANTS. FOR A DESCRIPTION OF CERTAIN MATTERS RELATING TO
SECURITIES HELD IN BOOK-ENTRY FORM, SEE "SECURITIES WE MAY ISSUE--LEGAL
OWNERSHIP OF SECURITIES."
Any moneys deposited with the property trustee or any paying agent, or then held
in trust by Citadel Communications or the CCC Capital Trust, for the payment of
any amount due and payable on any preferred securities, and remaining unclaimed
for two years after the amount has become due and payable, will, at the request
of Citadel Communications, be repaid to Citadel Communications. Thereafter, the
holders of those preferred securities will look, as a general unsecured
creditor, only to Citadel Communications for payment thereof.
REGISTRAR AND TRANSFER AGENT
The property trustee will act as registrar and transfer agent for the
preferred securities. The property trustee will exchange and register transfers
of preferred securities without charge by or on behalf of the CCC Capital Trust,
but will require payment of any tax or other governmental charge that may be
imposed in connection with the exchange or transfer. If any preferred securities
have been called for redemption, the property trustee may refuse to register any
transfer of those preferred securities during a period beginning 15 days before
the redemption date.
REGARDING THE TRUST TRUSTEES
Removal and Appointment of Successors. The holders of at least a majority
in aggregate liquidation amount of the outstanding preferred securities may
remove the trustees for cause or, if an event of default under the indenture has
occurred and is continuing, with or without cause. If a trustee is removed by
the holders of the outstanding preferred securities, the successor may be
appointed by the holders of at least 25% in aggregate liquidation amount of the
outstanding preferred securities. If a trustee resigns, it will appoint its
successor. If a trustee fails to appoint a successor, the holders of at least
25% in aggregate liquidation amount of the outstanding preferred securities may
appoint a successor. If a successor has not been appointed by the holders, any
holder of preferred securities or common securities or the other trustee may
petition a court in the State of Delaware to appoint a successor. Any Delaware
trustee must meet the applicable requirements of Delaware law. Any property
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trustee must be a national or state-chartered bank and, at the time of
appointment, must have securities rated in one of the three highest rating
categories by a nationally recognized statistical rating organization and have
capital and surplus of at least $50,000,000. No resignation or removal of a
trustee, and no appointment of a successor trustee, will be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the Declaration of Trust.
Merger, Consolidation, Etc. If a trustee merges, consolidates with or
converts into, another person, or another person succeeds to all or
substantially all the corporate trust business of that trustee, that other
person will be the successor of that trustee under the amended and restated
declaration of trust, but only if that other person is qualified and eligible to
be a trustee.
Duties of Property Trustee. The property trustee undertakes to perform only
those duties that are specifically set forth in the amended and restated
declaration of trust, unless an event of default under the amended and restated
declaration of trust is continuing. In that event, the property trustee must
exercise the same degree of care and skill as a prudent person would exercise or
use in the conduct of his or her own affairs. Subject to this provision, the
property trustee will have no obligation to exercise any of the powers vested in
it by the amended and restated declaration of trust at the request of any holder
of preferred securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that it might incur as a result. If no event of
default is continuing and the property trustee must decide between alternative
causes of action or construe ambiguous provisions in the amended and restated
declaration of trust, or is unsure of the application of any provision of the
amended and restated declaration of trust, and the matter is not one on which
the holders of preferred securities and common securities are entitled under the
amended and restated declaration of trust to vote, then the property trustee may
take any action that it deems to be advisable and in the best interests of the
holders of the preferred securities and common securities and will have no
liability except for its own bad faith, negligence or willful misconduct.
Miscellaneous. The amended and restated declaration of trust authorizes and
directs the administrators and the property trustee to conduct the affairs of
and to operate the CCC Capital Trust so that the CCC Capital Trust will not be
required to register as an investment company under the Investment Company Act
or be classified as an association taxable as a corporation or as other than a
grantor trust for U.S. federal income tax purposes and so that the junior
subordinated debt securities will be treated as indebtedness of the issuer for
U.S. federal income tax purposes. The amended and restated declaration of trust
authorizes the property trustee and the holders of common securities to take any
action, not inconsistent with applicable law, the certificate of trust of the
CCC Capital Trust or the amended and restated declaration of trust, that they,
or any successor entity, determine in their discretion to be necessary or
desirable for these purposes, as long as the action does not adversely affect
the interests of the holders of the preferred securities in any material
respect. Holders of the preferred securities will have no preemptive or similar
rights.
GOVERNING LAW
The amended and restated declaration of trust and the preferred securities
and common securities will be governed by and construed in accordance with the
laws of Delaware.
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DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
This section summarizes the main provisions of the junior subordinated debt
securities and the junior subordinated indenture, but it does not describe all
the provisions. Therefore, you should read the full text of the indentures for a
complete description of the junior subordinated debt securities. We have filed a
form of the junior subordinated indenture as an exhibit to the registration
statement, of which this prospectus is a part.
THE TERM INDENTURE, WHEN USED IN THIS SECTION, REFERS ONLY TO THE INDENTURE FOR
THE JUNIOR SUBORDINATED DEBT SECURITIES OF CITADEL COMMUNICATIONS OR CITADEL
BROADCASTING, AS THE CASE MAY BE, AND NOT TO THE INDENTURES FOR SENIOR AND
SENIOR SUBORDINATED DEBT SECURITIES OF CITADEL COMMUNICATIONS. THE TERM ISSUER,
WHEN USED IN THIS SECTION, REFERS TO THE ISSUER OF THE JUNIOR SUBORDINATED DEBT
SECURITIES, WHICH COULD BE CITADEL COMMUNICATIONS OR CITADEL BROADCASTING.
This section uses terms that are defined in the indenture and the amended
and restated declaration of trust. Unless we define those terms in this
prospectus, we intend for them to have the meanings given them in the junior
subordinated indenture or the amended and restated declaration of trust, as the
case may be.
GENERAL
Concurrently with the issuance of the preferred securities, the issuer will
issue the junior subordinated debt securities under the indenture, and the CCC
Capital Trust will use the proceeds from the sale of the preferred securities,
together with the consideration paid by Citadel Communications for the common
securities, to purchase the junior subordinated debt securities. The junior
subordinated debt securities will initially equal the sum of the initial
aggregate liquidation amount of the preferred securities and the common
securities. Unless the CCC Capital Trust distributes the junior subordinated
debt securities in exchange for the preferred securities as described below, the
junior subordinated debt securities will be held in the name of the property
trustee in trust for the benefit of the holders of the preferred securities and
the common securities.
The junior subordinated debt securities will be general, unsecured
obligations of the issuer and will be subordinated in right of payment, to the
extent and in the manner set forth in the indenture, to all Senior Debt of the
issuer. Because Citadel Communications is a holding company, the junior
subordinated debt securities of Citadel Communications will also effectively be
subordinated to all existing and future liabilities of Citadel Communications'
subsidiaries. See "Holding Company Structure and Secured Claims."
INTEREST
Interest will accrue on the principal of the preferred securities from
their original issue date at the annual rate set forth in the applicable
prospectus supplement. Unless deferred as described below, interest will be
payable quarterly in arrears on the dates set forth in the applicable prospectus
supplement to the persons who are the record holders of the junior subordinated
debt securities at the close of business on the 15th day, whether or not a
business day, next preceding the relevant interest payment date. The amount of
interest payable for any period will be computed on the basis of a 360-day year
of 12 30-day months.
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As long as no event of default under the indenture has occurred and is
continuing, the issuer will have the right to defer the payment of interest on
the junior subordinated debt securities as described in "Description of the CCC
Capital Trusts Preferred Securities--Distributions--Extension Periods." However,
during an extension period described under "Description of the CCC Capital
Trusts Preferred Securities--Extension Periods," interest will continue to
accrue on the junior subordinated debt securities and, to the extent permitted
by applicable law, additional interest will accrue on each deferred interest
payment at an annual rate specified in the prospectus supplement, compounded
quarterly from the corresponding interest payment date. The term interest,
wherever we use it in this prospectus with respect to the junior subordinated
debt securities, includes any of this additional interest. In addition, during
any extension period, the indenture will prohibit the issuer and its
subsidiaries from taking certain actions described in "Description of the CCC
Capital Trusts Preferred Securities--Distributions--Extension Period
Restrictions."
Any interest that would otherwise become due and payable in respect of any
junior subordinated debt securities during an extension period will not become
due and payable until the day after the period ends. If the principal of any
junior subordinated debt securities becomes due and payable on a day that would
otherwise occur during an extension period, that period will end automatically
on the next preceding day, which will be the last day of that period.
STATED MATURITY; SHORTENING AND EXTENSION
The junior subordinated debt securities will initially have a stated
maturity. However, the issuer will have the option at any time to shorten the
stated maturity to a date not earlier than a date set forth in the applicable
prospectus supplement. The issuer would expect to exercise this option if, for
example, a tax development occurred that could adversely affect the
deductibility of the interest payments on the junior subordinated debt
securities and shortening the maturity would preserve such deductibility.
If provided in the indenture, the issuer will also have the option at any
time to extend the stated maturity to a date set forth in the applicable
prospectus supplement, but only if the issuer has long-term senior unsecured
debt that is outstanding and rated investment grade when it gives notice of the
extension as described below. As used herein, investment grade means either a
rating of BBB or better by Standard & Poor's Ratings Services, or any equivalent
successor rating, or a rating of Baa3 or better by Moody's Investors Service,
Inc., or any equivalent successor rating.
To exercise its option to shorten or extend the stated maturity, the issuer
must select a date when the change is to become effective and must notify the
indenture trustee, and the indenture trustee must notify the holders of the
junior subordinated debt securities in the manner described below under
"--Notices," of the new stated maturity and the effective date of the change.
The notice must be given not less than 30 days nor more than 60 days before the
effective date. Any notice of this kind will be irrevocable when given.
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OPTIONAL REDEMPTION
The issuer will have the option to redeem the junior subordinated debt
securities before the stated maturity as follows:
- on or after a date set forth in the applicable prospectus supplement, in
whole at any time or in part from time to time, provided that no partial
redemption may occur during an extension period, or
- in whole, but not in part, at any time within 90 days after the
occurrence of a Tax Event or an Investment Company Act Event (as defined
below).
If the issuer elects to redeem any junior subordinated debt securities, it
will do so at a redemption price equal to the principal amount of the junior
subordinated debt securities to be redeemed, plus any accrued and unpaid
interest on those securities to the redemption date. Unless the issuer defaults
in payment of the redemption price, on and after the redemption date, interest
will cease to accrue on the junior subordinated debt securities called for
redemption. The issuer may not elect to redeem any junior subordinated debt
securities on a redemption date that would occur during an extension period
unless it elects to redeem all outstanding junior subordinated debt securities
on that date.
The issuer must give notice of any redemption to the holders of the junior
subordinated debt securities 30 to 60 days before the redemption date in the
manner described below under "--Notices." In all other respects, the procedures
for redeeming the junior subordinated debt securities will be similar to those
for redeeming the preferred securities, described under "Description of the CCC
Capital Trusts Preferred Securities--Mandatory Redemption--Redemption
Procedures."
DEFINITION OF TAX EVENT
Tax Event means the receipt by the issuer, and, if the preferred securities
are outstanding, the CCC Capital Trust, of an opinion of independent counsel,
experienced in the following matters, to the effect that as a result of any tax
change, there is more than an insubstantial risk that any of the following will
occur:
- The CCC Capital Trust is, or will be within 90 days after the date of the
opinion of counsel, subject to U.S. federal income tax with respect to
income received or accrued on the junior subordinated debt securities.
- Interest payable by the issuer or original issue discount accruing on the
junior subordinated debt securities is not, or within 90 days after the
opinion of counsel will not be, deductible by the issuer, in whole or in
part, for U.S. federal income tax purposes.
- The CCC Capital Trust is, or will be within 90 days after the date of the
opinion of counsel, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
As used above, tax change means any of the following:
- any amendment to, clarification of or change, including any announced
prospective change, in the laws, or any regulations under the laws, of
the United States or of any
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political subdivision or taxing authority of or in the United States, if
the amendment or change is enacted, promulgated or announced on or after
the date of the applicable prospectus supplement, or
- any official administrative pronouncement, including any private letter
ruling, technical advice memorandum or field service advice, or any
judicial decision, whether or not the pronouncement or decision is issued
to or in connection with a proceeding involving the issuer or the CCC
Capital Trust or is subject to review or appeal, if the pronouncement or
decision is enacted, promulgated or announced on or after the date of the
applicable prospectus supplement.
The applicable prospectus supplement will contain a description of certain
tax law developments that could result in a Tax Event and thus early redemption
of the junior subordinated debt securities and the preferred securities.
DEFINITION OF INVESTMENT COMPANY ACT EVENT
Investment Company Act Event means the receipt by Citadel Communications
and the CCC Capital Trust of an opinion of counsel, experienced in the following
matters, to the following effect: As a result of the occurrence of a change,
including any announced prospective change, in law or regulation, or a written
change, including any announced prospective change, in interpretation or
application of law or regulation, by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the CCC Capital Trust is or will be considered an investment company that is
required to be registered under the Investment Company Act. To be effective for
this purpose, the change or prospective change must become effective, or the
prospective change will become effective, on or after the date of the applicable
prospectus supplement.
PAYMENT OF ADDITIONAL SUMS
If a Tax Event has occurred and is continuing and the issuer does not elect
to redeem the junior subordinated debt securities and thereby cause a mandatory
redemption of the preferred securities, and does not elect to liquidate the CCC
Capital Trust and cause the junior subordinated debt securities to be
distributed to the holders of the preferred securities and common securities in
exchange for their securities, as described above, the preferred securities will
remain outstanding and the issuer will be obligated to pay Additional Sums on
the junior subordinated debt securities. Additional Sums means such additional
amounts as may be necessary so that the amount of distributions that are due and
payable by the CCC Capital Trust on the outstanding preferred securities and
common securities at any time will not be reduced as a result of certain
additional taxes, duties and other governmental charges to which the CCC Capital
Trust has become subject as a result of the Tax Event.
EXCHANGE OF PREFERRED SECURITIES FOR JUNIOR SUBORDINATED DEBT SECURITIES
As described under "Description of the CCC Capital Trusts Preferred
Securities--Exchange of Preferred Securities for Junior Subordinated Debt
Securities," the holders of common securities may elect to dissolve the CCC
Capital Trust and, after satisfaction of liabilities to creditors of the CCC
Capital Trust as provided by applicable law, cause the CCC Capital Trust to
distribute the junior subordinated debt securities to the holders of the
preferred securities and common securities in exchange for these securities.
Junior
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subordinated debt securities distributed in exchange for preferred securities
held in book-entry form will also be issued, upon the distribution, in
book-entry form. We expect that any book-entry arrangements for the junior
subordinated debt securities would be substantially similar to those that will
apply to the preferred securities. See "Securities We May Issue--Legal Ownership
of Securities." The issuer will be obligated to use its best efforts to list the
junior subordinated debt securities on the American Stock Exchange, or such
other stock exchange or organization, if any, on which the preferred securities
are then listed, if an exchange distribution occurs. We can give no assurance as
to the market price of any junior subordinated debt securities that may be
distributed to the holders of the preferred securities.
CERTAIN COVENANTS OF CITADEL COMMUNICATIONS AND CITADEL BROADCASTING
The issuer will make the following covenants in the indenture:
- to hold, directly or indirectly through one or more subsidiaries, 100% of
the common securities, provided that permitted successors under the
indenture may succeed to its ownership of the common securities;
- not to terminate, wind-up or liquidate the CCC Capital Trust voluntarily,
except in connection with a distribution of junior subordinated debt
securities in exchange for preferred securities or as permitted by the
amended and restated declaration of trust; and
- to use its reasonable efforts, consistent with the amended and restated
declaration of trust, to cause the CCC Capital Trust to be classified as
a grantor trust or not to be classified as an association taxable as a
corporation for U.S. federal income tax purposes.
Restrictions on Certain Payments. If any of the following has occurred and
is continuing:
- any event of which the issuer has knowledge that, with notice or the
lapse of time, or both, would constitute an event of default with respect
to the junior subordinated debt securities of such series, and in respect
of which the issuer has not taken reasonable steps to cure;
- the junior subordinated debt securities are held by a CCC Capital Trust
and Citadel Communications is in default with respect to its payment of
any obligations under the guarantee relating to the preferred securities
issued by such CCC Capital Trust; or
- the issuer has given notice of an extension period with respect to the
junior subordinated debt securities of such series and has not rescinded
such notice, or such extension period, or any extension thereof,
then the issuer will not, and will not permit any subsidiary to:
- pay any dividends or distributions on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of the issuer's capital
stock;
- make any payment of principal of, or premium or interest, if any, on, or
repay or repurchase or redeem any debt securities of the issuer,
including other junior
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subordinated debt securities, that rank equally with or junior in
interest to the junior subordinated debt securities; or
- make any guarantee payments with respect to any guarantee by the issuer
of the debt securities of any subsidiary if such guarantee ranks equally
with or junior in interest to the junior subordinated debt securities;
provided that the issuer may continue to:
- redeem or purchase any rights pursuant to any stockholder protection
rights plan and declare a dividend of such rights or the issuance of
stock under such plans;
- purchase common stock related to the issuance of common stock under any
of Citadel Communications' benefit plans for its directors, officers or
employees; and
- in the case where the issuer is Citadel Broadcasting, pay any dividends
or distributions in common stock and 13 1/4% Exchangeable Preferred Stock
of Citadel Broadcasting.
MODIFICATION OF INDENTURE
There are three types of changes the issuer can make to the indenture and
the junior subordinated debt securities.
Changes Requiring a Majority Vote. The first type of change to the
indenture and the junior subordinated debt securities is the kind that requires
a vote in favor by holders of junior subordinated debt securities owning a
majority of the principal amount of the outstanding securities of the particular
series affected.
Changes Not Requiring Approval. The second type of change does not require
any vote of the holders of the junior subordinated debt securities. This type is
limited to (1) curing ambiguities, defects or inconsistencies as long as such
changes do not adversely affect the interests of the holders of the junior
subordinated debt securities or the related preferred securities in any material
respect and (2) qualifying, or maintaining the qualification of, the indenture
under the Trust Indenture Act.
Changes Requiring Your Approval. The third type of change cannot be made to
your junior subordinated debt securities without your specific approval. They
are:
- a change in the stated maturity of the junior subordinated debt
securities, except to shorten or extend it as permitted by the indenture,
a reduction in the principal amount of the junior subordinated debt
securities, or a reduction in the rate or extension of the time of
payment of interest on the junior subordinated debt securities, except
for any permitted deferral in connection with an extension period, and
- a reduction in the percentage of principal amount of the outstanding
junior subordinated debt securities, the holders of which are required to
consent to any modification of the indenture.
Consent of the Related Preferred Security Holders. As long as the related
preferred securities are outstanding, the property trustee, as the holder of the
junior subordinated debt securities, will not be permitted to consent to any
modification, waiver or termination of the indenture without obtaining the
consent of the holders of preferred securities as required
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under the amended and restated declaration of trust. See "Description of the CCC
Capital Trusts Preferred Securities--Enforcement Rights."
EVENTS OF DEFAULT
You will have special rights if an event of default under the indenture
occurs and is not cured, as described later in this subsection.
The term event of default under the indenture means any of the following:
- The issuer does not pay interest or any Additional Sum on the junior
subordinated debt securities within 30 days of its due date, except that
a permitted deferral during an extension period will not be a default.
- The issuer does not pay the principal of the junior subordinated debt
securities when due, whether at maturity or upon redemption, except when
the maturity date has been extended as permitted by the indenture.
- The issuer remains in breach of any other covenant in the indenture in
any material respect for 90 days after it receives a notice of default
stating it is in breach. The notice must be sent by either the indenture
trustee or the holders of at least 25% in aggregate principal amount of
the outstanding junior subordinated debt securities.
- The issuer files for bankruptcy or certain other events in bankruptcy,
insolvency or reorganization occur.
Remedies If an Event of Default Occurs. If an event of default has occurred
and is continuing, either the indenture trustee or the holders of not less than
25% in aggregate principal amount of the outstanding junior subordinated debt
securities may declare the principal of all junior subordinated debt securities
to be due and payable immediately. If the preferred securities are outstanding
and the indenture trustee or those holders of junior subordinated debt
securities fail to exercise this right, the holders of at least 25% in aggregate
liquidation amount of the outstanding preferred securities may do so. The
holders of a majority in aggregate principal amount of the outstanding junior
subordinated debt securities may also cancel any declaration of acceleration. If
they do not exercise this right, the holders of a majority in aggregate
liquidation amount of the outstanding preferred securities may do so.
The holders of a majority in aggregate principal amount of the outstanding
junior subordinated debt securities may, on behalf of the holders of all junior
subordinated debt securities, waive any default under the indenture other than:
- a default in the payment of principal or interest, and any Additional
Sum, unless the default has been cured and a sum sufficient to pay all
matured installments of interest and principal, and any Additional Sum,
due otherwise than by acceleration has been deposited with the indenture
trustee, or
- a default in respect of a covenant that under the indenture cannot be
modified or amended without the consent of the holder of each affected
junior subordinated debt security.
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If they do not exercise this right, the holders of a majority in aggregate
liquidation amount of the outstanding preferred securities may do so.
The holders of a majority in aggregate principal amount of outstanding
junior subordinated debt securities will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
indenture trustee. This right, as well as the rights of the holders of junior
subordinated debt securities with regard to acceleration, cancellation and
waiver described above, will be subject to the enforcement rights of the holders
of preferred securities when the preferred securities are outstanding. See
"Description of the CCC Capital Trusts Preferred Securities--Enforcement
Rights." The issuer will be obligated to provide the indenture trustee, and, if
the preferred securities are outstanding, the property trustee, annually a
certificate as to whether or not the issuer is in compliance with the provisions
of the indenture applicable to it.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The issuer is generally permitted to consolidate or merge with another
company or firm. The issuer is also permitted to sell, lease or otherwise
transfer substantially all of its assets to another company or firm. However,
the issuer may not take any of these actions unless all the following conditions
are met:
- If the issuer merges out of existence or transfers assets, the entity
into which it merges or to which it sells its assets must be a
corporation organized under the laws of the United States, any state
thereof or the District of Columbia and it must agree to be legally
responsible for the issuer's obligations in respect of the junior
subordinated debt securities and the indenture and, in the case where the
issuer is Citadel Communications, Citadel Communications' obligations in
respect of the guarantee and the expense agreement.
- Immediately after the merger or transfer of assets, no default on the
junior subordinated debt securities can exist. A default for this purpose
would also include any event that would be an event of default if the
requirements for giving a default notice or its default having to exist
for a specific period of time were disregarded.
The conditions referred to above will apply only with respect to a transaction
specifically mentioned above; other transactions, including transactions that
involve a change of control of the issuer or an acquisition by the issuer of the
stock or assets of another person, would not be subject to these conditions.
The general provisions of the indenture do not afford holders of the junior
subordinated debt securities, or related preferred securities, protection in the
event of a highly leveraged or other transaction involving the issuer that may
adversely affect the interests of those holders.
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SATISFACTION AND DISCHARGE
The indenture provides that, except as noted below, the indenture will
cease to be of further effect, and the issuer will be deemed to have satisfied
and discharged the indenture, when the following conditions, among others, have
been satisfied:
- All junior subordinated debt securities not previously delivered to the
indenture trustee for cancellation have become due and payable or will
become due and payable at their stated maturity or on a redemption date
within one year.
- The issuer deposits with the indenture trustee, in trust, funds
sufficient to pay the entire indebtedness on those debt securities not
previously delivered for cancellation, for the principal and interest,
including any Additional Sums, to the date of the deposit, for debt
securities that have become due and payable, or to the stated maturity or
the redemption date, as the case may be, for debt securities that have
not.
The issuer will remain obligated to provide for registration of transfer and
exchange and notices of redemption and in certain other ministerial respects.
SUBORDINATION
Unless the prospectus supplement provides otherwise, the following
provisions will apply to the junior subordinated debt securities.
The payment of principal, any premium and interest on the junior
subordinated debt securities is subordinated in right of payment to the prior
payment in full of all of the issuer's Senior Debt (as defined below). This
means that in certain circumstances where the issuer may not be making payments
on all of its debt obligations as they come due, the holders of all of the
issuer's Senior Debt will be entitled to receive payment in full of all amounts
that are due or will become due on the Senior Debt before you and the other
registered holders of junior subordinated debt securities will be entitled to
receive any payment or distribution on the junior subordinated debt securities.
These circumstances include the following circumstances:
- the issuer makes a payment or distributes assets to creditors upon any
liquidation, dissolution, winding up or reorganization, or as part of an
assignment or marshalling of its assets for the benefit of its creditors;
- the issuer files for bankruptcy or certain other events in bankruptcy,
insolvency or similar proceedings occur;
- the issuer makes any assignment for the benefit of creditors; and
- the issuer is subject to any other marshalling of its assets.
In addition, the issuer is generally not permitted to make payments of
principal, any premium or interest on the junior subordinated debt securities if
the issuer defaults in its obligation to make payments on Senior Debt and does
not cure such default.
After payment in full of all amounts owed on Senior Debt, the holders of
junior subordinated debt securities, together with the holders of any equally
ranking obligations, will be paid from the remaining assets of the issuer the
amounts owed on the junior subordinated
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debt securities and those other obligations before any payment or other
distribution will be made on any capital stock or any junior ranking obligations
of the issuer.
If any holder of junior subordinated debt securities receives any payment
or distribution on his securities before all the Senior Debt has been paid in
full, the holder must receive the payment or distribution in trust for the
benefit of, and must pay over or deliver and transfer the same to, the holders
of the Senior Debt at the time outstanding to the extent necessary to pay all
the Senior Debt in full.
These subordination provisions mean that if the issuer is insolvent, a
holder of its Senior Debt may ultimately receive out of its assets more than a
holder of the same amount of its junior subordinated debt securities, and a
creditor of the issuer that is owed a specific amount but who owns neither the
issuer's Senior Debt nor the junior subordinated debt securities may ultimately
receive less than a holder of the same amount of Senior Debt and an equal amount
on a pro rata basis as a holder of junior subordinated debt securities.
The term Senior Debt means any obligation of the issuer to its creditors,
whether existing now or incurred in the future, unless in the instrument
creating or evidencing the obligation or pursuant to which the obligation is
outstanding, it is provided that the obligation is not superior in right of
payment to the junior subordinated debt securities, and other than trade
accounts payable and accrued liabilities arising in the ordinary course of
business. Senior Debt will also include any subordinated debt of the issuer that
does not fall within the specific exceptions described above.
The indenture places no limitation on the amount of additional Senior Debt
that the issuer may incur in the future. The issuers expect to incur substantial
amounts of additional Senior Debt from time to time.
THE GUARANTEE OF CITADEL BROADCASTING'S JUNIOR SUBORDINATED DEBT SECURITIES
The indenture will include a full, unconditional and irrevocable guarantee
by Citadel Communications, on a subordinated basis, of all payments in respect
of Citadel Broadcasting's junior subordinated debt securities. The junior
subordinated debt securities guarantee does not require Citadel Communications
to pay any interest deferred by Citadel Broadcasting during a valid extension
period.
Citadel Communications' obligations under the junior subordinated debt
securities guarantee will constitute unsecured obligations of Citadel
Communications and will rank junior to all other existing liabilities of Citadel
Communications and will rank equally with any guarantee now or hereafter entered
into by Citadel Communications in respect of any preferred security of any
affiliate of Citadel Communications. Accordingly, the rights of the holders of
Citadel Broadcasting's junior subordinated debt securities to receive payments
under the junior subordinated debt securities guarantee will be subject to the
rights of the holders of any obligations of Citadel Communications that are
senior in priority to Citadel Communications' obligations under the junior
subordinated securities guarantee (including, but not limited to, obligations
constituting Senior Debt of Citadel Communications). Furthermore, the holders of
Citadel Communications' obligations that rank senior to the obligations under
the junior subordinated debt securities guarantee will be entitled to the same
rights upon payment default or dissolution, liquidation and reorganization in
respect of the junior subordinated debt securities guarantee that inure to the
holders of Senior Debt of
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Citadel Communications as against the holders of junior debt securities. The
terms of Citadel Broadcasting's junior subordinated debt securities provide that
each holder, by acceptance thereof, agrees to the subordination provisions and
other terms of the junior subordinated debt securities guarantee.
The junior subordinated debt securities guarantee will terminate and be of
no further force or effect upon payment in full of the redemption price of
Citadel Broadcasting's junior subordinated debt securities or the preferred
securities, or upon payment in full of the amounts payable upon liquidation of
the CCC Capital Trust; provided, however, that the junior subordinated debt
securities guarantees will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of the preferred securities must
restore payment of any sums paid under the preferred securities, the junior
subordinated debt securities received in exchange for the preferred securities
or the junior subordinated debt securities guarantee.
PAYMENT AND PAYING AGENTS
Unless the junior subordinated debt securities have been distributed in
exchange for the preferred securities, payments in respect of the junior
subordinated debt securities will be made to or upon the order of the property
trustee. If in the future the junior subordinated debt securities have been
distributed in exchange for the preferred securities, payments in respect of the
junior subordinated debt securities will be made in accordance with provisions
similar to those applicable to payments in respect of the preferred securities,
described under "Description of the CCC Capital Trusts Preferred
Securities--Payment and Paying Agency."
If any interest, principal or other amount is payable in respect of the
junior subordinated debt securities on a day that is not a business day, the
payment may be made on the next succeeding business day unless that business day
is in a different calendar year, in which case the payment may be made on the
next preceding business day. Each payment made on the next succeeding or
preceding business day as described above may be made with the same force and
effect as if made on the day on which the payment is originally payable.
Any monies deposited with the indenture trustee or any paying agent, or
then held by the issuer in trust, for the payment of any amount due and payable
on any junior subordinated debt securities, and remaining unclaimed for two
years after the amount has become due and payable, will, at the request of the
issuer, be repaid to the issuer. Thereafter, the holders of those junior
subordinated debt securities will look, as general unsecured creditors, only to
the issuer for payment of those amounts.
NOTICES
Copies of notices to holders of junior subordinated debt securities under
the indenture will be given to the holders of the preferred securities in
accordance with provisions similar to those described in "Description of the CCC
Capital Trusts Preferred Securities--Notices" and to the property trustee. If in
the future the junior subordinated debt securities have been distributed in
exchange for the preferred securities, notices to holders of preferred
securities will be given to those holders in accordance with the provisions for
notices to the holders of the preferred securities referred to above.
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REGARDING THE INDENTURE TRUSTEE
The indenture trustee will have all the duties and responsibilities
specified with respect to an indenture trustee under the Trust Indenture Act.
However, the indenture trustee will have no obligation to act at the request of
any holder of junior subordinated debt securities, unless such holder offers to
reimburse the indenture trustee for reasonable costs, expenses and liabilities
that it might incur. Also, the indenture trustee will not be required to expend
its own funds or otherwise incur personal financial liability in the performance
of its duties if it reasonably believes that repayment is not reasonably
certain.
GOVERNING LAW
The indenture provides that the indenture and the junior subordinated debt
securities are to be governed by and construed in accordance with New York law.
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DESCRIPTION OF THE GUARANTEE AND
EXPENSE AGREEMENT RELATING TO THE PREFERRED SECURITIES
This section summarizes the main provisions of the preferred securities
guarantee and the expense agreement, but it does not describe all the
provisions. Consequently, this summary is qualified by reference to the full
text of the guarantee and the expense agreement. We have filed forms of the
guarantee and the expense agreement as exhibits to the registration statement of
which this prospectus is part.
This section uses terms that are defined in the guarantee and the expense
agreement. Unless we define those terms in this section, we intend them to have
the meanings given them in the guarantee or the expense agreement, as
applicable.
GENERAL
Citadel Communications will execute the guarantee when the preferred
securities are issued. The Bank of New York will act as indenture trustee under
the guarantee for the purpose of compliance with the Trust Indenture Act, and
the guarantee will be qualified as an indenture under the Trust Indenture Act.
The Bank of New York will also act as guarantee trustee and will hold the
guarantee for the benefit of the holders of the preferred securities.
Under the guarantee, Citadel Communications will irrevocably agree to pay
in full, on a subordinated basis and to the extent described below, to the
holders of the preferred securities, the guarantee payments as and when due,
regardless of any defense, right of set-off or counterclaim that the CCC Capital
Trust may have or assert other than the defense of payment. The following
payments in respect of the preferred securities, to the extent not paid by or on
behalf of the CCC Capital Trust, are guarantee payments:
- any accumulated and unpaid distributions required to be paid on the
preferred securities, to the extent that the CCC Capital Trust has funds
legally and immediately available to pay them;
- any redemption price required to be paid on the preferred securities, to
the extent that the CCC Capital Trust has funds legally and immediately
available to pay it; and
- upon a voluntary or involuntary termination, winding-up or liquidation of
the Trust (unless the junior subordinated debt securities are distributed
to holders of the preferred securities in exchange for those securities),
the lesser of (1) the payments made on liquidation for the preferred
securities and (2) the amount of assets of the CCC Capital Trust
remaining available for distribution to holders of preferred securities
after satisfaction of liabilities to creditors of the CCC Capital Trust
as required by applicable law.
Citadel Communications may satisfy its obligation to make a guarantee payment by
paying the required amounts directly to the holders of the preferred securities
or by causing the CCC Capital Trust to pay them to the holders.
Citadel Communications will be required to make payments under the
guarantee only to the extent that the CCC Capital Trust has funds sufficient to
make payments in respect of its obligations under the preferred securities. If
and to the extent Citadel Communications does not make payments on the junior
subordinated debt securities, the CCC Capital Trust will not be able to make
payments on the preferred securities and will not have funds available to do
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so. However, through the guarantee, the amended and restated declaration of
trust, the junior subordinated debt securities, the junior subordinated
indenture and the expense agreement, taken together, Citadel Communications will
have fully, irrevocably and unconditionally guaranteed all the CCC Capital
Trust's obligations under the preferred securities. See "Relationship Among
Preferred Securities, Junior Subordinated Debt Securities, Preferred Securities
Guarantee and Expense Agreement."
STATUS OF THE GUARANTEE
The guarantee will be a general unsecured obligation of Citadel
Communications and will be subordinated in right of payment to all liabilities
of Citadel Communications (other than any similar guarantees, the expense
agreement and any other similar expense agreement), including all liabilities to
trade creditors, and will rank equally with the most senior class of any
preferred stock that Citadel Communications may issue. Because Citadel
Communications is a holding company, its obligations under the guarantee, like
its obligations under the junior subordinated debt securities, will also be
effectively subordinated to all existing and future liabilities of Citadel
Communications' subsidiaries. See "Description of the Junior Subordinated Debt
Securities--Subordination."
AMENDMENTS, ASSIGNMENT AND SUCCESSION
The guarantee may not be amended without the prior approval of the holders
of a majority of the aggregate liquidation amount of the outstanding preferred
securities, other than in ways that do not adversely affect the rights of
holders of the preferred securities in any material respect, in which case no
approval will be required. The manner of obtaining any such approval will be
similar to the manner in which any approval to amend the amended and restated
declaration of trust may be obtained. See "Description of the CCC Capital Trusts
Preferred Securities--Voting Rights; Amendment of the Amended and Restated
Declaration of Trust."
Citadel Communications may not assign its obligations under the guarantee
without obtaining the approval of the holders required to amend that agreement.
However, any permitted successor to Citadel Communications' obligations under
the indenture will also succeed to its obligations under the guarantee. See
"Description of the Junior Subordinated Debt Securities--Consolidation, Merger,
Sale of Assets and Other Transactions." The guarantee will bind Citadel
Communications' successors, assigns, receivers, trustees and representatives and
will inure to the benefit of the holders of the outstanding preferred
securities.
EVENTS OF DEFAULT
An event of default under the guarantee will occur if Citadel
Communications fails to make any guarantee payment when obligated to do so, or
if Citadel Communications fails to perform any other obligation and the default
remains unremedied for 30 days. The holders of a majority in aggregate
liquidation amount of the outstanding preferred securities will have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the guarantee trustee or to direct the exercise of any trust or
power conferred upon the guarantee trustee under the guarantee.
The guarantee will guarantee payment and not collection. This means that
any holder of outstanding preferred securities may begin a legal proceeding
directly against Citadel
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Communications to enforce its rights under the guarantee without first beginning
a legal proceeding against the CCC Capital Trust, the guarantee trustee or any
other party.
Citadel Communications, as guarantor, will be obligated to file annually
with the guarantee trustee a certificate as to Citadel Communications'
compliance with all the conditions and covenants applicable to it under the
guarantee.
REGARDING THE GUARANTEE TRUSTEE
The guarantee trustee undertakes to perform only those duties that are
specifically set forth in the guarantee, except that, after a default by Citadel
Communications under the guarantee, it must exercise the same degree of care and
skill as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the guarantee trustee is under no obligation
to exercise any of the powers vested in it by the guarantee at the request of
any holder of preferred securities unless it is offered reasonable indemnity
against the costs, expenses and liabilities that it might incur as a result.
TERMINATION OF THE GUARANTEE
The guarantee will terminate and be of no further force or effect when:
- the guarantee payments have been paid in full by Citadel Communications,
the CCC Capital Trust or both; or
- the junior subordinated debt securities are distributed to the holders of
the preferred securities in exchange for their securities.
Until that time, the guarantee will remain in full force and effect. In
addition, the guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of the preferred securities must
restore payment of any sums paid to it under the preferred securities or the
guarantee.
GOVERNING LAW
The guarantee provides that it is to be governed by and construed in
accordance with New York law.
EXPENSE AGREEMENT
In the expense agreement, Citadel Communications will irrevocably and
unconditionally guarantee to each person to whom the CCC Capital Trust becomes
indebted or liable the full payment of all the CCC Capital Trust's costs,
expenses and liabilities, other than the obligations of the CCC Capital Trust to
pay amounts due to the holders of the preferred securities and common securities
pursuant to the terms of those securities. The expense agreement will be
enforceable by third parties.
Citadel Communications' obligations under the expense agreement will be
subordinated in right of payment to the same extent as the guarantee. Citadel
Communications' obligations under the expense agreement will be subject to
provisions regarding amendment, termination, assignment, succession and
governing law similar to those applicable to the guarantee.
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RELATIONSHIP AMONG PREFERRED SECURITIES, JUNIOR SUBORDINATED
DEBT SECURITIES, PREFERRED SECURITIES GUARANTEE AND
EXPENSE AGREEMENT
FULL AND UNCONDITIONAL GUARANTEE
Taken together, Citadel Communications' obligations under the amended and
restated declaration of trust, the junior subordinated indenture, the preferred
securities guarantee and the expense agreement will provide a full, irrevocable
and unconditional guarantee of the CCC Capital Trust's obligations under the
preferred securities. No single document standing alone or operating in
conjunction with fewer than all the other documents will provide this guarantee.
It is only the combined operation of these documents that will have the effect
of providing a full, irrevocable and unconditional guarantee of the CCC Capital
Trust's obligations under the preferred securities.
If and to the extent that the issuer does not make payments on the junior
subordinated debt securities, and in the case of Citadel Broadcasting's junior
subordinated debt securities, Citadel Communications does not make payments on
the junior subordinated debt securities guarantee, the CCC Capital Trust will
not have funds available for payments on the preferred securities. The guarantee
will not apply to payment of any amounts due on the preferred securities when
the CCC Capital Trust does not have available funds to pay those amounts. In
that event, the remedy of a holder of preferred securities is to exercise its
right of direct action against the issuer--that is, to begin a legal proceeding
directly against the issuer for enforcement of the issuer's obligations under
junior subordinated debt securities having a principal amount equal to the
liquidation amount of the preferred securities held by the holder or, in the
case of Citadel Broadcasting's junior subordinated debt securities, a legal
proceeding against Citadel Communications under the junior subordinated debt
securities guarantee.
If the issuer makes payment on the junior subordinated debt securities or
in the case of Citadel Broadcasting's junior subordinated debt securities,
Citadel Communications makes payment on the junior subordinated debt securities
guarantee when Citadel Broadcasting defaults, and the CCC Capital Trust has
funds available to make payments on the preferred securities but fails to do so,
a holder of preferred securities may begin a legal proceeding against Citadel
Communications to enforce Citadel Communications' obligations under the
preferred securities guarantee to make these payments. In the event that the CCC
Capital Trust receives payments on the junior subordinated debt securities, but
these funds are unavailable for payment on the preferred securities because of
claims made by creditors of the CCC Capital Trust, Citadel Communications would
be obligated under the expense agreement to pay those claims.
The obligations of the issuer under the junior subordinated debt securities
will be subordinated in right of payment to all Senior Debt of the issuer. They
will be subordinated in the manner described in "Description of the Junior
Subordinated Debt Securities--Subordination." The obligations of Citadel
Communications under the preferred securities guarantee and the expense
agreement will be subordinated in right of payment to all liabilities of Citadel
Communications (other than similar guarantees and expense agreements), including
liabilities to trade creditors, and will rank equally with the most senior class
of preferred stock that Citadel Communications may issue.
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SUFFICIENCY OF PAYMENTS
As long as payments are made when due on the junior subordinated debt
securities, those payments should be sufficient to fund distributions and other
amounts payable on the preferred securities, primarily because:
- The aggregate principal amount of the junior subordinated debt securities
will equal the aggregate liquidation amount of the preferred securities
and the common securities.
- The interest rate, interest payment dates and other payment dates for the
junior subordinated debt securities will match the distribution rate,
distribution dates and other payment dates for the preferred securities.
- The expense agreement provides that Citadel Communications will pay any
and all costs, expenses and liabilities of the CCC Capital Trust, other
than the CCC Capital Trust's obligations under the preferred securities
and common securities.
- The amended and restated declaration of trust provides that the CCC
Capital Trust will not engage in any activity that is not consistent with
the limited purposes of the CCC Capital Trust.
Notwithstanding anything to the contrary in the junior subordinated
indenture, Citadel Communications will have the right to set off any payment it
makes under the guarantee in respect of the preferred securities against any
payment it is otherwise required to make under the junior subordinated indenture
in respect of the junior subordinated debt securities guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of preferred securities may begin a legal proceeding directly
against the issuer to enforce its right of direct action under the junior
subordinated indenture without first beginning a legal proceeding against the
CCC Capital Trust, the property trustee or any other party. A holder of
preferred securities may also begin a legal proceeding directly against Citadel
Communications to enforce its rights under the preferred securities guarantee
without first instituting a legal proceeding against the guarantee trustee, the
CCC Capital Trust or any other party.
A default or event of default under any Senior Debt of the issuer would not
be a default with respect to the preferred securities or the junior subordinated
debt securities. However, in the event of a payment default under, or
acceleration of, any Senior Debt of the issuer, the subordination provisions of
the junior subordinated indenture, the preferred securities guarantee and the
expense agreement provide that no payments may be made in respect of the junior
subordinated debt securities, the preferred securities guarantee or the expense
agreement until the Senior Debt has been paid in full or any payment default
under that debt has been cured or waived. See "Description of the Junior
Subordinated Debt Securities--Subordination."
LIMITED PURPOSE OF TRUST
The preferred securities will evidence a preferred undivided beneficial
interest in the assets of the CCC Capital Trust, and the CCC Capital Trust will
exist solely to issue and sell the preferred securities and common securities,
invest the sale proceeds in the junior
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subordinated debt securities and engage only in such other activities as may be
necessary or incidental to those activities. A principal difference between the
rights of a holder of preferred securities against the CCC Capital Trust and
those of a holder of junior subordinated debt securities is that a holder of
junior subordinated debt securities will be entitled to receive from Citadel
Communications all amounts payable on the junior subordinated debt securities
from the issuer and, in the case where Citadel Broadcasting is the issuer, from
Citadel Communications under the junior subordinated debt securities guarantee,
while a holder of preferred securities will be entitled to receive from the CCC
Capital Trust (or from Citadel Communications under the preferred securities
guarantee) amounts payable on the preferred securities only if and to the extent
the CCC Capital Trust has funds available to pay those amounts.
RIGHTS UPON DISSOLUTION
Upon any voluntary or involuntary dissolution of the CCC Capital Trust, the
holders of preferred securities will be entitled to receive a like amount of
junior subordinated debt securities in exchange for their preferred securities,
subject to prior satisfaction of liabilities to creditors of the CCC Capital
Trust as required by applicable law. If the property trustee determines that a
distribution of junior subordinated debt securities is not practical, the
holders of preferred securities will be entitled to receive the liquidation
distribution out of the assets held by the CCC Capital Trust after satisfaction
of those liabilities. See "Description of the CCC Capital Trusts Preferred
Securities--Liquidation Distribution upon Dissolution."
Upon any voluntary or involuntary liquidation or bankruptcy of the issuer,
the property trustee, as registered holder of the junior subordinated debt
securities, would be a subordinated creditor of the issuer, subordinated in
right of payment to all Senior Debt as set forth in the junior subordinated
indenture. However, the property trustee would be entitled to receive payment in
full of all amounts payable with respect to the junior subordinated debt
securities before any holders of the issuer's capital stock receive payments or
distributions.
In the light of the effective guarantee provided by the combined operation
of the documents described above and the subordinated status of the obligations
they evidence, the positions of a holder of preferred securities and a holder of
junior subordinated debt securities, relative to other creditors and to
stockholders of the issuer, in the event of liquidation or bankruptcy of the
issuer, should be substantially the same.
ACCOUNTING TREATMENT OF PREFERRED SECURITIES
For financial reporting purposes, each CCC Capital Trust will be treated as
a subsidiary of Citadel Communications and, accordingly, the accounts of each
CCC Capital Trust will be included in the consolidated financial statements of
Citadel Communications. The preferred securities will be presented as a separate
line item in the consolidated balance sheets of Citadel Communications and
appropriate disclosures about the preferred securities, the guarantee and the
junior subordinated debt securities will be included in the notes to the
consolidated financial statements. For financial reporting purposes, Citadel
Communications will record distributions payable on the preferred securities as
minority interest in net income (loss) of consolidated subsidiaries in the
consolidated statements of operations.
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SELLING STOCKHOLDERS
The selling stockholders named below may sell shares of Citadel
Communications common stock from time to time. If and when shares of common
stock are to be offered and sold by one or more selling stockholders, the
relevant prospectus supplement will identify the selling stockholders selling in
that offering as well as the number of shares then owned, and to be offered, by
such selling stockholders.
The following table sets forth the name of each selling stockholder and
each such stockholder's relationship to Citadel Communications.
<TABLE>
<CAPTION>
SELLING STOCKHOLDER RELATIONSHIP TO CITADEL COMMUNICATIONS
------------------- --------------------------------------
<S> <C>
Lawrence R. Wilson Mr. Wilson has been Chairman, Chief
Executive Officer and President of Citadel
Communications since it was incorporated in
1993.
Donna L. Heffner Ms. Heffner has served as an officer of
Citadel Communications since it was
incorporated in 1993. She currently serves
as Vice President, Chief Financial Officer
and Secretary.
D. Robert Proffitt Mr. Proffitt has served as an officer of
Citadel Communications since it was
incorporated in 1993. He currently serves as
Vice President of Citadel Communications and
President and Chief Operating Officer of
Citadel Broadcasting.
Stuart R. Stanek Mr. Stanek has served as an officer of
Citadel Communications since it was
incorporated in 1993. He currently serves as
Vice President responsible for east region
operations.
Peter J. Benedetti Mr. Benedetti became an officer of Citadel
Communications in October 1998 and currently
serves as Vice President responsible for
west region operations.
Edward T. Hardy Mr. Hardy served as an officer of Citadel
Communications from January 1997 to November
1999. He currently serves as a consultant to
Citadel Communications.
Ted L. Snider, Sr. Mr. Snider became a director of Citadel
Communications in November 1997 following
Citadel Communications' October 1997
acquisition of Snider Corporation, a
corporation owned by Mr. Snider and his
spouse, Jane J. Snider.
Jane J. Snider Ms. Snider is the spouse of Ted L. Snider,
Sr.
</TABLE>
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<PAGE> 81
<TABLE>
<CAPTION>
SELLING STOCKHOLDER RELATIONSHIP TO CITADEL COMMUNICATIONS
------------------- --------------------------------------
<S> <C>
Rio Bravo Enterprise Associates, L.P. Lawrence R. Wilson, Chairman, Chief
Executive Officer and President of Citadel
Communications, owns all of the capital
stock of Rio Bravo, Inc., the general
partner of Rio Bravo Enterprise Associates,
L.P.
DVS Management, Inc. John E. von Schlegell, a director of Citadel
Communications since January 1997, is the
President and a shareholder of DVS
Management, Inc.
The Endeavour Capital Fund Limited John E. von Schlegell, a director of Citadel
Partnership Communications since January 1997, is the
Managing Director of The Endeavour Capital
Fund Limited Partnership and the President
and a shareholder of DVS Management, Inc.,
the general partner of The Endeavour Capital
Fund Limited Partnership.
ABRY Broadcast Partners II, L.P. All of the shares beneficially owned by ABRY
(and its general partner, Broadcast Partners II, L.P. are held under
ABRY Capital, L.P.) an Amended and Restated Voting Trust
Agreement dated October 15, 1997. During the
term of the Amended and Restated Voting
Trust Agreement, the voting trustee has the
right to vote the shares of stock subject to
that agreement and to take part in any
stockholders' meetings, including the right
to vote the shares for the election of
directors of Citadel Communications. The
voting trustee is Harlan A. Levy.
Dispositive power with respect to these
shares is held by Royce Yudkoff, the
President of ABRY Holdings, Inc., the
general partner of ABRY Capital, L.P., the
general partner of ABRY Broadcast Partners
II, L.P. Royce Yudkoff was a director of
Citadel Communications for a portion of 1996
and 1997.
</TABLE>
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<PAGE> 82
PLAN OF DISTRIBUTION
Citadel Communications, the CCC Capital Trusts and the selling stockholders
may sell the securities described in this prospectus to one or more underwriters
for public offering, or may sell the securities to investors directly or through
agents. The name of any such underwriter or agent involved in the offer and sale
of the securities, the amounts underwritten and the nature of its obligation to
take the securities will be named in the applicable prospectus supplement.
Credit Suisse First Boston Corporation may act as an underwriter or agent.
Citadel Communications, the CCC Capital Trusts and the selling stockholders have
reserved the right to sell the securities directly to investors on their own
behalf in those jurisdictions where they are authorized to do so. The sale of
the securities may be effected in transactions (a) on any national or
international securities exchange or quotation service on which the securities
may be listed or quoted at the time of sale, (b) in the over-the-counter market,
(c) in transactions otherwise than on such exchanges or in the over-the-counter
market or (d) through the writing of options.
Underwriters may offer and sell the securities at a fixed price or prices
that may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. They may offer
the securities on an exchange, which will be disclosed in the applicable
prospectus supplement. Citadel Communications, the CCC Capital Trusts and the
selling stockholders also may, from time to time, authorize dealers, acting as
their agents, to offer and sell the securities upon such terms and conditions as
set forth in the applicable prospectus supplement. In connection with the sale
of the securities, underwriters may receive compensation from Citadel
Communications, the CCC Capital Trusts and the selling stockholders in the form
of underwriting discounts or commissions and may also receive commissions from
purchasers of the securities for whom they may act as agent. Underwriters may
sell the securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions (which may be changed from time to time) from
the purchasers for whom they may act as agents.
Any underwriting compensation paid by Citadel Communications, the
applicable CCC Capital Trust and the selling stockholders to underwriters or
agents in connection with the offering of the securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable prospectus supplement. The selling
stockholders, dealers and agents participating in the distribution of the
securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the securities may
be deemed to be underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements entered into
with Citadel Communications, the applicable CCC Capital Trust and the selling
stockholders, to indemnification against and contribution towards certain civil
liabilities, including any liabilities under the Securities Act.
Until the distribution of the securities is completed, rules of the SEC may
limit the ability of the underwriters to bid for and purchase the securities. As
an exception to these rules, the underwriters are permitted to engage in certain
transactions that stabilize the price of the securities. Such transactions
consist of bids or purchases for the purpose of pegging, fixing or maintaining
the price of the securities. If the underwriters create a short position in the
securities in connection with the offering, i.e., if they sell more securities
than are set forth on the cover page of the applicable prospectus supplement,
the underwriters may reduce
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<PAGE> 83
that short position by purchasing securities in the open market. The
underwriters may also impose a penalty bid on certain underwriters. This means
that if the underwriters purchase the securities in the open market to reduce
the underwriters' short position or to stabilize the price of the securities,
they may reclaim the amount of the selling concession from the underwriters who
sold those securities as part of the offering. In general, purchases of a
security for the purpose of stabilization or to reduce a short position could
cause the price of the security to be higher than it might be in the absence of
such purchases. The imposition of a penalty bid might also have an effect on the
price of a security to the extent that it were to discourage resales of the
security.
Any securities, other than common stock of Citadel Communications issued
hereunder, will be new issues of securities with no established trading market.
Any underwriters or agents to or through whom such securities are sold for
public offering and sale may make a market in such securities, but such
underwriters or agents will not be obligated to do so and may discontinue any
market making at any time without notice. No assurance can be given as to the
liquidity of the trading market for any such securities. The amount of expenses
expected to be incurred by us in connection with any issuance of securities will
be set forth in the prospectus supplement. Certain of the underwriters, dealers
or agents and their associates may engage in transactions with, and perform
services for, Citadel Communications, Citadel Broadcasting, the CCC Capital
Trusts, the selling stockholders and certain of their affiliates in the ordinary
course.
VALIDITY OF THE SECURITIES
The validity of any securities issued hereunder will be passed upon for
Citadel Communications and Citadel Broadcasting by Eckert Seamans Cherin &
Mellott, LLC, Pittsburgh, Pennsylvania, counsel to Citadel Communications and
Citadel Broadcasting, and for the CCC Capital Trusts by Richards, Layton &
Finger, P.A., Wilmington, Delaware, special Delaware counsel to Citadel
Communications and the CCC Capital Trusts. As to matters of Nevada law, Eckert
Seamans Cherin & Mellott, LLC will rely upon the opinion of Lionel, Sawyer &
Collins, Las Vegas, Nevada. Unless otherwise indicated in the applicable
prospectus supplement, the validity of any securities issued hereunder by
Citadel Communications or Citadel Broadcasting will be passed upon for any
agents or underwriters by Shearman & Sterling, New York, New York.
INDEPENDENT AUDITORS
The consolidated financial statements of Citadel Communications Corporation
and subsidiary as of December 31, 1997 and 1998, and for each of the years in
the three-year period ended December 31, 1998, have been incorporated by
reference into this prospectus and registration statement in reliance upon the
report of KPMG LLP, independent certified public accountants, with respect
thereto and incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The consolidated financial statements of Citadel Broadcasting Company as of
December 31, 1997 and 1998, and for each of the years in the three-year period
ended December 31, 1998, have been incorporated by reference into this
prospectus and registration statement in reliance upon the report of KPMG LLP,
independent certified public accountants, with
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<PAGE> 84
respect thereto and incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing.
The consolidated financial statements of Tele-Media Broadcasting Company
and its partnership interests as of December 31, 1996 and 1995 and for each of
the three years in the three-year period ended December 31, 1996 included in
Citadel Communications Corporation's Current Report on Form 8-K filed on
December 10, 1999 and Citadel Broadcasting Company's Current Report on Form 8-K
filed on December 10, 1999, which are incorporated by reference in this
prospectus and registration statement, have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report incorporated herein, and
have been incorporated by reference herein in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements of Fuller-Jeffrey Broadcasting
Companies, Inc. and subsidiaries as of December 31, 1998 and for the year then
ended have been incorporated by reference into this prospectus and registration
statement in reliance upon the report of KPMG LLP, independent certified public
accountants, with respect thereto and incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Citywide Communications, Inc. as
of December 31, 1998 and for the year then ended have been incorporated by
reference into this prospectus and registration statement in reliance upon the
report of Faulk & Winkler LLC, certified public accountants, with respect
thereto and incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The financial statements of Wicks Radio Group, a division of Wicks
Broadcast Group Limited Partnership, as of December 31, 1998 and for the year
then ended have been incorporated by reference into this prospectus and
registration statement in reliance upon the report of KPMG LLP, independent
certified public accountants, with respect thereto and incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
The combined financial statements of Broadcasting Partners Holdings Radio
Group as of December 31, 1997 and 1998 and for the period January 9, 1997 (date
of inception) through December 31, 1997 and for the year ended December 31, 1998
have been incorporated by reference into this prospectus and registration
statement in reliance upon the report of KPMG LLP, independent certified public
accountants, with respect thereto and incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing.
The combined financial statements of Liggett Broadcast, Inc., as of
December 31, 1998 and for the year then ended have been incorporated by
reference into this prospectus and registration statement in reliance upon the
report of Andrews Hooper & Pavlik P.L.C., independent certified public
accountants, with respect thereto and incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Caribou Communications Co., as of
December 31, 1998 and 1997 and for the years then ended have been incorporated
by reference into this prospectus and registration statement in reliance upon
the report of Cole & Reed, P.C., independent certified public accountants, with
respect thereto and incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing.
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<PAGE> 85
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses expected to be incurred in
connection with the issuance and distribution of the securities being
registered, other than underwriting discounts and commissions. All of the
amounts shown are estimates, except the SEC registration fee. All of the
expenses will be paid by the registrants, except, if any shares of common stock
of Citadel Communications are offered and sold by the selling stockholders, the
selling stockholders will pay a portion of the legal fees and expenses.
<TABLE>
<S> <C>
SEC registration fee........................................ $ 264,000
Printing expenses........................................... 200,000
Accounting fees and expenses................................ 300,000
Legal fees and expenses..................................... 300,000
Blue Sky fees and expenses.................................. 15,000
Trustee's and depositary's fees and expenses................ 30,000
Rating agency fees.......................................... 100,000
Nasdaq National Market listing fees......................... 17,500
Transfer agent fees......................................... 5,000
Miscellaneous............................................... 68,500
----------
TOTAL.................................................. $1,300,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
INDEMNIFICATION OF DIRECTORS AND OFFICERS OF CITADEL COMMUNICATIONS
CORPORATION AND CITADEL BROADCASTING COMPANY.
Section 78.7502 of the Nevada General Corporation Law (the "NGCL") empowers
a corporation to indemnify any person who was or is a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, does not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interest of the corporation, and with respect
to any criminal proceeding, he had reasonable cause to believe that his conduct
was unlawful.
Section 78.7502 of the NGCL also empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its
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<PAGE> 86
favor by reason of the fact that such person acted in any of the capacities set
forth above, against expenses (including amounts paid in settlement and
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted under similar
standards, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
to the corporation or for amounts paid in settlement to the corporation unless,
and only to the extent that, the court in which such action or suit was brought
or other court of competent jurisdiction shall determine upon application that
in view of all the circumstances of the case, that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 78.7502 of the NGCL further provides that, to the extent that a
director or officer of a corporation has been successful on the merits or
otherwise, in the defense of any action, suit or proceeding referred to above or
in the defense of any claim, issue or matter therein, he must be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith. Section 78.751 of the NGCL provides that
indemnification provided for by Section 78.7502 of the NGCL shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled,
except that such indemnification may not be made to any director or officer if a
final adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action, unless a court of competent jurisdiction orders otherwise,
utilizing the standard described in the immediately preceding paragraph.
The articles of incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of the officers and directors incurred
in defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by the officer or
director to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be indemnified by the
corporation; these provisions do not affect any rights to advancement of
expenses to which corporate personnel other than officers and directors may be
entitled under any contract or otherwise by law.
Any discretionary indemnification referred to above, unless ordered by a
court or paid as incurred in advance of final disposition upon receipt of a
proper undertaking to repay the same, must be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances. The
determination must be made: (i) by the stockholders; (ii) by the board of
directors by majority vote of a quorum consisting of directors who were not
parties to the act, suit or proceeding; (iii) if a majority vote of a quorum
consisting of directors who were not parties to the act, suit or proceeding so
orders, by independent legal counsel in a written opinion; or (iv) if a quorum
consisting of directors who were not parties to the act, suit or proceeding
cannot be obtained, by independent legal counsel in a written opinion.
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<PAGE> 87
Citadel Communications Corporation.
Citadel Communications' Amended and Restated Certificate of Incorporation
provides as follows:
"To the full extent permitted by law, the Corporation shall indemnify any
person made or threatened to be made a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that he
or she is or was a director of the Corporation or any predecessor of the
Corporation or serves or served any other enterprise as director at the request
of the Corporation or any predecessor of the Corporation."
Citadel Communications' Bylaws further implement the permissive provisions
of Section 78.751 of the NGCL discussed above.
As permitted by Section 78.037 of the NGCL, Citadel Communications' Amended
and Restated Certificate of Incorporation provides as follows:
"To the full extent permitted by the General Corporation Law of the State
of Nevada in effect from time to time and to no greater extent, no officer or
member of the Board of Directors shall be liable for monetary damages for breach
of fiduciary duty in his or her capacity as an officer or a director in any
action brought by or on behalf of the Corporation or any of its shareholders."
Section 78.037 currently provides that any such provision of a
corporation's articles of incorporation may not eliminate or limit the liability
of a director or officer for (a) acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law; or (b) the payment of dividends
in violation of the NGCL.
Citadel Communications maintains insurance to protect persons entitled to
indemnification pursuant to its Amended and Restated Certificate of
Incorporation and Bylaws and the NGCL against expenses, judgments, fines and
amounts paid in settlement, to the fullest extent permitted by the NGCL.
Citadel Broadcasting Company.
Article VI of Citadel Broadcasting Company's Restated Articles of
Incorporation provides as follows:
"To the full extent permitted by law, the Corporation shall indemnify
any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he or she is or was a director of the Corporation or any predecessor of the
Corporation or serves or served any other enterprise as director at the request
of the Corporation or any predecessor of the Corporation."
Citadel Broadcasting Company's Bylaws further implement the permissive
provisions of Sections 78.751 of the NGCL discussed above.
As permitted by Section 78.037 of the NGCL, Article V of Citadel
Broadcasting Company's Restated Articles of Incorporation provides as follows:
"To the full extent permitted by General Corporation Law of State of
Nevada in effect from time to time and to no greater extent, no officer or
member of the Board of Directors shall be liable for monetary damages for breach
of fiduciary duty in his or her
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capacity as an officer or a director in any action brought by or on behalf of
the Corporation or any of its shareholders."
Citadel Broadcasting Company maintains insurance to protect persons
entitled to indemnification pursuant to its amended and Restated Articles of
Incorporation and Bylaws and the NGCL against expenses, judgments, fines and
amounts paid in settlement, to the fullest extent permitted by the NGCL.
INDEMNIFICATION OF TRUSTEES OF AND OTHER PERSONS RELATED TO THE CCC CAPITAL
TRUSTS.
Under each amended and restated declaration of trust of the CCC Capital
Trusts, Citadel Communications will agree to indemnify each trustee,
administrator and paying agent of the CCC Capital Trusts, and any affiliate,
officer, director, shareholder, employee, representative or agent of any trustee
of the CCC Capital Trusts, and any employee or agent of the issuing CCC Capital
Trust (each an "Indemnified Person"), and to hold such Indemnified Person
harmless against, any and all loss, damage, claims, liability or expense
incurred without negligence, bad faith or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of the
declaration of trust, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties under the declaration of trust.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT(1)
- ------- -------------------------
<S> <C>
1.1* Form of Underwriting Agreement.
2.1 Asset Purchase Agreement dated October 27, 1999 by and
between Citadel Broadcasting Company and Broadcasting
Partners Holdings, L.P. (incorporated by reference to
Exhibit 2.1 to Citadel Communications Corporation's
Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1999).
2.2 Stock Purchase Agreement dated April 30, 1999 by and between
Robert F. Fuller and Citadel Broadcasting Company
(incorporated by reference to Exhibit 2.1 to Citadel
Broadcasting Company's Current Report on Form 8-K filed on
September 14, 1999).
2.3 Stock Purchase Agreement dated April 30, 1999 by and between
Joseph N. Jeffrey, Jr. and Citadel Broadcasting Company
(incorporated by reference to Exhibit 2.2 to Citadel
Broadcasting Company's Current Report on Form 8-K filed on
September 14, 1999).
2.4 Asset Purchase Agreement dated December 3, 1999 by and among
Liggett Broadcast, Inc., Rainbow Radio, LLC, New Tower,
Inc., LLJ Realty, LLC, Robert G. Liggett, Jr., Citadel
Communications Corporation, Citadel Broadcasting Company and
Citadel License, Inc. (incorporated by reference to Exhibit
2.4 to Citadel Communications Corporation's Current Report
on Form 8-K filed on December 10, 1999).
4.1 Amended and Restated Certificate of Incorporation of Citadel
Communications Corporation (incorporated by reference to
Exhibit 3(i) to Citadel Communications Corporation's
Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 1998).
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT(1)
- ------- -------------------------
<S> <C>
4.2 Indenture dated as of July 1, 1997 among Citadel
Broadcasting Company, Citadel License, Inc. and The Bank of
New York, as Trustee, with the forms of 10 1/4% Senior
Subordinated Notes due 2007 and 10 1/4% Series B Senior
Subordinated Notes due 2007 included therein (incorporated
by reference to Exhibit 4.1 to Citadel Broadcasting
Company's Registration Statement No. 333-36771 on Form S-4).
4.3 Indenture dated as of July 1, 1997 among Citadel
Broadcasting Company, Citadel License, Inc. and The Bank of
New York, as Trustee, with the forms of 13 1/4% Exchange
Debentures due 2009 and 13 1/4% Series B Exchange Debentures
due 2009 included therein (incorporated by reference to
Exhibit 4.2 to Citadel Broadcasting Company's Registration
Statement No. 333-36771 on Form S-4).
4.4 Amendment to Certificate of the Designations, Voting Powers
Preferences and Relative, Participating, Optional and Other
Special Rights and Qualifications, Limitations or
Restrictions of the 13 1/4% Series A Exchangeable Preferred
Stock and the 13 1/4% Series B Exchangeable Preferred Stock
of Citadel Broadcasting Company (incorporated by reference
to Exhibit 3(i)(b) to Citadel Broadcasting Company's
Registration Statement No. 333-36771 on Form S-4).
4.5 Indenture dated as of November 19, 1998 among Citadel
Broadcasting Company, Citadel License, Inc. and The Bank of
New York, as Trustee, with the form of 9 1/4% Senior
Subordinated Notes due 2008 included therein (incorporated
by reference to Exhibit 4.1 to Citadel Communications
Corporation's Current Report on Form 8-K filed November 30,
1998).
4.6 Form of Senior Indenture.
4.7 Form of Senior Debt Security (included in Form of Senior
Indenture filed as Exhibit 4.6).
4.8 Form of Senior Subordinated Indenture.
4.9 Form of Senior Subordinated Debt Security (included in Form
of Senior Subordinated Indenture filed as Exhibit 4.8).
4.10 Form of Junior Subordinated Indenture for the junior
subordinated debt securities of Citadel Communications
Corporation and Citadel Broadcasting Company.
4.11 Form of Junior Subordinated Debt Security (included in Form
of Junior Subordinated Indenture filed as Exhibit 4.10).
4.12 Form of Depositary Agreement.
4.13 Form of Depositary Receipt (included in Form of Depositary
Agreement filed as Exhibit 4.12).
4.14 Form of Warrant Agreement.
4.15 Form of Standard Stock Warrant Agreement Provisions.
4.16 Certificate of Trust of CCC Capital Trust I.
4.17 Certificate of Trust of CCC Capital Trust II.
4.18 Declaration of CCC Capital Trust I.
4.19 Declaration of CCC Capital Trust II.
4.20 Form of Amended and Restated Declaration of Trust for each
of CCC Capital Trust I and CCC Capital Trust II.
4.21 Form of Stock Purchase Contract.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT(1)
- ------- -------------------------
<S> <C>
4.22 Form of Preferred Security (included in the Form of Amended
and Restated Declaration of Trust for each of CCC Capital
Trust I and CCC Capital Trust II filed as Exhibit 4.20).
4.23 Form of Expense Agreement (included in the Form of Amended
and Restated Declaration of Trust for each of CCC Capital
Trust I and CCC Capital Trust II filed as Exhibit 4.20).
4.24 Form of Guarantee Agreement relating to Citadel
Communications' guarantee of the preferred securities of CCC
Capital Trust I and CCC Capital Trust II.
5.1 Opinion of Eckert Seamans Cherin & Mellott, LLC, including
consent.
5.2 Opinion of Richards, Layton & Finger, P.A., including
consent relating to CCC Capital Trust I.
5.3 Opinion of Richards, Layton & Finger, P.A., including
consent, relating to CCC Capital Trust II.
5.4 Opinion of Lionel, Sawyer & Collins.
12.1 Computation of Ratio of Earnings to Fixed Charges of Citadel
Communications Corporation and Subsidiaries.
12.2 Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends of Citadel Communications
Corporation and Subsidiaries.
12.3 Computation of Ratio of Earnings to Fixed Charges of Citadel
Broadcasting Company.
23.1 Consent of Eckert Seamans Cherin & Mellott, LLC (included in
its opinion filed as Exhibit 5.1).
23.2 Consent of Richards, Layton & Finger, P.A. (included in its
opinions filed as Exhibits 5.2 and 5.3).
23.3 Consent of KPMG LLP.
23.4 Consent of KPMG LLP.
23.5 Consent of Deloitte & Touche LLP.
23.6 Consent of KPMG LLP.
23.7 Consent of Faulk & Winkler LLC.
23.8 Consent of KPMG LLP.
23.9 Consent of KPMG LLP.
23.10 Consent of Andrews Hooper & Pavlik P.L.C.
23.11 Consent of Cole & Reed, P.C.
24 Power of Attorney (included on signature page).
25.1 T-1 Statement of Eligibility of The Bank of New York, as
trustee under the Senior Indenture.
25.2 T-1 Statement of Eligibility of The Bank of New York, as
trustee under the Senior Subordinated Indenture.
25.3 T-1 Statement of Eligibility of The Bank of New York, as
trustee under the Citadel Communications Junior Subordinated
Indenture.
25.4 T-1 Statement of Eligibility of The Bank of New York, as
trustee under the Citadel Broadcasting Junior Subordinated
Indenture.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT(1)
- ------- -------------------------
<S> <C>
25.5 T-1 Statement of Eligibility of The Bank of New York, as
property trustee under the Declaration of Trust of CCC
Capital Trust I.
25.6 T-1 Statement of Eligibility of The Bank of New York, as
property trustee under the Declaration of Trust of CCC
Capital Trust II.
25.7 T-1 Statement of Eligibility of The Bank of New York, as
guarantee trustee under the Preferred Securities Guarantee
of CCC Capital Trust I.
25.8 T-1 Statement of Eligibility of The Bank of New York, as
guarantee trustee under the Preferred Securities Guarantee
of CCC Capital Trust II.
</TABLE>
- ---------------
(1) In the case of incorporation by reference to documents filed by the
Registrant under the Securities Exchange Act of 1934, as amended, Citadel
Communications' file number under such Act is 000-24515 and Citadel
Broadcasting's file number under such Act is 333-36771.
* To be filed as an exhibit to a Current Report on Form 8-K.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(a)(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to
this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement; provided,
however, that notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; provided, however, that the
undertakings set forth in clauses (i) and (ii) above do not
apply if the information required to be included in a
post-effective amendment by those clauses is contained in
periodic reports filed by Citadel Communications Corporation or
Citadel Broadcasting Company pursuant to Section 13 or
II-7
<PAGE> 92
15(d) of the Securities and Exchange Act of 1934 that are
incorporated by reference in this registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering;
(b) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of Citadel Communications Corporation's or
Citadel Broadcasting Company's annual report pursuant to Section 13(a) or 15(d)
of the Securities and Exchange Act of 1934 that is incorporated by reference in
this registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; and
(c) To provide to the underwriter at the closing specified in the
underwriting agreements, certificates in such denominations and registered in
such names as required by the underwriter to permit prompt delivery to each
purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions described under Item 15 above or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by a registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director, officer
or controlling person in connection with the securities being registered, a
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
The undersigned registrants hereby undertake to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-8
<PAGE> 93
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Lawrence
R. Wilson and Donna L. Heffner and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting to the said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agents, or either of them, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Citadel
Communications Corporation certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Las Vegas, in the State of Nevada, on
December 10, 1999.
CITADEL COMMUNICATIONS CORPORATION
By: /s/ LAWRENCE R. WILSON
-----------------------------------
Lawrence R. Wilson
Chairman of the Board,
Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the registrant and in the capacities indicated on December 10, 1999.
<TABLE>
<CAPTION>
SIGNATURES TITLE
---------- -----
<S> <C>
/s/ LAWRENCE R. WILSON Chairman of the Board, Chief Executive
- ------------------------------------------------ Officer and President (Principal
Lawrence R. Wilson Executive Officer)
/s/ DONNA L. HEFFNER Vice President and Chief Financial
- ------------------------------------------------ Officer (Principal Financial and
Donna L. Heffner Accounting Officer)
Director
- ------------------------------------------------
Robert F. Fuller
/s/ IKE KALANGIS Director
- ------------------------------------------------
Ike Kalangis
/s/ TED L. SNIDER, SR. Director
- ------------------------------------------------
Ted L. Snider, Sr.
/s/ JOHN E. VON SCHLEGELL Director
- ------------------------------------------------
John E. von Schlegell
</TABLE>
II-9
<PAGE> 94
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Lawrence
R. Wilson and Donna L. Heffner and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Citadel
Broadcasting Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Las Vegas, in the State of Nevada, on December
10, 1999.
CITADEL BROADCASTING COMPANY
By: /s/ LAWRENCE R. WILSON
-----------------------------------
Lawrence R. Wilson
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 10, 1999.
<TABLE>
<CAPTION>
SIGNATURES TITLE
---------- -----
<S> <C>
/s/ LAWRENCE R. WILSON Chairman of the Board and Chief Executive
- ------------------------------------------------ Officer (Principal Executive Officer)
Lawrence R. Wilson
/s/ DONNA L. HEFFNER Vice President and Chief Financial
- ------------------------------------------------ Officer (Principal Financial and
Donna L. Heffner Accounting Officer)
Director
- ------------------------------------------------
Robert F. Fuller
/s/ IKE KALANGIS Director
- ------------------------------------------------
Ike Kalangis
/s/ TED L. SNIDER, SR. Director
- ------------------------------------------------
Ted L. Snider, Sr.
/s/ JOHN E. VON SCHLEGELL Director
- ------------------------------------------------
John E. von Schlegell
</TABLE>
II-10
<PAGE> 95
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of CCC
Capital Trust I and CCC Capital Trust II certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Las Vegas, in the
State of Nevada, on December 10, 1999.
CCC CAPITAL TRUST I
a Delaware business trust
By: CITADEL COMMUNICATIONS CORPORATION,
as Depositor
By: /s/ LAWRENCE R. WILSON
----------------------------------
Lawrence R. Wilson
Chairman of the Board,
Chief Executive Officer and
President
CCC CAPITAL TRUST II
a Delaware business trust
By: CITADEL COMMUNICATIONS CORPORATION,
as Depositor
By: /s/ LAWRENCE R. WILSON
----------------------------------
Lawrence R. Wilson
Chairman of the Board,
Chief Executive Officer and
President
II-11
<PAGE> 96
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT(1)
- ------- -------------------------
<S> <C>
1.1* Form of Underwriting Agreement.
2.1 Asset Purchase Agreement dated October 27, 1999 by and
between Citadel Broadcasting Company and Broadcasting
Partners Holdings, L.P. (incorporated by reference to
Exhibit 2.1 to Citadel Communications Corporation's
Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1999).
2.2 Stock Purchase Agreement dated April 30, 1999 by and between
Robert F. Fuller and Citadel Broadcasting Company
(incorporated by reference to Exhibit 2.1 to Citadel
Broadcasting Company's Current Report on Form 8-K filed on
September 14, 1999).
2.3 Stock Purchase Agreement dated April 30, 1999 by and between
Joseph N. Jeffrey, Jr. and Citadel Broadcasting Company
(incorporated by reference to Exhibit 2.2 to Citadel
Broadcasting Company's Current Report on Form 8-K filed on
September 14, 1999).
2.4 Asset Purchase Agreement dated December 3, 1999 by and among
Liggett Broadcast, Inc., Rainbow Radio, LLC, New Tower,
Inc., LLJ Realty, LLC, Robert G. Liggett, Jr., Citadel
Communications Corporation, Citadel Broadcasting Company and
Citadel License, Inc. (incorporated by reference to Exhibit
2.4 to Citadel Communications Corporation's Current Report
on Form 8-K filed on December 10, 1999).
4.1 Amended and Restated Certificate of Incorporation of Citadel
Communications Corporation (incorporated by reference to
Exhibit 3(i) to Citadel Communications Corporation's
Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 1998).
4.2 Indenture dated as of July 1, 1997 among Citadel
Broadcasting Company, Citadel License, Inc. and The Bank of
New York, as Trustee, with the forms of 10 1/4% Senior
Subordinated Notes due 2007 and 10 1/4% Series B Senior
Subordinated Notes due 2007 included therein (incorporated
by reference to Exhibit 4.1 to Citadel Broadcasting
Company's Registration Statement No. 333-36771 on Form S-4).
4.3 Indenture dated as of July 1, 1997 among Citadel
Broadcasting Company, Citadel License, Inc. and The Bank of
New York, as Trustee, with the forms of 13 1/4% Exchange
Debentures due 2009 and 13 1/4% Series B Exchange Debentures
due 2009 included therein (incorporated by reference to
Exhibit 4.2 to Citadel Broadcasting Company's Registration
Statement No. 333-36771 on Form S-4).
4.4 Amendment to Certificate of the Designations, Voting Powers
Preferences and Relative, Participating, Optional and Other
Special Rights and Qualifications, Limitations or
Restrictions of the 13 1/4% Series A Exchangeable Preferred
Stock and the 13 1/4% Series B Exchangeable Preferred Stock
of Citadel Broadcasting Company (incorporated by reference
to Exhibit 3(i)(b) to Citadel Broadcasting Company's
Registration Statement No. 333-36771 on Form S-4).
4.5 Indenture dated as of November 19, 1998 among Citadel
Broadcasting Company, Citadel License, Inc. and The Bank of
New York, as Trustee, with the form of 9 1/4% Senior
Subordinated Notes due 2008 included therein (incorporated
by reference to Exhibit 4.1 to Citadel Communications
Corporation's Current Report on Form 8-K filed November 30,
1998).
4.6 Form of Senior Indenture.
4.7 Form of Senior Debt Security (included in Form of Senior
Indenture filed as Exhibit 4.6).
4.8 Form of Senior Subordinated Indenture.
</TABLE>
<PAGE> 97
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT(1)
- ------- -------------------------
<S> <C>
4.9 Form of Senior Subordinated Debt Security (included in Form
of Senior Subordinated Indenture filed as Exhibit 4.8).
4.10 Form of Junior Subordinated Indenture for the junior
subordinated debt securities of Citadel Communications
Corporation and Citadel Broadcasting Company.
4.11 Form of Junior Subordinated Debt Security (included in Form
of Junior Subordinated Indenture filed as Exhibit 4.10).
4.12 Form of Depositary Agreement.
4.13 Form of Depositary Receipt (included in Form of Depositary
Agreement filed as Exhibit 4.12).
4.14 Form of Warrant Agreement.
4.15 Form of Standard Stock Warrant Agreement Provisions.
4.16 Certificate of Trust of CCC Capital Trust I.
4.17 Certificate of Trust of CCC Capital Trust II.
4.18 Declaration of CCC Capital Trust I.
4.19 Declaration of CCC Capital Trust II.
4.20 Form of Amended and Restated Declaration of Trust for each
of CCC Capital Trust I and CCC Capital Trust II.
4.21 Form of Stock Purchase Contract.
4.22 Form of Preferred Security (included in the Form of Amended
and Restated Declaration of Trust for each of CCC Capital
Trust I and CCC Capital Trust II filed as Exhibit 4.20).
4.23 Form of Expense Agreement (included in the Form of Amended
and Restated Declaration of Trust for each of CCC Capital
Trust I and CCC Capital Trust II filed as Exhibit 4.20).
4.24 Form of Guarantee Agreement relating to Citadel
Communications' guarantee of the preferred securities of CCC
Capital Trust I and CCC Capital Trust II.
5.1 Opinion of Eckert Seamans Cherin & Mellott, LLC, including
consent.
5.2 Opinion of Richards, Layton & Finger, P.A., including
consent relating to CCC Capital Trust I.
5.3 Opinion of Richards, Layton & Finger, P.A., including
consent, relating to CCC Capital Trust II.
5.4 Opinion of Lionel, Sawyer & Collins.
12.1 Computation of Ratio of Earnings to Fixed Charges of Citadel
Communications Corporation and Subsidiaries.
12.2 Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends of Citadel Communications
Corporation and Subsidiaries.
12.3 Computation of Ratio of Earnings to Fixed Charges of Citadel
Broadcasting Company.
23.1 Consent of Eckert Seamans Cherin & Mellott, LLC (included in
its opinion filed as Exhibit 5.1).
23.2 Consent of Richards, Layton & Finger, P.A., (included in its
opinion filed as Exhibit 5.2 and 5.3).
23.3 Consent of KPMG LLP.
23.4 Consent of KPMG LLP.
23.5 Consent of Deloitte & Touche LLP.
</TABLE>
<PAGE> 98
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT(1)
- ------- -------------------------
<S> <C>
23.6 Consent of KPMG LLP.
23.7 Consent of Faulk & Winkler.
23.8 Consent of KPMG LLP.
23.9 Consent of KPMG LLP.
23.10 Consent of Andrews Hooper & Pavlik P.L.C.
23.11 Consent of Cole & Reed, P.C.
24 Power of Attorney (included on signature page).
25.1 T-1 Statement of Eligibility of The Bank of New York, as
trustee under the Senior Indenture.
25.2 T-1 Statement of Eligibility of The Bank of New York, as
trustee under the Senior Subordinated Indenture.
25.3 T-1 Statement of Eligibility of The Bank of New York, as
trustee under the Citadel Communications Junior Subordinated
Indenture.
25.4 T-1 Statement of Eligibility The Bank of New York, as
trustee under the Citadel Broadcasting Junior Subordinated
Indenture.
25.5 T-1 Statement of Eligibility of The Bank of New York, as
property trustee under the Declaration of Trust of CCC
Capital Trust I.
25.6 T-1 Statement of Eligibility of The Bank of New York, as
property trustee under the Declaration of Trust of CCC
Capital Trust II.
25.7 T-1 Statement of Eligibility of The Bank of New York, as
guarantee trustee under the Preferred Securities Guarantee
of CCC Capital Trust I.
25.8 T-1 Statement of Eligibility of The Bank of New York, as
guarantee trustee under the Preferred Securities Guarantee
of CCC Capital Trust II.
</TABLE>
- ---------------
(1) In the case of incorporation by reference to documents filed by the
Registrant under the Securities Exchange Act of 1934, as amended, Citadel
Communications' file number under such Act is 000-24515 and Citadel
Broadcasting's file number under such Act is 333-36771.
* To be filed as an exhibit to a Current Report on Form 8-K.
<PAGE> 1
Exhibit 4.6
================================================================================
CITADEL COMMUNICATIONS CORPORATION
Issuer,
to
THE BANK OF NEW YORK,
Trustee
------------------
Indenture
Dated as of ________________
------------------
Senior Debt Securities
================================================================================
<PAGE> 2
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF ___________________
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
Section 310(a)(1).........................................................607(a)
(a)(2).........................................................607(a)
(b).......................................................608(b), 609
Section 311(a)...............................................................612
(b)...............................................................612
Section 312(c)...............................................................701
Section 313 ................................................................702
Section 314(a)...............................................................703
(a)(4)...........................................................1009
(c)(1)............................................................102
(c)(2)............................................................102
(e)...............................................................102
Section 315(b)...............................................................601
Section 316(a)(last sentence)................................................101 ("Outstanding")
(a)(1)(A)....................................................502, 512
(a)(1)(B)........................................................ 513
(b).............................................................. 508
(c)........................................................... 104(e)
Section 317(a)(1)............................................................503
(a)(2)............................................................504
(b)..............................................................1003
Section 318(a)...............................................................108
</TABLE>
<PAGE> 3
TABLE OF CONTENTS
Page
PARTIES ................................................................... 1
RECITALS OF THE COMPANY ................................................... 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions ................................................ 1
Act .................................................................. 2
Authenticating Agent ................................................. 2
Authorized Newspaper ................................................. 2
Bankruptcy Law ....................................................... 2
Banks ................................................................ 2
Bearer Security ...................................................... 2
Board of Directors ................................................... 3
Board Resolution ..................................................... 3
Book-Entry Security .................................................. 3
Business Day ......................................................... 3
Capital Stock ........................................................ 3
Capitalized Lease Obligation ......................................... 3
Cedel ................................................................ 3
Commission ........................................................... 3
Common Depositary .................................................... 3
Company .............................................................. 3
Company Request" or "Company Order.................................... 3
Conversion Date ...................................................... 4
Conversion Event ..................................................... 4
Corporate Trust Office ............................................... 4
corporation .......................................................... 4
coupon ............................................................... 4
covenant defeasance .................................................. 4
Credit Facility ...................................................... 4
Credit Facility Agent ................................................ 4
Currency ............................................................. 4
Custodian ............................................................ 4
Debt ................................................................. 4
i
<PAGE> 4
Default .............................................................. 5
Defaulted Interest ................................................... 5
defeasance ........................................................... 5
Depository ........................................................... 5
Disqualified Stock ................................................... 5
Dollar" or "$ ........................................................ 6
Dollar Equivalent of the Currency Unit ............................... 6
Dollar Equivalent of the Foreign Currency ............................ 6
Election Date ........................................................ 6
Euro ................................................................. 6
Euroclear ............................................................ 6
Event of Default ..................................................... 6
Exchange Act ......................................................... 6
Exchange Date ........................................................ 6
Exchange Rate Agent .................................................. 6
Exchange Rate Officers' Certificate .................................. 6
Extension Notice" and "Extension Period .............................. 6
Final Maturity ....................................................... 7
Foreign Currency ..................................................... 7
generally accepted accounting principles" or "GAAP ................... 7
Global Securities .................................................... 7
Government Obligations ............................................... 7
Guarantee ............................................................ 7
Hedging Obligations .................................................. 7
Holder ............................................................... 7
incorporated provision ............................................... 8
Indebtedness ......................................................... 8
Indenture ............................................................ 8
Indexed Security ..................................................... 8
interest ............................................................. 8
Interest Payment Date ................................................ 8
Lease ................................................................ 8
Lien ................................................................. 8
Mandatory sinking fund payment ....................................... 9
Market Exchange Rate ................................................. 9
Maturity ............................................................. 9
Notice of Default .................................................... 9
Officers' Certificate ................................................ 9
Opinion of Counsel ................................................... 10
Option to Elect Repayment ............................................ 10
ii
<PAGE> 5
Optional Reset Date ................................................. 10
optional sinking fund payment ....................................... 10
Original Issue Discount Security .................................... 10
Original Stated Maturity ............................................ 10
Outstanding ......................................................... 10
Paying Agent ........................................................ 11
Person .............................................................. 11
Place of Payment .................................................... 11
Predecessor Security ................................................ 11
Redemption Date ..................................................... 12
Redemption Price .................................................... 12
Registered Security ................................................. 12
Regular Record Date ................................................. 12
Repayment Date ...................................................... 12
Repayment Price ..................................................... 12
Responsible Officer ................................................. 12
Securities .......................................................... 12
Security Register" and "Security Registrar .......................... 12
Senior Debt ......................................................... 13
Significant Subsidiary .............................................. 13
Special Record Date ................................................. 13
Stated Maturity ..................................................... 13
Subsequent Interest Period .......................................... 13
Subsidiary .......................................................... 13
Surviving Entity .................................................... 13
Trust Indenture Act" or "TIA ........................................ 14
Trustee ............................................................. 14
United States ....................................................... 14
United States person ................................................ 14
Unrestricted Subsidiary ............................................. 14
Valuation Date ...................................................... 14
Vice President ...................................................... 14
Voting Stock ........................................................ 14
Yield to Maturity ................................................... 14
SECTION 102. Compliance Certificates and Opinions ....................... 15
SECTION 103. Form of Documents Delivered to Trustee ..................... 15
SECTION 104. Acts of Holders ............................................ 16
SECTION 105. Notices, Etc., to Trustee and Company ...................... 18
SECTION 106. Notice to Holders; Waiver .................................. 18
SECTION 107. Conflict of Any Provision of Indenture with Trust
Indenture Act .............................................. 19
iii
<PAGE> 6
SECTION 108. Effect of Headings and Table of Contents ................... 19
SECTION 109. Successors and Assigns ..................................... 20
SECTION 110. Separability Clause ........................................ 20
SECTION 111. Benefits of Indenture ...................................... 20
SECTION 112. Governing Law .............................................. 20
SECTION 113. Legal Holidays ............................................. 20
SECTION 114. No Personal Liability of Directors, Officers,
Employees, Stockholders or Incorporators ................... 21
ARTICLE TWO SECURITY FORMS
SECTION 201. Forms Generally ............................................ 21
SECTION 202. Form of Trustee's Certificate of Authentication ............ 22
SECTION 203. Securities Issuable in Global Form ......................... 22
SECTION 204. Form of Legend for Book-Entry Securities ................... 23
ARTICLE THREE THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series ....................... 24
SECTION 302. Denominations .............................................. 27
SECTION 303. Execution, Authentication, Delivery and Dating ............. 27
SECTION 304. Book-Entry Securities ...................................... 30
SECTION 305. Temporary Securities ....................................... 32
SECTION 306. Registration, Registration of Transfer and Exchange ........ 34
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities ........... 38
SECTION 308. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset .................................... 39
SECTION 309. Optional Extension of Stated Maturity ...................... 42
SECTION 310. Persons Deemed Owners ...................................... 43
SECTION 311. Cancellation ............................................... 43
SECTION 312. Computation of Interest .................................... 44
SECTION 313. Currency and Manner of Payments in Respect of
Securities ................................................. 44
SECTION 314. Appointment and Resignation of Successor Exchange
Rate Agent ................................................. 46
SECTION 315. CUSIP Numbers .............................................. 47
ARTICLE FOUR SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture .................... 48
SECTION 402. Application of Trust Money ................................. 49
ARTICLE FIVE REMEDIES
SECTION 501. Events of Default .......................................... 50
SECTION 502. Acceleration of Maturity; Rescission and Annulment ......... 51
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee ................................................. 52
iv
<PAGE> 7
SECTION 504. Trustee May File Proofs of Claim ........................... 53
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities ................................................. 54
SECTION 506. Application of Money Collected ............................. 54
SECTION 507. Limitation on Suits ........................................ 55
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest ....................................... 55
SECTION 509. Restoration of Rights and Remedies ......................... 56
SECTION 510. Rights and Remedies Cumulative ............................. 56
SECTION 511. Delay or Omission Not Waiver ............................... 56
SECTION 512. Control by Holders ......................................... 56
SECTION 513. Waiver of Past Defaults .................................... 57
SECTION 514. Undertaking for Costs ...................................... 57
SECTION 515. Waiver of Stay or Extension Laws ........................... 58
ARTICLE SIX THE TRUSTEE
SECTION 601. Notice of Defaults ......................................... 58
SECTION 602. Certain Rights of Trustee .................................. 58
SECTION 603. Trustee Not Responsible for Recitals or Issuance
of Securities .............................................. 60
SECTION 604. May Hold Securities ........................................ 60
SECTION 605. Money Held in Trust ........................................ 60
SECTION 606. Compensation and Reimbursement ............................. 60
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests .................................................. 61
SECTION 608. Resignation and Removal; Appointment of Successor .......... 62
SECTION 609. Acceptance of Appointment by Successor ..................... 63
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business ................................................... 64
SECTION 611. Appointment of Authenticating Agent ........................ 65
SECTION 612. Preferential Collection of Claims Against Company .......... 67
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY
TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders ............... 67
SECTION 702. Reports by Trustee ......................................... 67
SECTION 703. Reports by Company ......................................... 68
ARTICLE EIGHT MERGER, CONSOLIDATION OR
SALE OF ASSETS
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms ....... 68
SECTION 802. Successor Substituted ...................................... 69
ARTICLE NINE SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders ......... 69
SECTION 902. Supplemental Indentures with Consent of Holders ............ 71
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SECTION 903. Execution of Supplemental Indentures ....................... 72
SECTION 904. Effect of Supplemental Indentures .......................... 73
SECTION 905. Conformity with Trust Indenture Act ........................ 73
SECTION 906. Reference in Securities to Supplemental Indentures ......... 73
SECTION 907. Notice of Supplemental Indentures .......................... 73
ARTICLE TEN COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest ....... 73
SECTION 1002. Maintenance of Office or Agency ........................... 74
SECTION 1003. Money for Securities Payments to Be Held in Trust ......... 75
SECTION 1004. Corporate Existence ....................................... 77
SECTION 1005. Payment of Taxes and Other Claims ......................... 77
SECTION 1006. Maintenance of Properties ................................. 78
SECTION 1007. Insurance ................................................. 78
SECTION 1008. Other Covenants ........................................... 78
SECTION 1009. Statement as to Compliance ................................ 78
ARTICLE ELEVEN REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article .................................. 79
SECTION 1102. Election to Redeem; Notice to Trustee ..................... 79
SECTION 1103. Selection by Trustee of Securities to Be Redeemed ......... 79
SECTION 1104. Notice of Redemption ...................................... 80
SECTION 1105. Deposit of Redemption Price ............................... 81
SECTION 1106. Securities Payable on Redemption Date ..................... 81
SECTION 1107. Securities Redeemed in Part ............................... 82
ARTICLE TWELVE SINKING FUNDS
SECTION 1201. Applicability of Article .................................. 83
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities ..... 83
SECTION 1203. Redemption of Securities for Sinking Fund ................. 83
ARTICLE THIRTEEN REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article .................................. 85
SECTION 1302. Repayment of Securities ................................... 85
SECTION 1303. Exercise of Option ........................................ 85
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable ............................................... 86
SECTION 1305. Securities Repaid in Part ................................. 87
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance ................................................ 87
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SECTION 1402. Defeasance and Discharge .................................. 87
SECTION 1403. Covenant Defeasance ....................................... 88
SECTION 1404. Conditions to Defeasance or Covenant Defeasance ........... 89
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions ............. 91
SECTION 1406. Reinstatement ............................................. 92
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called ................. 92
SECTION 1502. Call, Notice and Place of Meetings ........................ 93
SECTION 1503. Persons Entitled to Vote at Meetings ...................... 93
SECTION 1504. Quorum; Action ............................................ 93
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings ................................... 95
SECTION 1506. Counting Votes and Recording Action of Meetings ........... 96
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EXHIBIT A -- List of Restricted Subsidiaries
EXHIBIT B-1 -- Form of Certificate to Be Given by Person Entitled to Receive
Bearer Security or to Obtain Interest Payable Prior to the
Exchange Date
EXHIBIT B-2 -- Form of Certificate to Be Given by Euroclear and Cedel S.A. in
Connection with the Exchange of a Portion of a Temporary
Global Security or to Obtain Interest Payable Prior to the
Exchange Date
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INDENTURE, dated as of ___________________________, between CITADEL
COMMUNICATIONS CORPORATION, a corporation duly organized and existing under the
laws of the State of Nevada (the "Company"), having its principal office at City
Center West, Suite 400, 7201 West Lake Mead Boulevard, Las Vegas, Nevada 89128,
and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior debt
securities (herein called the "Securities"), to be issued in one or more series
as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and words in the singular include words in the plural
as well as the singular and words in the plural include the singular as
well as the plural;
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(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and except as otherwise herein expressly provided; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Authenticating Agent" means any Person appointed by the Trustee to act
on behalf of the Trustee pursuant to Section 611 to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code of 1978,
as amended, or any similar United States federal or state or foreign law
relating to bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or change
in any such law.
"Banks" means the banks and other financial institutions that from time
to time are lenders under the Credit Facility.
"Bearer Security" means any Security except a Registered Security.
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"Board of Directors" means, with respect to any Person, either the
board of directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the secretary or an assistant secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Security" has the meaning specified in Section 304.
"Business Day" means, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participations rights in or other equivalents
(however designated) of such Person's equity (however designated) whether now
outstanding or issued after the date of this Indenture.
"Capitalized Lease Obligation" means, with respect to any Person, an
obligation incurred or assumed under or in connection with any capital lease of
real or personal property that, in accordance with GAAP, has been recorded as a
capitalized lease on the balance sheet of such Person.
"Cedel" means Cedel Bank, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 305.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (i) by its chairman, a vice-chairman, its
president or any vice
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president and (ii) by its treasurer, an assistant treasurer, its secretary or an
assistant secretary and delivered to the Trustee; provided, however, that such
written request or order may be signed by any two of the officers or directors
listed in clause (i) above in lieu of being signed by one of such officers or
directors listed in such clause (i) and one of the officers listed in clause
(ii) above.
"Conversion Date " has the meaning specified in Section 313(d).
"Conversion Event " means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Currency and by
a central bank or other public institution of or within the international
banking community for the settlement of transactions other than as a result of
the European Economic and Monetary Union and the adoption or phase in of the
Euro pursuant thereto, or (ii) any currency unit (or composite currency)
including the Euro for the purposes for which it was established.
"Corporate Trust Office " means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office on the date of execution of this Indenture is located
at 101 Barclay Street, 21st Floor, New York, New York 10286.
"corporation" includes corporations, associations, partnerships,
limited liability companies, companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"covenant defeasance" has the meaning specified in Section 1403 hereof.
"Credit Facility" means any loan agreement that will be entered into by
the Company and the lender parties thereto and as such agreement may be amended,
restated, supplemented, replaced or refinanced or otherwise modified from time
to time.
"Credit Facility Agent" means the then acting Agent as defined in and
under the Credit Facility or any successor thereto.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the Euro, issued
by the government of one or more countries or by any recognized confederation or
association of such governments.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar officer under any Bankruptcy Law.
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"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (a) every obligation of such Person for money borrowed, (b) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, (c) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person, (d) every obligation of such Person issued or assumed as
the deferred purchase price of property or services, (e) every Capitalized Lease
Obligation of such Person, (f) all Disqualified Stock of such Person valued at
its maximum fixed repurchase price, plus accumulated and unpaid dividends, (g)
all Hedging Obligations of such Person, and (h) every obligation of the types
referred to in clauses (a) through (g) of another Person and all dividends of
another Person (i) the payment of which, in either case, such Person has
guaranteed or (ii) which is secured by any Lien on any property or asset of such
Person, the amount of such Debt being deemed to be the lesser of the actual
amount of the guarantee or the value of such property or asset subject to such
Lien, as the case may be, and the amount of the Debt so guaranteed or secured,
as the case may be. For purposes of this definition, the "maximum fixed
repurchase price" of any Disqualified Stock that does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified Stock were repurchased on any date on
which Debt is required to be determined pursuant to this Indenture, and if such
price is based upon, or measured by, the fair market value of such Disqualified
Stock, such fair market value shall be determined reasonably and in good faith
by the board of directors of the issuer of such Disqualified Stock.
Notwithstanding the foregoing, trade accounts payable and accrued liabilities
arising in the ordinary course of business and any liability for federal, state
or local taxes or other taxes owed by such Person shall not be considered Debt
for purposes of this definition. The amount outstanding at any time of any Debt
issued with original issue discount is the aggregate principal amount at
maturity of such Debt, less the remaining unamortized portion of the original
issue discount of such Debt at such time, as determined in accordance with GAAP.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 308 hereof.
"defeasance" has the meaning specified in Section 1402 hereof.
"Depository" has the meaning specified in Section 304.
"Disqualified Stock" means, with respect to any series of Securities,
any Capital Stock of the Company or any Restricted Subsidiary which, by its
terms (or by the terms of any
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<PAGE> 16
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the maturity date of such
Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 313(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 313(f).
"Election Date" has the meaning specified in Section 313(g).
"Euro" means the single currency for those member states of the
European Union that satisfy certain criteria set forth in the Treaty of Rome, as
amended by the Treaty on European Union.
"Euroclear " means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Date" has the meaning specified in Section 305.
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 301, a New York Clearing House bank, designated pursuant to Section
301 or Section 313.
"Exchange Rate Officers' Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a
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certificate) by the Chairman, Chief Executive Officer, a Vice Chairman, the
President, a Vice President or the Treasurer of the Company.
"Extension Notice" and "Extension Period" shall have the meanings
specified in Section 309.
"Final Maturity" has the meaning specified in Section 309.
"Foreign Currency" means any Currency other than Currency of the
United States.
"generally accepted accounting principles" or "GAAP " means generally
accepted accounting principles in the United States, consistently applied, which
were in effect as of November 30, 1999.
"Global Securities" means one or more Securities evidencing all or
part of the Securities to be issued as Book-Entry Securities, issued to the
Depository in accordance with Section 301 and bearing the legend prescribed in
Section 204.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, securities which
are (i) direct obligations of the government of the United States of America or
(ii) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the government of United States of America that are not
callable or redeemable at the option of the issuer thereof and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest or principal of the Government Obligation evidenced by such depository
receipt.
"guarantee" means, as applied to any obligation, (a) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limitation, the payment of
amounts drawn down under letters of credit.
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"Hedging Obligations" means the obligations of any Person under (a)
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements and (b) other agreements or arrangements designed to protect
such Person against fluctuations in interest rates or the value of foreign
currencies.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"incorporated provision" has the meaning specified in Section 107.
"Indebtedness" with respect to any Person, means the Debt of such
Person; provided that, for purposes of the definition of "Indebtedness"
(including the term "Debt" to the extent incorporated in such definition) and
for purposes of the definition of Event of Default, the term "guarantee" shall
not be interpreted to extend to a guarantee under which recourse is limited to
the Capital Stock of an entity that is not a Restricted Subsidiary.
"Indenture" means this instrument as originally executed (including
all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, and shall include the terms
of particular series of Securities established as contemplated by Section 301;
provided, however, that, if at any time more than one Person is acting as
Trustee under this instrument, "Indenture" shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
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"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Lease" means any capital lease, operating lease, equipment lease,
real property lease or other lease.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, preference, priority or other encumbrance upon or with respect
to any property of any kind, real or personal, movable or immovable, now owned
or hereafter acquired. A Person shall be deemed to own subject to a Lien any
property that such Person has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement.
"mandatory sinking fund payment" shall have the meaning specified in
Section 1201.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or another principal market for the Currency in question,
or such other quotations as the Exchange Rate Agent shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent, if there is more than one
market for dealing in any Currency by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such Currency shall be that upon
which a non-resident issuer of securities designated in such Currency would
purchase such Currency in order to make payments in respect of such securities.
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"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided whether at the Stated Maturity, by declaration of acceleration,
notice of redemption, notice of option to elect repayment or otherwise.
"Notice of Default" shall have the meaning specified in Section 601.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two officers of the Company, one of whom must be principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company that meets the requirements set forth in
Section 102.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee. Each such
opinion shall include the statements provided for in TIA Section 314(e) to the
extent applicable.
"Option to Elect Repayment" shall have the meaning specified in
Section 1303.
"Optional Reset Date" shall have the meaning specified in Section 308.
"optional sinking fund payment" shall have the meaning specified in
Section 1201.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Original Stated Maturity" shall have the meaning specified in Section
309.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment, purchase,
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its
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own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities paid pursuant to Section 307 or Securities in exchange
for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that, in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder or are present at a meeting of Holders
for quorum purposes, and for the purpose of making the calculations required by
TIA Section 313, (i) the principal amount of an Original Issue Discount Security
that may be counted in making such determination or calculation and that shall
be deemed to be Outstanding for such purpose shall be equal to the amount of
principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration
of the maturity thereof pursuant to Section 502, (ii) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 301,
and (iii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium, if
any) or interest, if any, on any Securities on behalf of the Company.
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium,
if any) and interest, if any, on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 307 in exchange for a mutilated
Security or in lieu of a destroyed, lost or stolen Security or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen Security
or the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment pursuant
to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
any vice-president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, the controller and any assistant controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above-designated officers or assigned by the
Trustee to administer corporate trust matters at its Corporate Trust Office and
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also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means [ ]
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar " have the respective
meanings specified in Section 306.
"Senior Debt" means the principal of and premium, if any, and interest
on (including interest accruing after the filing of a petition initiating any
proceeding pursuant to any Bankruptcy Law, whether or not allowed) and other
amounts due on or in connection with any Debt of the Company (other than the
Securities or Pasi Passu Debt), whether outstanding on the date of execution of
this Indenture or thereafter incurred, unless, in the case of any particular
Debt, the instrument creating or evidencing the same or pursuant to which the
same is outstanding expressly provides that such Debt shall be subordinate in
right of payment to any Debt or other general unsecured obligations of the
Company. Without limiting the generality of the forgoing, "Senior Debt" includes
the principal of and premium, if any, fees and interest (including interest
accruing after the occurrence of an event of default or after the filing of a
petition initiating any proceeding pursuant to any Bankruptcy Law, whether or
not allowed) on all obligations of every nature of the Company from time to time
owed to the Banks under the Credit Facility. Notwithstanding the foregoing,
"Senior Debt" shall not include (a) Debt that is Disqualified Stock, (b) Debt of
the Company to a Restricted Subsidiary or any other Affiliate of the Company or
any of such Affiliate's Subsidiaries, (c) that portion of any Debt that, at the
time of incurrence, is incurred by the Company in violation of this Indenture.
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"Special Record Date" means a date fixed by the Trustee for the payment
of any Defaulted Interest pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 309.
"Subsequent Interest Period" shall have the meaning specified in
Section 308.
"Subsidiary" means any Person a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by the
Company and/or one or more other Subsidiaries of the Company.
"Surviving Entity" shall have the meaning set forth in Section 801
hereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
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"Valuation Date" has the meaning specified in Section 313(c).
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such covenant or condition has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article Fifteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to TIA Section 315) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer
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Outstanding. The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may also be proved in any other
manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of such Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), any such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Securities then Outstanding shall be computed as of such record date, provided
that no such request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security or the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Agents of the Banks or the Company
shall be sufficient for every purpose hereunder if made, given, furnished
or delivered, in writing, to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration; or
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(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or delivered, in writing, or mailed, first-class
postage prepaid, or delivered by recognized overnight courier, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this Indenture, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided. Any notice mailed to a
Holder in the aforesaid manner shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in The City of New York and in such other city or cities as
may be specified in such Securities on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of the first such publication.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of
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Bearer Securities as shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published, shall
affect the sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered Securities
given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by TIA Sections 310 to 318,
inclusive, or conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by operation of such TIA
Sections, such imposed duties or incorporated provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
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SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar, any holders of
Senior Indebtedness and their successors hereunder and the Holders of Securities
or coupons, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THIS INDENTURE
SHALL BE SUBJECT TO, AND GOVERNED BY, THE PROVISIONS OF THE TRUST INDENTURE ACT
OF 1939, AS AMENDED,THAT ARE REQUIRED TO BE PART OF AND TO GOVERN INDENTURES
QUALIFIED THEREUNDER.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or
interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
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SECTION 114. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES,
STOCKHOLDERS OR INCORPORATORS.
No director, officer, employee, incorporator or stockholders, as such,
of the Company shall have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creations. Each Holder by accepting any of
the Securities waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of the Securities of any series.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. If the
forms of Securities or coupons of any series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities or coupons. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Security.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the
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officers of the Company executing such Securities, as evidenced by their
execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 612, the Trustee's certificate of authentication
shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
--------------------------------
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or Section 305. Subject
to the provisions of Section 303 and, if applicable, Section 305, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or Section
305 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
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The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 308, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 310 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent Global Security (i) in the
case of a permanent Global Security in registered form, the Holder of such
permanent Global Security in registered form, or (ii) in the case of a permanent
Global Security in bearer form, Euroclear or Cedel.
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK 10041)
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT AND SUCH
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CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE
NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title and ranking of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities):
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 305, 306, 307, 906, 1107 or 1305):
(3) the Person to whom any interest on the Securities of any series is
payable if other than the Person in whose name the Securities of such
series are registered on the Regular Record Date;
(4) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities of the
series is payable;
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(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on any Registered Security on
any Interest Payment Date, or the method by which such date or dates shall
be determined, and the basis upon which interest shall be calculated if
other than on the basis of a 360-day year of twelve 30-day months;
(6) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall be
payable, where any Registered Securities of the series may be surrendered
for registration of transfer, where Securities of the series may be
surrendered for exchange, where Securities of the series that are
convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and, if different than the location specified in Section 106,
the place or places where notices or demands to or upon the Company in
respect of the Securities of the series and this Indenture may be served;
(7) the period or periods within which, the events upon the occurrence
of which, the price or prices at which, and other terms and conditions upon
which Securities of the series may be redeemed or purchased, in whole or in
part, at the option of the Company, if the Company is to have that option;
(8) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which, the price or prices at which, and other terms and conditions
upon which Securities of the series shall be redeemed, repaid or purchased,
in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denomination or denominations in which any Securities of the
series shall be issuable;
(10) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on one or more Currencies,
commodities, equity indices or other indices), and the manner in which such
amounts shall be determined;
(11) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder
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thereof, in a Currency other than Dollar, the period or periods within
which (including the Election Date), and the terms and conditions upon
which, such election may be made, and the time and manner of determining
the exchange rate between the Currency in which such Securities are
denominated or stated to be payable and the Currency in which such
Securities are to be so payable, in each case in accordance with, in
addition to or in lieu of any of the provisions of Section 313;
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(13) if the principal amount of the Securities of the series payable
at the Maturity thereof is not determinable as of any date prior to such
Maturity, the amount which shall be deemed to be the Outstanding principal
amount of the Securities of such series;
(14) any change in the applicability of Sections 1402 and/or 1403 to
the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen that
shall be applicable to the Securities of the series;
(15) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer
Securities, whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without coupons and, if
so, whether beneficial owners of interests in any such permanent Global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 306, whether Registered Securities of the series may be
exchanged for Bearer Securities of the series (if permitted by applicable
laws and regulations), whether Bearer Securities of the series may be
exchanged for Registered Securities of such series, and the circumstances
under which and the place or places where any such exchanges may be made
and if Securities of the series are to be issuable in global form, the
identity of any initial depository therefor;
(16) any change in the applicability of the Events of Default with
respect to Securities of the series, whether or not such Events of Default
are consistent with the Events of Default set forth herein;
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(17) any deletions from, modifications of or additions to the
covenants of the Company with respect to Securities of the series, whether
or not such covenants are consistent with the covenants set forth herein;
(18) if the Securities of the series are to be secured;
(19) the specific terms of the depository arrangement with respect to
any portion of a series of Securities to be represented by a Global
Security pursuant to Section 304; and
(20) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms shall not be inconsistent with the requirements of the Trust
Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the same time,
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to Securities
of any series denominated in Dollars, in the absence of any such provisions, the
Securities of such series, other than Securities issued in global form (which
may be of any denomination), shall be issuable in denominations of $1,000 and
any integral multiple thereof.
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SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by any one of the following: its Chairman, Chief
Executive Officer, its President or one of its Vice Presidents, and attested by
one of its Vice Presidents or its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities or coupons may be
manual or facsimile.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and make available for delivery such Securities;
provided, however, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States: and provided further that, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in Exhibit B-1 to this Indenture, dated no earlier than 15 days prior
to the earlier of the date on which such Bearer Security is delivered and the
date on which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 305, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary Global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section 307,
the Trustee shall not authenticate and make available for delivery any Bearer
Security unless all appurtenant coupons for interest then matured have been
detached and canceled. If not all the Securities of any series are to be issued
at one time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and determining
terms of particular Securities of such series such as interest rate, stated
maturity, date of issuance and date from which interest shall accrue.
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In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture:
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in accordance
with this Indenture, authenticated and made available for delivery by the
Trustee in accordance with this Indenture and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel,
will constitute the legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights, to general equitable principles and to such other qualifications as
such counsel shall conclude do not materially affect the rights of Holders
of such Securities and any coupons;
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities, any coupons and of the
supplemental indentures, if any, have been complied with and that
authentication and delivery of such Securities and any coupons and the
execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such Securities
and any coupons, and has duly taken all necessary corporate action with
respect to such issuance; and
(f) that the issuance of such Securities and any coupons will not
contravene the articles of incorporation or by-laws of the Company or
result in any violation of any of the terms or provisions of any law or
regulation or of any indenture, mortgage or other agreement known to such
Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be
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necessary to deliver the Officers' Certificate otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel otherwise required
pursuant to the preceding two paragraphs prior to or at the time of issuance of
each Security, but such documents shall be delivered prior to or at the time of
issuance of the first Security of such series.
The Trustee shall not be required to authenticate and make available
for delivery any such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 311 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. BOOK-ENTRY SECURITIES.
(a) The Securities of a series may be issuable in whole or in part in
the form of one or more Global Securities ("Book-Entry Securities") deposited
with, or on behalf of, a Depository (the "Depository"). In the case of
Book-Entry Securities, one or more Global Securities will be issued in a
denomination or aggregate denomination equal to the portion of the aggregate
principal amount of Outstanding Securities of the series to be represented by
such Global Security or Global Securities. Unless otherwise provided as
contemplated by Section 301, the additional provisions set forth in this Section
304 shall apply to Book-Entry Securities.
(b) Book-Entry Securities will be deposited with, or on behalf of, the
Depository, and registered in the name of the Depository's nominee, for credit
to the respective accounts of institutions that have accounts with the
Depository or its nominee ("Participants");
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provided that Book-Entry Securities purchased by persons outside the United
States may be credited to or through accounts maintained at the Depository by or
on behalf of Euroclear or Cedel. The accounts to be credited will be designated
by the underwriters or agents of such Securities or, if such Securities are
offered and sold directly by the Company, by the Company. Ownership of
beneficial interests in Book-Entry Securities will be limited to Persons that
may hold interests through Participants and will be shown on records maintained
by the Depository or its nominee for such Book-Entry Security.
Participants shall have no rights under this Indenture or any indenture
supplemental hereto with respect to any Book-Entry Security held on their behalf
by the Depository, or the Trustee as its custodian, or under the Book-Entry
Security, and the Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Book-Entry
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing in
this Indenture or any such indenture supplemental shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(c) Transfers of Book-Entry Securities shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in Book-Entry Securities may be
transferred or exchanged for Bearer Securities only if (i) the Depository
advises the Trustee in writing that it is no longer willing or able to discharge
properly its responsibilities with respect to such Book-Entry Security and it is
unable to locate a qualified successor, (ii) the Company, at its option, elects
to terminate the book-entry system by executing and delivering to the Trustee
and the Depository a notice to such effect, or (iii) there shall have occurred
and be continuing a Default or Event of Default with respect to the Securities
represented by such Book-Entry Security.
(d) In connection with any transfer or exchange of a portion of the
beneficial interest in any Book-Entry Security to beneficial owners pursuant to
paragraph (c) above, the Security Registrar shall (if one or more Bearer
Securities are to be issued) reflect on its books and records the date and a
decrease in the principal amount of the Book-Entry Security in an amount equal
to the principal amount of the beneficial interest in the Book-Entry Security to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Bearer Securities of like tenor and
principal amount of authorized denominations.
(e) In connection with the transfer of Book-Entry Securities as an
entirety to beneficial owners pursuant to paragraph (c) above, the Book-Entry
Securities shall be deemed to be surrendered to the Trustee for cancellation and
the Company shall execute, and the Trustee
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shall authenticate and deliver, to each beneficial owner identified by the
Depository in exchange for its beneficial interest in the Book-Entry Securities,
an equal aggregate principal amount of Bearer Securities of like tenor of
authorized denominations.
(f) The Holder of any Book-Entry Security may grant proxies and
otherwise authorize any person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under the applicable Indenture or the Securities.
SECTION 305. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are typewritten, printed, lithographed,
engraved or otherwise produced by any combination of these methods, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form that are not
issued as Book-Entry Securities as provided in Section 304 (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Until
so exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
If temporary Securities of any series are issued in global form (other
than Securities issued as Book-Entry Securities as provided in Section 304), any
such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a
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depositary or common depositary (the "Common Depositary"), for the benefit of
Euroclear and Cedel, for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security that is not issued as a Book-Entry Security as provided in Section 304
(the "Exchange Date"), the Company shall deliver to the Trustee definitive
Securities, in aggregate principal amount equal to the principal amount of such
temporary Global Security, executed by the Company. On or after the Exchange
Date such temporary Global Security shall be surrendered by the Common
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary Global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Common Depositary, such temporary Global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary Global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by Cedel as to the portion of such temporary Global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit B-2 to this Indenture (or in such other form as may be established
pursuant to Section 301); and provided further that Bearer Securities shall be
delivered in exchange for a portion of a temporary Global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary Global Security that is
not issued as a Book-Entry Security as provided in Section 304, the interest of
a beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
Cedel, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or Cedel, as the case may be, a certificate in the form set forth
in Exhibit B-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and Cedel, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge to the
beneficial owners of such
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temporary Global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of Euroclear or Cedel. Bearer Securities in bearer form to
be delivered in exchange for any portion of a temporary Global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series, including temporary Global Securities (whether or not
issued as Book-Entry Securities as provided in Section 304), shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
301, interest payable on a temporary Global Security (other than Securities
issued as Book-Entry Securities as provided in Section 304) on an Interest
Payment Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euroclear and Cedel on such Interest Payment
Date upon delivery by Euroclear and Cedel to the Trustee of a certificate or
certificates in the form set forth in Exhibit B-2 to this Indenture (or in such
other form as may be established pursuant to Section 301), for credit without
further interest thereon on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or Cedel, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth in Exhibit B-1 to this Indenture (or in such
other form as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section and of the third paragraph of Section 303 of this
Indenture and the interests of the Persons who are the beneficial owners of the
temporary Global Security with respect to which such certification was made will
be exchanged for definitive Securities of the same series and of like tenor on
the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary Global Security will be made unless and until such interest in such
temporary Global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and Cedel and not
paid as herein provided shall be returned to the Trustee immediately prior to
the expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 1003.
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SECTION 306. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register for each series of Securities (the registers maintained in
such office of the Trustee and in any other office or agency designated pursuant
to Section 1002 being herein sometimes referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Trustee is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities as herein provided.
Except as otherwise described in this Article Three, upon surrender for
registration of transfer of any Registered Security of any series at the office
or agency in a Place of Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series, in each case, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Registered Securities to be exchanged at such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified with respect to any series of Securities as
contemplated by Section 301 or Section 304, Bearer Securities may not be issued
in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face amount
of such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter
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the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the same
series and like tenor after the close of business at such office or agency on
(i) any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive, and the Trustee
shall cancel the Bearer Securities so transferred. In the case of an exchange of
Bearer Securities for an interest in a Book-Entry Security, the Security
Registrar shall reflect on the Register the date and an increase in the
principal amount of the Bearer Securities to be transferred, and the Trustee
shall cancel the Bearer Securities so transferred.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent Global Security (other than
Securities issued as Book-Entry Securities as provided in Section 304) shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent Global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent Global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent Global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such permanent
Global Security shall be surrendered by the Common Depositary or such other
depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in
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whole or from time to time in part, for definitive Securities without charge,
and the Trustee shall authenticate and deliver, in exchange for each portion of
such permanent Global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such permanent Global Security to be exchanged which,
unless the Securities of the series are not issuable both as Bearer Securities
and as Registered Securities, as specified as contemplated by Section 301, shall
be in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange is
requested may be among those selected for redemption; and provided further that
no Bearer Security delivered in exchange for a portion of a permanent Global
Security shall be mailed or otherwise delivered to any location in the United
States. If a Registered Security is issued in exchange for any portion of a
permanent Global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent Global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to pay all documentary, stamp, similar issue or transfer taxes or other
governmental charges that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
305, 906, 1107 or 1305 not involving any transfer.
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The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of Securities
of that series under Section 1103 or 1203 and ending at the close of business on
(A) if Securities of the series are issuable only as Registered Securities, the
day of the mailing of the relevant notice of redemption and (B) if Securities of
the series are issuable as Bearer Securities, the day of the first publication
of the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part, or (iii)
to exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 307. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them and any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered Security, or, in case
any such mutilated Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security, pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security for which a destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such destroyed,
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lost or stolen Security or to the Security to which such destroyed, lost or
stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen
Security or in exchange for a Security to which a mutilated, destroyed, lost or
stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security and its coupons, if any, or the mutilated, destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section 307 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
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SECTION 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED; OPTIONAL
INTEREST RESET.
(a) Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest, if any, on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002: provided, however,
that each installment of interest, if any, on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 310,
to the address of such Person as it appears on the Security Register or (ii)
transfer to an account located in the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, by transfer to an account located outside the
United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301, every
permanent Global Security (other than Book-Entry Securities issued as provided
in Section 304) will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and Cedel with respect to that
portion of such permanent Global Security held for its account by the Common
Depositary, for the purpose of permitting each of Euroclear and Cedel to credit
the interest, if any, received by it in respect of such permanent Global
Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in
Subsection (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
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proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 313(b), 313(d) and 313(e)) equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Subsection provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given in the manner provided in
Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted Interest shall be
paid to the Persons in whose name the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Subsection (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 308(b) may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the Company on the
date or dates specified on the face of such Security (each an "Optional Reset
Date"). The Company may exercise such option with respect to such Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to an Optional Reset Date for such Note, which such notice shall contain
such information as may be required by the Trustee to transmit the Reset Notice
as hereinafter defined). Not later than 40 days prior to each Optional Reset
Date, the Trustee shall transmit, in the manner provided for in Section 106, to
the Holder of any such Security a notice (the "Reset Notice") indicating whether
the Company has elected to reset the interest rate (or the spread or spread
multiplier used to
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calculate such interest rate, if applicable), and if so (i) such new interest
rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset
Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity Date of such Security (each such period a
"Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect repayment
by the Company of the principal of such Security on each Optional Reset Date at
a price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such Optional
Reset Date and except that, if the Holder has tendered any Security for
repayment pursuant to the Reset Notice, the Holder may, by written notice to the
Trustee, revoke such tender or repayment until the close of business on the
tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 306,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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SECTION 309. OPTIONAL EXTENSION OF STATED MATURITY.
The provisions of this Section 309 may be made applicable to any series
of Securities pursuant to Section 301 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity"). If
the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
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SECTION 310. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 306 and 308)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupons be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such Global Security or impair, as between such depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such Global Security.
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SECTION 311. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities and coupons so delivered to the Trustee shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures, unless by Company Order the Company shall direct
that canceled Securities be returned to it.
SECTION 312. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 313. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.
(a) With respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in Dollar. The
provisions of this Section 313 may be modified or superseded with respect to any
Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraph (d) below, to receive payments of principal of (or premium, if any)
or interest, if any, on such Registered Securities in any of the Currencies
which may be designated for such election by delivering to the Trustee a written
election with signature guaranties and in the applicable form established
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pursuant to Section 301, not later than the close of business on the Election
Date immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such Currency, such election will remain in effect
for such Holder or any transferee of such Holder until changed by such Holder or
such transferee by written notice to the Trustee (but any such change must be
made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made on
such payment date and no such change of election may be made with respect to
payments to be made on any Registered Security of such series with respect to
which an Event of Default has occurred or with respect to which the Company has
deposited funds pursuant to Article Four or Fourteen or with respect to which a
notice of redemption has been given by the Company or a notice of option to
elect repayment has been sent by such Holder or such transferee). Any Holder of
any such Registered Security who shall not have delivered any such election to
the Trustee not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
Currency as provided in Section 313(a). The Trustee shall notify the Exchange
Rate Agent as soon as practicable after the Election Date of the aggregate
principal amount of Registered Securities for which Holders have made such
written election.
(c) Unless otherwise specified pursuant to Section 301, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
301, then, unless otherwise specified pursuant to Section 301, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in such
Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities of such series shall have elected to be paid in
another Currency as provided in paragraph (b) above. If the election referred to
in paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officers' Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar or Foreign Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (b) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
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(d) Unless otherwise specified pursuant to Section 301, if the Holder
of a Registered Security shall have elected to be paid in a Currency other than
Dollar as provided in paragraph (b) above, and a Conversion Event occurs with
respect to such elected Currency, such Holder shall receive payment in Dollar.
(e) The "Dollar Equivalent of the Foreign Currency" shall be determined
by the Exchange Rate Agent and shall be obtained for each subsequent payment
date by converting the specified Foreign Currency into Dollars at the Market
Exchange Rate on the Conversion Date.
(f) The "Dollar Equivalent of the Currency Unit" shall be determined as
specified pursuant to Section 301. "Election Date" shall mean the date for any
series of Registered Securities as specified pursuant to clause (11) of Section
301 by which the written election referred to in paragraph (b) above may be
made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders of such Securities denominated or payable
in the relevant Currency. The Exchange Rate Agent shall promptly give written
notice to the Company and the Trustee of any such decision or determination.
Except as otherwise provided pursuant to Section 301, in the event that
the Company determines in good faith that a Conversion Event has occurred with
respect to a Foreign Currency, the Company will immediately give written notice
thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will
promptly thereafter give notice in the manner provided for in Section 106 to the
affected Holders) specifying the Conversion Date. Except as otherwise provided
pursuant to Section 301, in the event the Company so determines that a
Conversion Event has occurred with respect to any currency unit in which
Securities are payable, the Company will immediately give written notice thereof
to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly
thereafter give notice in the manner provided for in Section 106 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent and shall not
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otherwise have any duty or obligation to determine the accuracy or validity of
such information independent of the Company or the Exchange Rate Agent.
SECTION 314. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE
AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and so long
as the Securities of any series may be payable in a Currency other than Dollars,
or so long as it is required under any other provision of this Indenture, then
the Company will maintain with respect to each such series of Securities, or as
so required, at least one Exchange Rate Agent. The Company will cause the
Exchange Rate Agent to make the necessary foreign exchange determinations at the
time and in the manner specified pursuant to Section 301 for the purpose of
determining the applicable rate of exchange and, if applicable, for the purpose
of converting Dollar into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 313.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are payable in the same Currency).
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SECTION 315. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use) in addition to serial numbers, and, if so, the Trustee shall
use such "CUSIP" numbers in addition to serial numbers in notices of repurchase
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a repurchase and that
reliance may be placed only on the serial or other identification numbers
printed on the Securities, and any such repurchase shall not be affected by any
defect in or omission of such "CUSIP" numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto) and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
306, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 307, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust with the Trustee or any Paying
Agent or segregated and held in trust by the Company and thereafter
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repaid to the Company or discharged from such Trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an amount in
the Currency in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest,
if any, to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be:
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 612 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Subsection (1)
of this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
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SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee. If the Trustee or Paying Agent is unable to apply
any money or Government Obligations in accordance with Section 401 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture shall be revived and
reinstated as though no deposit had occurred pursuant to Section 401; provided
that if the Company has made any payment of principal of, premium, if any, or
interest on the Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of the Securities to
receive such payment from the money or Government Obligations held by the
Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or government body):
(1) default in the payment of any interest on any Security when it
becomes due and payable, and continuance of such default for a period of 30
days;
(2) default in the payment of the principal of (or premium, if any,
on) any Security when due;
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of the Securities of that series and Article Twelve; or
(4) failure to perform or comply with Article Eight;
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(5) default in the performance, or breach, of any covenant or
agreement of the Company contained in this Indenture (other than a default
in the performance, or breach, of a covenant or agreement that is
specifically dealt with elsewhere herein), and continuance of such default
or breach for a period of 60 days after written notice has been given to
the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Securities then
outstanding;
(6) (i) the occurrence of an event of default under any mortgage,
bond, indenture, loan agreement or other document evidencing an issue of
Debt of the Company or any Significant Subsidiary, which issue has an
aggregate outstanding principal amount of not less than $5,000,000, and
such default has resulted in such Debt becoming, whether by declaration or
otherwise, due and payable prior to the date on which it would otherwise
become due and payable or (ii) a default in any payment when due at final
maturity of any such Debt;
(7) failure by the Company or any of its Significant Subsidiaries to
pay one or more final judgments the uninsured portion of which exceeds in
the aggregate $5,000,000, which judgment or judgments are not paid,
discharged or stayed for a period of 60 days;
(8) a court having jurisdiction in the premises enters a decree or
order for (i) relief in respect of the Company or any Significant
Subsidiary in an involuntary case under any applicable Bankruptcy Law now
or hereafter in effect, (ii) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or any Significant Subsidiary or for all or substantially all of
the property and assets of the Company or any Significant Subsidiary or
(iii) the winding up or liquidation of the affairs of the Company or any
Significant Subsidiary and, in each case, such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(9) the Company or any Restricted Subsidiary (i) commences a voluntary
case under any applicable Bankruptcy Law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under
any such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Restricted Subsidiary or for all or
substantially all of the property and assets of the Company or any
Restricted Subsidiary or (iii) effects any general assignment for the
benefit of creditors.
(10) any other Event of Default provided with respect to Securities of
that series.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than as specified in Section 501(8) or
(9)) occurs and is continuing, the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any series then outstanding
may, and the Trustee at the request of such Holders shall, declare the principal
of all of the outstanding Securities of such series immediately due and payable,
by a notice in writing to the Company (and to the Trustee if given by the
Holders) and, if the Credit Facility is in effect, to the Credit Facility Agent
and, upon any such declaration, such principal shall become due and payable
immediately. If an Event of Default specified in Section 501(8) or (9) above
occurs and is continuing, then such principal shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder of Securities.
At any time after a declaration of acceleration under this Indenture,
but before a judgment or decree for payment of the money due has been obtained
by the Trustee, the Holders of a majority in aggregate principal amount of the
outstanding Securities, by written notice to the Company and the Trustee, may
rescind such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) all unpaid principal of (and premium, if any, on) any
outstanding Securities that has become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by
the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and overdue principal amount at the
rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee under this Indenture
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(ii) all Events of Default, other than the non-payment of amounts of
principal of (or premium, if any, on) or interest on the Securities that
have become due solely by such declaration of acceleration, have been cured
or waived.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Stated Maturity or other maturity thereof,
the Company shall, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, with
interest upon the overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 606.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy
subject, however, to Section 513. No recovery of any such judgment upon any
property of the Company shall affect or impair any rights, powers or remedies of
the Trustee or the Holders.
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SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, upon the Securities or the property
of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the
Securities, to take such other actions (including participating as a
member, voting or otherwise, of any official committee of creditors
appointed in such matter) and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of such Holders, vote for the election of a
trustee in bankruptcy or other similar official.
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SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
and as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto,
including the Company or any other obligor on the Securities, as their
interests may appear or as a court of competent jurisdiction may direct,
provided that all sums due and owing to the Holders and the Trustee have
been paid in full as required by this Indenture.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 30 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 30-day period by the Holders of a majority or
more in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders of Securities of the same series.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 308) interest, if any, on, such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in Section 307, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 512. CONTROL BY HOLDERS.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, provided that in each case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability;
(2) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not
consenting; and
(3) subject to the provisions of the TIA Section 315, the Trustee may
take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
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SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past Default or Event
of Default under this Indenture, except a default in the payment of the
principal of (and premium, if any) or interest on any Note, or in respect of a
covenant or provision that under this Indenture cannot be modified or amended
without the consent of the Holder of each Note outstanding.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of Securities of
any series by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys fees and expenses, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest on Securities of any series on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date); provided that neither this Section 514 nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
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SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs with respect to the
Securities of any series and is continuing and is known to the Trustee, the
Trustee shall mail to all Holders of the Securities notice of the Default or
Event of Default within 90 days after the occurrence thereof. Except in the case
of a Default or an Event of Default in payment of principal of (and premium, if
any, on) or interest on any Securities, the Trustee may withhold the notice to
the Holders if a committee of its trust officers in good faith determines that
withholding such notice is in the interests of the Holders.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
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(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and any
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the sole cost of the
Company;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture; and the Trustee shall not be deemed to have notice of any
Default or Event of Default, except in the case of an event of default
involving failures by the Company to pay principal, premium, if any, or
interest on the Securities, unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Company, the
Securities or this Indenture.
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SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements to be made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications set
forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent. The Trustee is permitted
to engage in other transactions; provided, however, that if it acquires any
conflicting interest it must eliminate such conflict or resign.
SECTION 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
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(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel and costs and expenses of
collection), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee (and
their respective directors, officers, employees and agents) for, and to
hold it harmless against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee. As
security for the performance of such obligations of the Company, the Trustee
shall have a claim prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any) or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(8) or (9), the expenses (including
the reasonable charges and expenses of its counsel) of and the compensation for
such services are intended to constitute expenses of administration under
Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS.
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There shall be at all times a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and which shall have an office in
The City of New York, and shall have a combined capital and surplus of at least
$100,000,000. If the Trustee does not have an office in The City of New York,
the Trustee may appoint an agent in The City of New York reasonably acceptable
to the Company to conduct any activities which the Trustee may be required under
this Indenture to conduct in The City of New York. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 607, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 607, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may, at the expense of the Company,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the removed Trustee may, at the expense of the Company,
petition a court of competent jurisdiction for the appointment of a successor
Trustee.
(d) If at any time;
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
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(2) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
the Holder of any Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with Section 609, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If within 30 days of resignation or
removal of the Trustee, no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to the
Holders of Securities of such series in
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the manner provided for in Section 106. Each notice shall include the name of
the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; provided, however, that the
retiring Trustee shall continue to be entitled to the benefit of Section 606;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment
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of such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case any of the Securities shall not have been authenticated by such predecessor
Trustee, any successor Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee. In
all such cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT.
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At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series and the Trustee shall give written notice
of such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, and
a copy of such instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of
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Securities of the series with respect to which such Authenticating Agent will
serve, in the manner provided for in Section 106. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Dated:
-----------------------------
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company or the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any information as to the names and addresses of the Holders
in accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 15 if
required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions
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and covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in TIA Section
313(c), such summaries of any information, documents and reports required
to be filed by the Company pursuant to Subsections (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge with or into any other
Person or, directly or indirectly, convey, transfer or lease its properties and
assets substantially as an entirety to any Person or Persons, unless:
(a) either (i) the Company is the surviving corporation or (ii) the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person that acquires by sale,
assignment, transfer, lease or other disposition the properties and assets
of the Company substantially as an entirety (the "Surviving Entity") (A) is
a corporation, partnership or trust organized and validly existing under
the laws of the United States, any state thereof or the District of
Columbia and (B) expressly assumes, by a supplemental indenture in form
satisfactory to the Trustee, all of the Company's obligations under this
Indenture and the Securities;
(b) immediately after giving effect to such transaction, and after
giving effect thereto, no Default or Event of Default shall have occurred
and be continuing; and
(c) the Company delivers, or causes to be delivered, to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such transaction
complies with the requirements of this Indenture.
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SECTION 802. SUCCESSOR SUBSTITUTED.
In the event of any transaction described in and complying with the
conditions listed in Section 801 in which the Company is not the continuing
obligor under this Indenture, the Surviving Entity shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture, and thereafter the Company shall, except in the case of a lease,
be discharged from all its obligations and covenants under this Indenture and
the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any related coupons (and if
such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are being included solely for the
benefit of such series) or to surrender any right or power herein or in the
Securities conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
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uncertificated form; provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities, if the Company so elects; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 609(b); or
(9) to close this Indenture with respect to the authentication and
delivery of additional series of Securities; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action shall not
adversely affect the interests of the Holders of Securities of any series
and any related coupons in any material respect; or
(11) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect; or
(12) to make any other change that does not adversely affect the
rights of any Holder.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into one or more indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture which affect
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture amendment or waiver shall, without the
consent of the Holder of each Outstanding Security of such series affected
thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any) or any installment of interest on any Security of such series, or
reduce the principal amount thereof (or premium, if any) or the rate of
interest, if any, thereon, or reduce the amount of the principal of an
Original Issue Discount Security of such series that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at the option of
any Holder of any Security of such series, or change any Place of Payment
where, or the Currency in which, any Security of such series or any premium
or interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the Holder, on
or after the Redemption Date or Repayment Date, as the case may be), or
adversely affect any right to convert or exchange any Security as may be
provided pursuant to Section 301 herein; or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture
which affect such series or certain defaults applicable to such series
hereunder and their consequences) provided for in this Indenture, or reduce
the requirements of Section 1504 for quorum or voting with respect to
Securities of such series; or
(3) modify any of the provisions of this Section 902, Section 513 or
Section 1014, except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such series cannot
be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby of such series.
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A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to TIA Section 315(a) through 315(d) and Section 602 hereof) shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities and any related coupons that it will duly and punctually
pay the principal of (and premium, if any) and interest, if any, on the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise) (B) subject to any laws
or regulations applicable thereto, in a Place of Payment for that series which
is located outside the United States, an office or agency where Securities of
that series and related coupons may be presented and surrendered for payment;
provided, however, that, if the Securities of that series are listed on any
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in any required city located outside the United States so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where Securities of
that series that are convertible and exchangeable may be surrendered for
conversion or exchange, as applicable and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of any series and the
related coupons may be presented and surrendered for payment at the offices
specified in the Security, in
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London, and the Company hereby appoints the same as its agents to receive such
respective presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are payable in Dollars, payment of principal of (and
premium, if any) and interest, if any, on any Bearer Security shall be made at
the office of the Company's Paying Agent in The City of New York, if (but only
if) payment in Dollars of the full amount of such principal, premium or
interest, as the case may be, at all offices or agencies outside the United
States maintained for such purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities as contemplated by Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan.
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series may be payable in a
Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
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If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 313(b), 313(d) and 313(e)) sufficient to pay the principal
of (or premium, if any) or interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to or on each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee) for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) and interest, if any, on Securities of such series in
trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal of (or premium, if any) or interest, if any, on the
Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by
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the Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as provided in the Securities of any series, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (or premium, if any) or interest, if any, on any
Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security or coupon shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Restricted Subsidiary and the corporate rights
(charter and statutory), licenses and franchises of the Company and each
Restricted Subsidiary; provided, however, that the Company shall not be required
to preserve any such existence (except of the Company), right, license or
franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and each of its Restricted Subsidiaries, taken as a whole, and that
the loss thereof is not, and shall not be, disadvantageous in any material
respect to the Holders.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a material liability or lien
upon the property of the Company or any Restricted Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good
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faith by appropriate proceedings and for which appropriate reserves, if
necessary (in the good faith judgment of management of the Company), are being
maintained in accordance with GAAP.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company shall cause all material properties owned by the Company or
any Restricted Subsidiary or used or held for use in the conduct of its business
or the business of any Restricted Subsidiary to be maintained and kept in normal
condition, repair and working order and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section shall prevent the Company or any of its Restricted
Subsidiaries from discontinuing the maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Restricted Subsidiary and not adverse in
any material respect to the Holders.
SECTION 1007. INSURANCE.
To the extent available at commercially reasonable rates, the Company
shall maintain, and shall cause each of its Restricted Subsidiaries to maintain,
insurance with responsible carriers against such risks and in such amounts, and
with such deductibles, retentions, self-insured amounts and co-insurance
provisions, as are customarily carried by similar businesses, of similar size,
including professional and general liability, property and casualty loss,
workers' compensation and interruption of business insurance.
SECTION 1008. OTHER COVENANTS.
The applicable prospectus supplement will describe any material
covenants in respect of a series of Securities.
SECTION 1009. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year ending after the date hereof, a brief certificate of its
principal executive officer, principal financial officer or principal accounting
officer stating whether, to such officer's knowledge, the Company is in
compliance with all covenants and conditions to be complied with by it under
this Indenture. For purposes of this Section 1009, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 1103. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301, notice of
redemption shall be given in the manner provided for in Section 106 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed.
All notices of redemption shall identify the Securities (including
CUSIP number, if any) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section
1106 will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
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(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the Redemption Date or the amount of any
such missing coupon or coupons will be deducted from the Redemption Price
unless security or indemnity satisfactory to the Company, the Trustee and
any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on such Redemption Date pursuant to Section 306 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to 10.00 a.m. on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 313(b), 313(d)
and 313(e)) sufficient to pay the Redemption Price of, and accrued interest, if
any, on, all the Securities which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
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Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 313(b), 313(d) and 313(e)) (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 308.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
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SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
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SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND .
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 313(b), 313(d) and 313(e)) and the portion thereof, if any,
which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 (which Securities will, if not previously delivered,
accompany such certificate) and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such
series. Such certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. In the case of
the failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for that series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities as provided in Section 1202 and without the
right to make any optional sinking fund payment, if any, with respect to such
series.
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Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) in cash a sum equal to
any interest that will accrue to the date fixed for redemption of Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the written request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be promptly
reimbursed by the Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
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SECTION 1302. REPAYMENT OF SECURITIES.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 313(b), 313(d) and 313(e)) sufficient to pay
the principal (or, if so provided by the terms of the Securities of any series,
a percentage of the principal) of and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest, if any, on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
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SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date; provided
however, that coupons whose Stated Maturity is on or prior to the Repayment Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
pursuant to Section 301, only upon presentation and surrender of such coupons;
and provided further that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the Repayment Date
shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 308.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them amid any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the
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rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1305. SECURITIES REPAID IN PART.
Upon surrender of any Registered Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge and at the expense of the
Company, a new Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen shall apply to
each series of Securities, and the Company may, at its option, effect defeasance
of the Securities of or within a series under Section 1402, or covenant
defeasance of or within a series under Section 1403 in accordance with the terms
of such Securities and in accordance with this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE.
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Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any related coupons when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Fourteen. Subject to compliance
with this Article Fourteen, the Company may exercise its option under this
Section 1402 notwithstanding the prior exercise of its option under Section 1403
with respect to such Securities and any related coupons.
SECTION 1403. COVENANT DEFEASANCE.
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Upon the Company's exercise under Section 1402 of the option applicable
to this Section 1403 with respect to any Securities of or within a series, the
Company shall be released from its obligations under any covenant under Article
Eight and in Sections 1004 through 1008, and, if specified pursuant to Section
301, its obligations under any other covenant, with respect to such Outstanding
Securities and any related coupons on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "Covenant Defeasance"), and
such Securities and any related coupons shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder (it being understood that such Securities shall not be deemed
Outstanding for financial accounting purposes). For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
related coupons, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 501(5) or Section
501(10) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any related coupons shall be
unaffected thereby. In addition, upon the Company's exercise under Section 1401
of the option applicable to Section 1403, Sections 501(5) through (7) shall not
constitute Events of Default.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a series and any
related coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
related coupons, (A) money in an amount, or (B) Government Obligations
applicable to such Securities which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment of
principal of and premium, if any, and interest, if any, under such
Securities and any related coupons, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to
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<PAGE> 105
pay and discharge, (i) the principal of (and premium, if any) and interest,
if any, on such Outstanding Securities and any related coupons on the
Stated Maturity (or Redemption Date, if applicable) of such principal (and
premium, if any) or installment of interest, if any, and (ii) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding
Securities and any related coupons on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of such
Securities and any related coupons; provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities and
any related coupons. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 1102 hereof, a notice of its election
to redeem all or any portion of such Outstanding Securities at a future
date in accordance with the terms of the Securities of such series and
Article Eleven hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the
foregoing.
(2) No Default or Event of Default with respect to such Securities or
any related coupons shall have occurred and be continuing on the date of
such deposit or, insofar as paragraphs (8) and (9) of Section 501 are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(3) No event or condition shall exist that would prevent the Company
from making payments of the principal of (and premium, if any) or interest
on the Securities on the date of such deposit or at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound or cause the Trustee or the trust so created to be
subject to the Investment Company Act of 1940, as amended.
(5) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of execution of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
related coupons will not recognize income, gain or loss for federal income
tax purposes as a result of such defeasance and will be subject to federal
income tax on the same amounts, in the same
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<PAGE> 106
manner and at the same times as would have been the case if such defeasance
had not occurred.
(6) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a result
of such covenant defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(7) In the case of an election under either Section 1402 or 1403, the
Company shall represent to the Trustee that the deposit made by the Company
pursuant to its election under Section 1402 or 1403 was not made by the
Company with the intent of preferring the Holders of Securities of any
series over other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others.
(8) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402
or the covenant defeasance under Section 1403 (as the case may be) have
been complied with.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any related coupons and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any related coupons of all sums
due and to become due thereon in respect of principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
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<PAGE> 107
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 313(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 1404(1) has been made in respect of such Security, or (b) a
Conversion Event occurs as contemplated in Section 313(d) or 313(e) or by the
terms of any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the third Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any related coupons.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
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SECTION 1406. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, however, that if the Company makes any
payment of principal of (or premium, if any) or interest, if any, on any such
Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1501, to be held at such time
and at such place in The City of New York or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided for in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose
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specified in Section 1501, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine the
time and the place in The City of New York or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
paragraph (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Person
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that, if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
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Subject to the foregoing, at the reconvening of any meeting adjourned
for lack of a quorum the Persons entitled to vote 25% in principal amount of the
Outstanding Securities at the time shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series; provided however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
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SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Outstanding
Securities of such series held or represented by him (determined as specified in
the definition of "Outstanding" in Section 101); provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
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SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the Secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
CITADEL COMMUNICATIONS
CORPORATION
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK
As Trustee
By:
-----------------------------------
Name:
Title:
103
<PAGE> 1
EXHIBIT 4.8
- --------------------------------------------------------------------------------
CITADEL COMMUNICATIONS CORPORATION
Issuer,
to
THE BANK OF NEW YORK,
Trustee
------------------
INDENTURE
Dated as of _________
------------------
Senior Subordinated Debt Securities
- --------------------------------------------------------------------------------
<PAGE> 2
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of __________
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) ...................................... 607(a)
(a)(2) ...................................... 607(a)
(b) ...................................... 608(b), 609
Section 311(a) ...................................... 612
(b) ...................................... 612
Section 312(c) ...................................... 701
Section 313 ...................................... 702
Section 314(a) ...................................... 703
(a)(4) ...................................... 1009
(c)(1) ...................................... 102
(c)(2) ...................................... 102
(e) ...................................... 102
Section 315(b) ...................................... 601
Section 316(a)(last
sentence) ...................................... 101 ("Outstanding")
(a)(1)(A) ...................................... 502, 512
(a)(1)(B) ...................................... 513
(b) ...................................... 508
(c) ...................................... 104(e)
Section 317(a)(1) ...................................... 503
(a)(2) ...................................... 504
(b) ...................................... 1003
Section 318(a) ...................................... 108
<PAGE> 3
TABLE OF CONTENTS
Page
PARTIES.......................................................................1
RECITALS OF THE COMPANY ..................................................... 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.....................................................1
Act...........................................................2
Authenticating Agent..........................................2
Authorized Newspaper..........................................2
Bankruptcy Law................................................2
Banks.........................................................2
Bearer Security...............................................2
Board of Directors............................................2
Board Resolution..............................................2
Book-Entry Security...........................................3
Business Day..................................................3
Capital Stock.................................................3
Capitalized Lease Obligation..................................3
Cedel.........................................................3
Commission....................................................3
Common Depositary.............................................3
Company.......................................................3
"Company Request" or "Company Order"..........................3
Conversion Date...............................................3
Conversion Event..............................................4
Corporate Trust Office........................................4
corporation...................................................4
coupon........................................................4
covenant defeasance...........................................4
Credit Facility...............................................4
Credit Facility Agent.........................................4
Currency......................................................4
Custodian.....................................................4
Debt..........................................................4
Default.......................................................5
Defaulted Interest............................................5
<PAGE> 4
ii
defeasance....................................................5
Depository....................................................5
Disqualified Stock............................................5
"Dollar" or "$"...............................................5
Dollar Equivalent of the Currency Unit........................6
Dollar Equivalent of the Foreign Currency.....................6
Election Date.................................................6
Euro..........................................................6
Euroclear.....................................................6
Event of Default..............................................6
Exchange Act..................................................6
Exchange Date.................................................6
Exchange Rate Agent...........................................6
Exchange Rate Officers' Certificate...........................6
"Extension Notice" and "Extension Period".....................6
Final Maturity................................................6
Foreign Currency..............................................6
"generally accepted accounting principles" or "GAAP"..........7
Global Securities.............................................7
Government Obligations........................................7
guarantee.....................................................7
Hedging Obligations...........................................7
Holder........................................................7
incorporated provision........................................7
Indebtedness..................................................8
Indenture.....................................................8
Indexed Security..............................................8
interest......................................................8
Interest Payment Date.........................................8
Lease.........................................................8
Lien..........................................................8
mandatory sinking fund payment................................9
Market Exchange Rate..........................................9
Maturity......................................................9
Notice of Default.............................................9
Officers' Certificate.........................................9
Opinion of Counsel...........................................10
Option to Elect Repayment....................................10
Optional Reset Date..........................................10
optional sinking fund payment................................10
Original Issue Discount Security.............................10
Original Stated Maturity.....................................10
<PAGE> 5
iii
Outstanding..................................................10
Paying Agent.................................................11
Person.......................................................11
Place of Payment.............................................11
Predecessor Security.........................................11
Redemption Date..............................................12
Redemption Price.............................................12
Registered Security..........................................12
Regular Record Date..........................................12
Repayment Date...............................................12
Repayment Price..............................................12
Responsible Officer..........................................12
Securities...................................................12
"Security Register" and "Security Registrar".................12
Senior Debt..................................................12
Special Record Date..........................................13
Stated Maturity..............................................13
Subsequent Interest Period...................................13
Subsidiary...................................................13
Surviving Entity.............................................13
Trust Indenture Act or TIA...................................13
Trustee......................................................13
United States................................................14
United States person.........................................14
Unrestricted Subsidiary......................................14
Valuation Date...............................................14
Vice President...............................................14
Voting Stock.................................................14
Yield to Maturity............................................14
SECTION 102. Compliance Certificates and Opinions...........................14
SECTION 103. Form of Documents Delivered to Trustee.........................15
SECTION 104. Acts of Holders................................................16
SECTION 105. Notices, etc. to Trustee and Company...........................17
SECTION 106. Notice to Holders; Waiver......................................18
SECTION 107. Conflict of Any Provision of Indenture with Trust
Indenture Act.................................................19
SECTION 108. Effect of Headings and Table of Contents.......................19
SECTION 109. Successors and Assigns.........................................19
SECTION 110. Separability Clause............................................19
SECTION 111. Benefits of Indenture..........................................20
SECTION 112. Governing Law..................................................20
SECTION 113. Legal Holidays.................................................20
SECTION 114. No Personal Liability of Directors, Officers, Employees,
Stockholders or Incorporators................................20
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.................................................21
SECTION 202. Form of Trustee's Certificate of Authentication.................21
SECTION 203. Securities Issuable in Global Form..............................22
SECTION 204. Form of Legend for Book-Entry Securities........................23
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series............................24
SECTION 302. Denominations...................................................27
SECTION 303. Execution, Authentication, Delivery and Dating..................27
SECTION 304. Book-Entry Securities...........................................30
SECTION 305. Temporary Securities............................................31
SECTION 306. Registration, Registration of Transfer and Exchange.............34
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities................37
SECTION 308. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset........................................39
SECTION 309. Optional Extension of Stated Maturity...........................42
SECTION 310. Persons Deemed Owners...........................................42
SECTION 311. Cancellation....................................................43
SECTION 312. Computation of Interest.........................................44
SECTION 313. Currency and Manner of Payments in Respect of Securities........44
SECTION 314. Appointment and Resignation of Successor Exchange Rate Agent....46
SECTION 315. CUSIP Numbers...................................................47
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.........................47
SECTION 402. Application of Trust Money......................................49
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...............................................49
SECTION 502. Acceleration of Maturity; Rescission and Annulment..............51
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.52
SECTION 504. Trustee May File Proofs of Claim................................53
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.....54
SECTION 506. Application of Money Collected..................................54
SECTION 507. Limitation on Suits.............................................54
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest...........................................55
SECTION 509. Restoration of Rights and Remedies..............................55
SECTION 510. Rights and Remedies Cumulative..................................56
SECTION 511. Delay or Omission Not Waiver....................................56
SECTION 512. Control by Holders..............................................56
SECTION 513. Waiver of Past Defaults.........................................56
SECTION 514. Undertaking for Costs...........................................57
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SECTION 515. Waiver of Stay or Extension Laws...............................57
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.............................................58
SECTION 602. Certain Rights of Trustee......................................58
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities....................................................59
SECTION 604. May Hold Securities............................................59
SECTION 605. Money Held in Trust............................................60
SECTION 606. Compensation and Reimbursement.................................60
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests.....................................................61
SECTION 608. Resignation and Removal; Appointment of Successor..............61
SECTION 609. Acceptance of Appointment by Successor.........................63
SECTION 610. Merger, Conversion, Consolidation or Succession to Business....64
SECTION 611. Appointment of Authenticating Agent............................65
SECTION 612. Preferential Collection of Claims Against Company..............66
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders...................67
SECTION 702. Reports by Trustee.............................................67
SECTION 703. Reports by Company.............................................67
ARTICLE EIGHT
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...........68
SECTION 802. Successor Substituted..........................................68
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.............69
SECTION 902. Supplemental Indentures with Consent of Holders................70
SECTION 903. Execution of Supplemental Indentures...........................72
SECTION 904. Effect of Supplemental Indentures..............................72
SECTION 905. Conformity with Trust Indenture Act............................72
SECTION 906. Reference in Securities to Supplemental Indentures.............72
SECTION 907. Notice of Supplemental Indentures..............................72
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest...........73
SECTION 1002. Maintenance of Office or Agency...............................73
SECTION 1003. Money for Securities Payments to Be Held in Trust.............75
SECTION 1004. Corporate Existence...........................................76
SECTION 1005. Payment of Taxes and Other Claims.............................77
SECTION 1006. Maintenance of Properties.....................................77
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SECTION 1007. Insurance.....................................................77
SECTION 1008. Other Covenants...............................................77
SECTION 1009. Statement as to Compliance....................................78
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article......................................78
SECTION 1102. Election to Redeem; Notice to Trustee.........................78
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.............78
SECTION 1104. Notice of Redemption..........................................79
SECTION 1105. Deposit of Redemption Price...................................80
SECTION 1106. Securities Payable on Redemption Date.........................80
SECTION 1107. Securities Redeemed in Part...................................81
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 1201. Securities Subordinated to Senior Debt........................82
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc................82
SECTION 1203. No Payment When Certain Senior Debt in Default................83
SECTION 1204. Payment Permitted if No Default...............................84
SECTION 1205. Subrogation to Rights of Holders of Senior Debt...............84
SECTION 1206. Provisions Solely to Define Relative Rights...................85
SECTION 1207. Trustee to Effectuate Subordination...........................85
SECTION 1208. No Waiver of Subordination Provisions.........................86
SECTION 1209. Notice to Trustee.............................................86
SECTION 1210. Reliance on Judicial Order or Certificate of
Liquidation Agent............................................87
SECTION 1211. Trustee Not Fiduciary for Holders of Senior Debt..............87
SECTION 1212. Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights..........................................87
SECTION 1213. Applicability to Paying Agents................................88
SECTION 1214. Defeasance of this Article Twelve.............................88
SECTION 1215. Subordination Provisions Controlling..........................88
SECTION 1216. Article Twelve Not to Prevent Events of Default...............88
SECTION 1217. Trustee's Compensation Not Prejudiced.........................89
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 1301. Applicability of Article......................................89
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities.........89
SECTION 1303. Redemption of Securities for Sinking Fund.....................90
ARTICLE FOURTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1401. Applicability of Article......................................91
SECTION 1402. Repayment of Securities.......................................91
SECTION 1403. Exercise of Option............................................91
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SECTION 1404. When Securities Presented for Repayment Become Due
and Payable..................................................92
SECTION 1405. Securities Repaid in Part.....................................93
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or Covenant Defeasance..93
SECTION 1502. Defeasance and Discharge......................................94
SECTION 1503. Covenant Defeasance...........................................94
SECTION 1504. Conditions to Defeasance or Covenant Defeasance...............95
SECTION 1505. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.....................97
SECTION 1506. Reinstatement.................................................98
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called.....................98
SECTION 1602. Call, Notice and Place of Meetings............................99
SECTION 1603. Persons Entitled to Vote at Meetings..........................99
SECTION 1604. Quorum; Action................................................99
SECTION 1605. Determination of Voting Rights; Conduct and Adjournment
of Meetings.................................................101
SECTION 1606. Counting Votes and Recording Action of Meetings..............102
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TESTIMONIUM.................................................................103
SIGNATURES AND SEALS........................................................103
EXHIBIT A-1 -- Form of Certificate to Be Given by Person Entitled to Receive
Bearer Security or to Obtain Interest Payable Prior to the
Exchange Date
EXHIBIT A-2 -- Form of Certificate to Be Given by Euroclear and Cedel S.A. in
Connection with the Exchange of a Portion of a Temporary
Global Security or to Obtain Interest Payable Prior to the
Exchange Date
<PAGE> 11
INDENTURE, dated as of __________ between CITADEL
COMMUNICATIONS CORPORATION, a corporation duly organized and existing under the
laws of the State of Nevada (the "Company"), having its principal office at City
Center West, Suite 400, 7201 West Lake Mead Boulevard, Las Vegas, Nevada 89128,
and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its subordinated
debt securities (herein called the "Securities"), to be issued in one or more
series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and words in the singular include the
plural as well as the singular, and words in the plural include the
singular as well as the plural;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311,
<PAGE> 12
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shall have the meanings assigned to them in the rules of the
Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and except as otherwise herein expressly
provided; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined
in that Article.
"Act" when used with respect to any Holder, has the meaning
specified in Section 104.
"Authenticating Agent" means any Person appointed by the
Trustee to act on behalf of the Trustee pursuant to Section 611 to authenticate
Securities.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code
of 1978, as amended, or any similar United States federal or state or foreign
law relating to bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or change
in any such law.
"Banks" means the banks and other financial institutions that
from time to time are lenders under the Credit Facility.
"Bearer Security" means any Security except a Registered
Security.
"Board of Directors" means, with respect to any Person, either
the board of directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the secretary or an assistant secretary of such
Person to have been duly adopted by
<PAGE> 13
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the Board of Directors of such Person and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Book-Entry Security" has the meaning specified in Section
304.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York are authorized or obligated by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, partnership interests, participations rights in or other
equivalents (however designated) of such Person's equity (however designated)
whether now outstanding or issued after the date of this Indenture.
"Capitalized Lease Obligation" means, with respect to any
Person, an obligation incurred or assumed under or in connection with any
capital lease of real or personal property that, in accordance with GAAP, has
been recorded as a capitalized lease on the balance sheet of such Person.
"Cedel" means Cedel Bank, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 305.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company (i) by its chairman, a vice-chairman,
its president or any vice president and (ii) by its treasurer, an assistant
treasurer, its secretary or an assistant secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the officers or directors listed in clause (i) above in lieu of being signed
by one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.
"Conversion Date" has the meaning specified in Section 313(d).
<PAGE> 14
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"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Currency and by
a central bank or other public institution of or within the international
banking community for the settlement of transactions other than as a result of
the European Economic and Monetary Union and the adoption or phase in of the
Euro pursuant thereto, or (ii) any currency unit (or composite currency)
including the Euro for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office on the date of execution of this Indenture is located
at 101 Barclay Street, 21st Floor, New York, New York 10286.
"corporation" includes corporations, associations,
partnerships, limited liability companies, companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"covenant defeasance" has the meaning specified in Section
1503 hereof.
"Credit Facility" means any loan agreement that will be
entered into by the Company and the lender parties thereto and as such agreement
may be amended, restated, supplemented, replaced or refinanced or otherwise
modified from time to time.
"Credit Facility Agent" means the then acting Agent as defined
in and under the Credit Facility or any successor thereto.
"Currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
Euro, issued by the government of one or more countries or by any recognized
confederation or association of such governments.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar officer under any Bankruptcy Law.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (a) every obligation of such Person for money
borrowed, (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (d) every obligation of such
Person issued or assumed as the deferred purchase price of property or services,
(e) every Capitalized Lease Obligation of such Person, (f)
<PAGE> 15
5
all Disqualified Stock of such Person valued at its maximum fixed repurchase
price, plus accumulated and unpaid dividends, (g) all Hedging Obligations of
such Person, and (h) every obligation of the types referred to in clauses (a)
through (g) of another Person and all dividends of another Person (i) the
payment of which, in either case, such Person has guaranteed or (ii) which is
secured by any Lien on any property or asset of such Person, the amount of such
Debt being deemed to be the lesser of the actual amount of the guarantee or the
value of such property or asset subject to such Lien, as the case may be, and
the amount of the Debt so guaranteed or secured, as the case may be. For
purposes of this definition, the "maximum fixed repurchase price" of any
Disqualified Stock that does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were repurchased on any date on which Debt is required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Stock, such fair market
value shall be determined reasonably and in good faith by the board of directors
of the issuer of such Disqualified Stock. Notwithstanding the foregoing, trade
accounts payable and accrued liabilities arising in the ordinary course of
business and any liability for federal, state or local taxes or other taxes owed
by such Person shall not be considered Debt for purposes of this definition. The
amount outstanding at any time of any Debt issued with original issue discount
is the aggregate principal amount at maturity of such Debt, less the remaining
unamortized portion of the original issue discount of such Debt at such time, as
determined in accordance with GAAP.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 308
hereof.
"defeasance" has the meaning specified in Section 1502 hereof.
"Depository" has the meaning specified in Section 304.
"Disqualified Stock" means, with respect to any series of
Securities, any Capital Stock of the Company or any Restricted Subsidiary which,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of such Securities.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
<PAGE> 16
6
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 313(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 313(f).
"Election Date" has the meaning specified in Section 313(g).
"Euro" means the single currency for those member states of
the European Union that satisfy certain criteria set forth in the Treaty of
Rome, as amended by the Treaty on European Union.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Exchange Date" has the meaning specified in Section 305.
"Exchange Rate Agent" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officers' Certificate" means a tested telex or
a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by the Chairman, Chief Executive Officer,
a Vice Chairman, the President, a Vice President or the Treasurer of the
Company.
"Extension Notice" and "Extension Period" shall have the
meanings specified in Section 309.
"Final Maturity" has the meaning specified in Section 309.
"Foreign Currency" means any Currency other than Currency of
the United States.
<PAGE> 17
7
"generally accepted accounting principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, which were in effect as of November 30, 1999.
"Global Securities" means one or more Securities evidencing
all or part of the Securities to be issued as Book-Entry Securities, issued to
the Depository in accordance with Section 301 and bearing the legend prescribed
in Section 204.
"Government Obligations" means, unless otherwise specified
with respect to any series of Securities pursuant to Section 301, securities
which are (i) direct obligations of the government of the United States of
America or (ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the government of United States of America,
which, in either case, are not callable or redeemable at the option of the
issuer thereof and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest or principal of the Government
Obligation evidenced by such depository receipt.
"guarantee" means, as applied to any obligation, (a) a
guarantee (other than by endorsement of negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation and (b) an agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limitation, the payment of
amounts drawn down under letters of credit.
"Hedging Obligations" means the obligations of any Person
under (a) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements and (b) other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or the
value of foreign currencies.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"incorporated provision" has the meaning specified in Section
107.
<PAGE> 18
8
"Indebtedness" with respect to any Person, means the Debt of
such Person; provided that, for purposes of the definition of "Indebtedness"
(including the term "Debt" to the extent incorporated in such definition) and
for purposes of the definition of Event of Default, the term "guarantee" shall
not be interpreted to extend to a guarantee under which recourse is limited to
the Capital Stock of an entity that is not a Restricted Subsidiary.
"Indenture" means this instrument as originally executed
(including all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, and shall include the terms
of particular series of Securities established as contemplated by Section 301;
provided, however, that, if at any time more than one Person is acting as
Trustee under this instrument, "Indenture" shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate prescribed in such Original Issue
Discount Security.
"Interest Payment Date", when used with respect to any series
of Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Lease" means any capital lease, operating lease, equipment
lease, real property lease or other lease.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, preference, priority or other encumbrance upon or with respect
to any property of any kind, real or personal, movable or immovable, now owned
or hereafter acquired. A Person shall be deemed to own subject to a Lien any
property that such Person has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement.
<PAGE> 19
9
"mandatory sinking fund payment" shall have the meaning
specified in Section 1201.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon (New York City time) buying rate for such
Foreign Currency for cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in accordance with
normal banking procedures, the Dollars or Foreign Currency into which conversion
is being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in either New York City, London or any
other principal market for Dollars or such purchased Foreign Currency, in each
case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 301, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or another principal
market for the Currency in question, or such other quotations as the Exchange
Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange
Rate Agent, if there is more than one market for dealing in any Currency by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such Currency shall be that upon which a non-resident issuer of
securities designated in such Currency would purchase such Currency in order to
make payments in respect of such securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided whether at the Stated Maturity, by declaration of
acceleration, notice of redemption, notice of option to elect repayment or
otherwise.
"Notice of Default" shall have the meaning specified in
Section 601.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company that meets the requirements set
forth in Section 102.
<PAGE> 20
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"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee. Each
such opinion shall include the statements provided for in TIA Section 314(e) to
the extent applicable.
"Option to Elect Repayment" shall have the meaning specified
in Section 1303.
"Optional Reset Date" shall have the meaning specified in
Section 308.
"optional sinking fund payment" shall have the meaning
specified in Section 1201.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Original Stated Maturity" shall have the meaning specified in
Section 309.
"Outstanding" when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment,
purchase, redemption or repayment at the option of the Holder money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
and
(iv) Securities paid pursuant to Section 307 or Securities in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
<PAGE> 21
11
provided, however, that, in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder or are present at a meeting of Holders
for quorum purposes, and for the purpose of making the calculations required by
TIA Section 313, (i) the principal amount of an Original Issue Discount Security
that may be counted in making such determination or calculation and that shall
be deemed to be Outstanding for such purpose shall be equal to the amount of
principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration
of the maturity thereof pursuant to Section 502, (ii) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 301,
and (iii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (or premium,
if any) or interest, if any, on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any) and interest, if any, on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 307 in exchange for a
mutilated Security or in lieu of a destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon appertains shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security or the Security to which the mutilated, destroyed, lost or stolen
coupon appertains, as the case may be.
<PAGE> 22
12
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means any vice-president, any assistant secretary, any assistant treasurer, any
trust officer or assistant trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above-designated officers or assigned
by the Trustee to administer corporate trust matters at its Corporate Trust
Office and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means [ ].
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 306.
"Senior Debt" means the principal of and premium, if any, and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, whether or not
allowed) and other amounts due on or in connection with any
<PAGE> 23
13
Debt of the Company (other than the Securities or Pari Passu Debt), whether
outstanding on the date of execution of this Indenture or thereafter incurred,
unless, in the case of any particular Debt, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Debt shall be subordinate in right of payment to any Debt or
other general unsecured obligations of the Company. Without limiting the
generality of the foregoing, "Senior Debt" includes the principal of and
premium, if any, fees and interest (including interest accruing after the
occurrence of an event of default or after the filing of a petition initiating
any proceeding pursuant to any Bankruptcy Law, whether or not allowed) on all
obligations of every nature of the Company from time to time owed to the Banks
under the Credit Facility. Notwithstanding the foregoing, "Senior Debt" shall
not include (a) Debt that is Disqualified Stock, (b) Debt of the Company to a
Restricted Subsidiary or any other Affiliate of the Company or any of such
Affiliate's Subsidiaries, (c) that portion of any Debt that, at the time of the
incurrence, is incurred by the Company in violation of this Indenture.
"Special Record Date" means a date fixed by the Trustee for
the payment of any Defaulted Interest pursuant to Section 308.
"Specified Senior Debt" means (a) all Senior Debt under the
Credit Facility and (b) any other issue of Senior Debt having a principal amount
of at least $10.0 million.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 309.
"Subsequent Interest Period" shall have the meaning specified
in Section 308.
"Subsidiary" means any Person a majority of the equity
ownership or Voting Stock of which is at the time owned, directly or indirectly,
by the Company and/or one or more other Subsidiaries of the Company.
"Surviving Entity" shall have the meaning set forth in Section
801 hereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended, and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a
<PAGE> 24
14
Trustee hereunder; provided, however, that if at any time there is more than one
such Person, "Trustee" as used with respect to the Securities of any series
shall mean only the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"Valuation Date" has the meaning specified in Section 313(c).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of any Person (irrespective of whether or not, at the time,
stock of any other class or classes has, or might have, voting power by reason
of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such
<PAGE> 25
15
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
<PAGE> 26
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Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article Sixteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to TIA Section 315) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1606.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or
<PAGE> 27
17
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may also be proved in any other
manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of such
Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), any such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Securities then Outstanding shall be computed as of such record date; PROVIDED
that no such request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security or the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
<PAGE> 28
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(1) the Trustee by any Holder, the Agents of the Banks or
the Company shall be sufficient for every purpose hereunder if made,
given, furnished or delivered, in writing, to or with the Trustee at
its Corporate Trust Office, Attention: Corporate Trust Trustee
Administration; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or delivered, in writing,
or mailed, first class postage prepaid, or delivered by recognized
overnight courier, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture, or
at any other address previously furnished in writing to the Trustee by
the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Company or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided. Any notice
mailed to a Holder in the aforesaid manner shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives such
notice.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical to
mail notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given to Holders of Bearer Securities if published
in an Authorized Newspaper in The City of New York and in such other city or
cities as may be specified in such Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of the first such
publication.
<PAGE> 29
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In case, by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause,
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to give
notice by publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. CONFLICT OF ANY PROVISION OF INDENTURE WITH
TRUST INDENTURE ACT.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by TIA Sections 310 to
318, inclusive, or conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by operation of such TIA
Sections, such imposed duties or incorporated provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
<PAGE> 30
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In case any provision in this Indenture or in any Security or
coupon shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar, any holders of
Senior Debt and their successors hereunder and the Holders of Securities or
coupons, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THIS INDENTURE SHALL BE SUBJECT TO, AND GOVERNED BY, THE PROVISIONS OF THE TRUST
INDENTURE ACT OF 1939, AS AMENDED, THAT ARE REQUIRED TO BE PART OF AND TO GOVERN
INDENTURES QUALIFIED THEREUNDER.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date or Stated Maturity or Maturity of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of any Security or coupon other than a provision
in the Securities of any series which specifically states that such provision
shall apply in lieu of this Section), payment of principal (or premium, if any)
or interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
PROVIDED that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
SECTION 114. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES, STOCKHOLDERS OR INCORPORATORS.
No director, officer, employee, incorporator or stockholders,
as such, of the Company shall have any liability for any obligations of the
Company under the Securities or this
<PAGE> 31
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Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creations. Each Holder by accepting any of the Securities
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities of any series.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons shall be in
substantially the forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons. If the forms of Securities or coupons of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities or coupons. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Security.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities
shall be in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed,
lithographed or engraved on steel-engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 612, the Trustee's certificate of
authentication shall be in substantially the following form:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By_________________________
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or Section 305. Subject
to the provisions of Section 303 and, if applicable, Section 305, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or Section
305 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
<PAGE> 33
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Notwithstanding the provisions of Section 308, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, if any, on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 310 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent Global Security (i) in the
case of a permanent Global Security in registered form, the Holder of such
permanent Global Security in registered form, or (ii) in the case of a permanent
Global Security in bearer form, Euroclear or Cedel.
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Global Security authenticated and delivered hereunder
shall bear a legend (which would be in addition to any other legends required in
the case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK 10041) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE ISSUED IN EXCHANGE
FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ARTICLE THREE
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THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title and ranking of the Securities of the series
(which shall distinguish the Securities of the series from all other
series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 305, 306, 307, 906, 1107
or 1405);
(3) the Person to whom any interest on the Securities of any
series is payable if other than the Person in whose name the Securities
of such series are registered on the Regular Record Date;
(4) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date or dates shall be determined, and the basis upon which
interest shall be calculated if other than on the basis of a 360-day
year of twelve 30-day months;
<PAGE> 35
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(6) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal of
(and premium, if any) and interest, if any, on Securities of the series
shall be payable, where any Registered Securities of the series may be
surrendered for registration of transfer, where Securities of the
series may be surrendered for exchange, where Securities of the series
that are convertible or exchangeable may be surrendered for conversion
or exchange, as applicable and, if different than the location
specified in Section 106, the place or places where notices or demands
to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(7) the period or periods within which, the events upon the
occurrence of which, the price or prices at which, and other terms and
conditions upon which Securities of the series may be redeemed or
purchased, in whole or in part, at the option of the Company, if the
Company is to have that option;
(8) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which, and other
terms and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Securities of the series shall be issuable;
(10) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more Currencies, commodities, equity indices or other indices),
and the manner in which such amounts shall be determined;
(11) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be payable, at
the election of the Company or a Holder thereof, in a Currency other
than Dollar, the period or periods within which (including the Election
Date), and the terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate between
the Currency in which such Securities are denominated or stated to be
payable and the Currency in which such Securities are to be so payable,
in each case in accordance with, in addition to or in lieu of any of
the provisions of Section 313;
(12) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of
<PAGE> 36
26
the Maturity thereof pursuant to Section 502 or the method by which
such portion shall be determined;
(13) if the principal amount of the Securities of the series
payable at the Maturity thereof is not determinable as of any date
prior to such Maturity, the amount which shall be deemed to be the
Outstanding principal amount of the Securities of such series;
(14) any change in the applicability of Sections 1502 and/or
1503 to the Securities of the series and any provisions in modification
of, in addition to or in lieu of any of the provisions of Article
Fifteen that shall be applicable to the Securities of the series;
(15) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any Securities
of the series are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of interests in
any such permanent Global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 306, whether
Registered Securities of the series may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and
regulations), whether Bearer Securities of the series may be exchanged
for Registered Securities of such series, and the circumstances under
which and the place or places where any such exchanges may be made and
if Securities of the series are to be issuable in global form, the
identity of any initial depository therefor;
(16) any change in the applicability of the Events of Default
of the Company with respect to Securities of the series, whether or not
such Events of Default are consistent with the Events of Default set
forth herein;
(17) any deletions from, modifications of or additions to the
covenants of the Company with respect to Securities of the series,
whether or not such covenants are consistent with the covenants set
forth herein;
(19) if the Securities of the series are to be secured;
(20) whether the provisions of Article Twelve and the related
definitions shall be applicable to Securities of the series or, if not,
the subordination provisions and related definitions that will be
applicable to Securities of the series;
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(21) the specific terms of the depository arrangement with
respect to any portion of a series of Securities to be represented by a
Global Security pursuant to Section 304; and
(22) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. With respect
to Securities of any series denominated in Dollars, in the absence of any such
provisions, the Securities of such series, other than Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by any one of the following: its Chairman,
Chief Executive Officer, its President or one of its Vice Presidents, and
attested by one of its Vice Presidents or its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities or coupons
may be manual or facsimile.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the
<PAGE> 38
28
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
together with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and make available for delivery such Securities;
PROVIDED, HOWEVER, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and PROVIDED FURTHER that, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in Exhibit B-1 to this Indenture, dated no earlier than 15 days prior
to the earlier of the date on which such Bearer Security is delivered and the
date on which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 305, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary Global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section 307,
the Trustee shall not authenticate and make available for delivery any Bearer
Security unless all appurtenant coupons for interest then matured have been
detached and cancelled. If not all the Securities of any series are to be issued
at one time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and determining
terms of particular Securities of such series such as interest rate, stated
maturity, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
<PAGE> 39
29
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for authentication
in accordance with this Indenture, authenticated and made available for
delivery by the Trustee in accordance with this Indenture and issued by
the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights, to general equitable principles and
to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities and any
coupons;
(d) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities, any coupons and of the
supplemental indentures, if any, have been complied with and that
authentication and delivery of such Securities and any coupons and the
execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary corporate
action with respect to such issuance; and
(f) that the issuance of such Securities and any coupons will
not contravene the articles of incorporation or by-laws of the Company
or result in any violation of any of the terms or provisions of any law
or regulation or of any indenture, mortgage or other agreement known to
such Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if not all the Securities of any series are to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to the preceding two paragraphs
prior to or at the time of issuance of each Security, but such documents shall
be delivered prior to or at the time of issuance of the first Security of such
series.
The Trustee shall not be required to authenticate and make
available for delivery any such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
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30
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 311 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. BOOK-ENTRY SECURITIES.
(a) The Securities of a series may be issuable in whole or in
part in the form of one or more Global Securities ("Book-Entry Securities")
deposited with, or on behalf of, a Depository (the "Depository"). In the case of
Book-Entry Securities, one or more Global Securities will be issued in a
denomination or aggregate denomination equal to the portion of the aggregate
principal amount of Outstanding Securities of the series to be represented by
such Global Security or Global Securities. Unless otherwise provided as
contemplated by Section 301, the additional provisions set forth in this Section
304 shall apply to Book-Entry Securities.
(b) Book-Entry Securities will be deposited with, or on behalf
of, the Depository, and registered in the name of the Depository's nominee, for
credit to the respective accounts of institutions that have accounts with the
Depository or its nominee ("Participants"); provided that Book-Entry Securities
purchased by persons outside the United States may be credited to or through
accounts maintained at the Depository by or on behalf of Euroclear or Cedel. The
accounts to be credited will be designated by the underwriters or agents of such
Securities or, if such Securities are offered and sold directly by the Company,
by the Company. Ownership of beneficial interests in Book-Entry Securities will
be limited to Persons that may hold interests through Participants and will be
shown on records maintained by the Depository or its nominee for such Book-Entry
Security.
Participants shall have no rights under this Indenture or any
indenture supplemental hereto with respect to any Book-Entry Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Book-Entry Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Book-Entry Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing in this Indenture or any such indenture supplemental shall prevent the
<PAGE> 41
31
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Participants, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.
(c) Transfers of Book-Entry Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Book-Entry Securities
may be transferred or exchanged for Bearer Securities only if (i) the Depository
advises the Trustee in writing that it is no longer willing or able to discharge
properly its responsibilities with respect to such Book-Entry Security and it is
unable to locate a qualified successor, (ii) the Company, at its option, elects
to terminate the book-entry system by executing and delivering to the Trustee
and the Depository a notice to such effect, or (iii) there shall have occurred
and be continuing a Default or Event of Default with respect to the Securities
represented by such Book-Entry Security.
(d) In connection with any transfer or exchange of a portion
of the beneficial interest in any Book-Entry Security to beneficial owners
pursuant to paragraph (c) above, the Security Registrar shall (if one or more
Bearer Securities are to be issued) reflect on its books and records the date
and a decrease in the principal amount of the Book-Entry Security in an amount
equal to the principal amount of the beneficial interest in the Book-Entry
Security to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Bearer Securities of like tenor and
principal amount of authorized denominations.
(e) In connection with the transfer of Book-Entry Securities
as an entirety to beneficial owners pursuant to paragraph (c) above, the
Book-Entry Securities shall be deemed to be surrendered to the Trustee for
cancellation and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depository in exchange
for its beneficial interest in the Book-Entry Securities, an equal aggregate
principal amount of Bearer Securities of like tenor of authorized denominations.
(f) The Holder of any Book-Entry Security may grant proxies
and otherwise authorize any person, including Participants and Persons that may
hold interests through Participants, to take any action which a Holder is
entitled to take under the applicable Indenture or the Securities.
SECTION 305. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are typewritten, printed,
lithographed, engraved or otherwise produced by any combination of these
methods, in any authorized denomination, substantially of the tenor of the
<PAGE> 42
32
definitive Securities in lieu of which they are issued, in registered form or,
if authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form that
are not issued as Book-Entry Securities as provided in Section 304 (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; PROVIDED, HOWEVER, that no Bearer Security shall be
delivered in exchange for a temporary Registered Security; and PROVIDED FURTHER
that a Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Until
so exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
If temporary Securities of any series are issued in global
form (other than Securities issued as Book-Entry Securities as provided in
Section 304), any such temporary Global Security shall, unless otherwise
provided therein, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of Euroclear and Cedel,
for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
Global Security that is not issued as a Book-Entry Security as provided in
Section 304 (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or after
the Exchange Date such temporary Global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary Global Security to be
exchanged. The definitive
<PAGE> 43
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Securities to be delivered in exchange for any such temporary Global Security
shall be in bearer form, registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; PROVIDED, HOWEVER, that, unless
otherwise specified in such temporary Global Security, upon such presentation by
the Common Depositary, such temporary Global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary Global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Cedel as to the portion of such temporary Global Security held for its
account then to be exchanged, each in the form set forth in Exhibit B-2 to this
Indenture (or in such other form as may be established pursuant to Section 301);
and PROVIDED FURTHER that Bearer Securities shall be delivered in exchange for a
portion of a temporary Global Security only in compliance with the requirements
of Section 303.
Unless otherwise specified in such temporary Global Security
that is not issued as a Book-Entry Security as provided in Section 304, the
interest of a beneficial owner of Securities of a series in a temporary Global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or Cedel, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or Cedel, as the case may be, a certificate in the
form set forth in Exhibit B-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and Cedel, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or Cedel.
Bearer Securities in bearer form to be delivered in exchange for any portion of
a temporary Global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series, including temporary Global Securities (whether or not
issued as Book-Entry Securities as provided in Section 304), shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
301, interest payable on a temporary Global Security (other than Securities
issued as Book-Entry Securities as provided in Section 304) on an Interest
Payment Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euroclear and Cedel on such Interest Payment
Date upon delivery by Euroclear and Cedel to the Trustee of a certificate or
certificates in the form set forth in Exhibit B-2 to this Indenture (or in such
other form as may be established pursuant to
<PAGE> 44
34
Section 301), for credit without further interest thereon on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global Security on such Interest Payment
Date and who have each delivered to Euroclear or Cedel, as the case may be, a
certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in the form set forth in Exhibit B-1 to
this Indenture (or in such other form as may be established pursuant to Section
301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section and of the third
paragraph of Section 303 of this Indenture and the interests of the Persons who
are the beneficial owners of the temporary Global Security with respect to which
such certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of certification
if such date occurs after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments
of principal (or premium, if any) or interest, if any, owing with respect to a
beneficial interest in a temporary Global Security will be made unless and until
such interest in such temporary Global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
Cedel and not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company in accordance with Section 1003.
SECTION 306. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register for each series of Securities (the registers
maintained in such office of the Trustee and in any other office or agency
designated pursuant to Section 1002 being herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Trustee is hereby
initially appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Except as otherwise described in this Article Three, upon
surrender for registration of transfer of any Registered Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series, in each case, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series, of
any authorized denominations and of a like aggregate principal amount, upon
surrender of the Registered Securities to be exchanged at such
<PAGE> 45
35
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301 or Section 304, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denomination and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
any such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; PROVIDED, HOWEVER, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive, and the
Trustee shall cancel the Bearer Securities so transferred. In the case of an
exchange of Bearer Securities for an interest in a Book-Entry
<PAGE> 46
36
Security, the Security Registrar shall reflect on the Register the date and an
increase in the principal amount of the Bearer Securities to be transferred, and
the Trustee shall cancel the Bearer Securities so transferred.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent Global Security (other than
Securities issued as Book-Entry Securities as provided in Section 304) shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent Global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent Global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent Global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such permanent
Global Security shall be surrendered by the Common Depositary or such other
depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of such
permanent Global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent Global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301, shall be in
the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; PROVIDED,
HOWEVER, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange is
requested may be among those selected for redemption; and PROVIDED FURTHER that
no Bearer Security delivered in exchange for a portion of a permanent Global
Security shall be mailed or otherwise delivered to any location in the United
States. If a Registered Security is issued in exchange for any portion of a
permanent Global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent Global
Security is payable in accordance with the provisions of this Indenture.
<PAGE> 47
37
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to pay all documentary, stamp, similar issue or transfer taxes or
other governmental charges that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 305, 906, 1107 or 1405 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the selection for redemption
of Securities of that series under Section 1103 or 1303 and ending at the close
of business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B)
if Securities of the series are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if Securities of the
series are also issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption, or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor; PROVIDED that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be
so repaid.
SECTION 307. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee together with, in proper
cases, such security or indemnity as may be required by the Company or the
Trustee to save each of them and any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any,
<PAGE> 48
38
appertaining to the surrendered Security, or, in case any such mutilated
Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security,
pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security for which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon; PROVIDED, HOWEVER, that payment of
principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charges that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Security or in exchange for a Security to which a mutilated, destroyed,
lost or stolen coupon appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Security and its coupons, if any, or the mutilated, destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture
<PAGE> 49
39
equally and proportionately with any and all other Securities of that series and
their coupons, if any, duly issued hereunder.
The provisions of this Section 307 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED;
OPTIONAL INTEREST RESET.
(a) Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest, if any, on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; PROVIDED, HOWEVER,
that each installment of interest, if any, on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 310,
to the address of such Person as it appears on the Security Register or (ii)
transfer to an account located in the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account located
outside the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301,
every permanent Global Security (other than Book-Entry Securities issued as
provided in Section 304) will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and Cedel with respect
to that portion of such permanent Global Security held for its account by the
Common Depositary, for the purpose of permitting each of Euroclear and Cedel to
credit the interest, if any, received by it in respect of such permanent Global
Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the extent
lawful) at the rate specified in the Securities of such series (such defaulted
interest and, if applicable, interest thereon herein collectively called
"Defaulted Interest") may be paid by the Company, at its election in each case,
as provided in Subsection (1) or (2) below:
<PAGE> 50
40
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections 313(b),
313(d) and 313(e)) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this Subsection provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given in the manner provided in Section 106, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so given, such Defaulted Interest shall be paid to the
Persons in whose name the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Subsection (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
(b) The provisions of this Section 308(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at least
50 but not more than 60 days prior to an
<PAGE> 51
41
Optional Reset Date for such Note, which such notice shall contain such
information as may be required by the Trustee to transmit the Reset Notice as
hereinafter defined). Not later than 40 days prior to each Optional Reset Date,
the Trustee shall transmit, in the manner provided for in Section 106, to the
Holder of any such Security a notice (the "Reset Notice") indicating whether the
Company has elected to reset the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable), and if so (i)
such new interest rate (or such new spread or spread multiplier, if applicable)
and (ii) the provisions, if any, for redemption during the period from such
Optional Reset Date to the next Optional Reset Date or if there is no such next
Optional Reset Date, to the Stated Maturity Date of such Security (each such
period a "Subsequent Interest Period"), including the date or dates on which or
the period or periods during which and the price or prices at which such
redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Fourteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 306, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
<PAGE> 52
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SECTION 309. OPTIONAL EXTENSION OF STATED MATURITY.
The provisions of this Section 309 may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The Stated Maturity of any Security of such series may be extended at the option
of the Company for the period or periods specified on the face of such Security
(each an "Extension Period") up to but not beyond the date (the "Final
Maturity") set forth on the face of such Security. The Company may exercise such
option with respect to any Security by notifying the Trustee of such exercise at
least 50 but not more than 60 days prior to the Stated Maturity of such Security
in effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the Company
on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Maturity thereof, the
Holder must follow the procedures set forth in Article Fourteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 310. PERSONS DEEMED OWNERS.
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Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Sections 306 and
308) interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupons be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such Global Security or impair, as between such depositary and owners
of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such Global Security.
SECTION 311. CANCELLATION.
All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Securities and coupons so delivered to the Trustee shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition
<PAGE> 54
44
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures, unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 312. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
with respect to any Securities, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 313. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF
SECURITIES.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in Dollar. The
provisions of this Section 313 may be modified or superseded with respect to any
Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraph (d) below, to receive payments of principal of (or premium, if any)
or interest, if any, on such Registered Securities in any of the Currencies
which may be designated for such election by delivering to the Trustee a written
election with signature guarantees and in the applicable form established
pursuant to Section 301, not later than the close of business on the Election
Date immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such Currency, such election will remain in effect
for such Holder or any transferee of such Holder until changed by such Holder or
such transferee by written notice to the Trustee (but any such change must be
made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made on
such payment date and no such change of election may be made with respect to
payments to be made on any Registered Security of such series with respect to
which an Event of Default has occurred or with respect to which the Company has
deposited funds pursuant to Article Four or Fifteen or with respect to which a
notice of redemption has been given by the Company or a notice of option to
elect repayment has been sent by such Holder or such transferee). Any Holder of
any such Registered Security who shall not have delivered any such election to
the Trustee not later than the close of business on the applicable Election Date
will be paid the amount due on the
<PAGE> 55
45
applicable payment date in the relevant Currency as provided in Section 313(a).
The Trustee shall notify the Exchange Rate Agent as soon as practicable after
the Election Date of the aggregate principal amount of Registered Securities for
which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in such
Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities of such series shall have elected to be paid in
another Currency as provided in paragraph (b) above. If the election referred to
in paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officers' Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar or Foreign Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (b) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security shall have elected to be paid in a Currency
other than Dollar as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in Dollar.
(e) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(f) The "Dollar Equivalent of the Currency Unit" shall be
determined as specified pursuant to Section 301. "Election Date" shall mean the
date for any series of Registered Securities as specified pursuant to clause
(11) of Section 301 by which the written election referred to in paragraph (b)
above may be made.
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All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such decision
or determination.
Except as otherwise provided pursuant to Section 301, in the
event that the Company determines in good faith that a Conversion Event has
occurred with respect to a Foreign Currency, the Company will immediately give
written notice thereof to the Trustee and to the Exchange Rate Agent (and the
Trustee will promptly thereafter give notice in the manner provided for in
Section 106 to the affected Holders) specifying the Conversion Date. Except as
otherwise provided pursuant to Section 301, in the event the Company so
determines that a Conversion Event has occurred with respect to any currency
unit in which Securities are payable, the Company will immediately give written
notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee
will promptly thereafter give notice in the manner provided for in Section 106
to the affected Holders) specifying the Conversion Date and the Specified Amount
of each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying
and acting upon information received by it from the Company and the Exchange
Rate Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
SECTION 314. APPOINTMENT AND RESIGNATION OF SUCCESSOR
EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and
so long as the Securities of any series may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent. The Company
will cause the Exchange Rate Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to Section 301
for the purpose of determining the applicable rate of exchange and, if
applicable, for the purpose of converting Dollar into the applicable payment
Currency for the payment of principal (and premium, if any) and interest, if
any, pursuant to Section 313.
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(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and the
Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are payable in the same Currency).
SECTION 315. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use) in addition to serial numbers, and, if so, the
Trustee shall use such "CUSIP" numbers in addition to serial numbers in notices
of repurchase as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
repurchase and that reliance may be placed only on the serial or other
identification numbers printed on the Securities, and any such repurchase shall
not be affected by any defect in or omission of such "CUSIP" numbers. The
Company will promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of
further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
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(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 306,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 307, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such Trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in
the Currency in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if
any) and interest, if any, to the date of such deposit (in the
case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606, the
obligations of the Trustee to any Authenticating Agent under Section 612 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
Subsection (1) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee. If the Trustee or Paying Agent is unable to apply
any money or Government Obligations in accordance with Section 401 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture shall be revived and
reinstated as though no deposit had occurred pursuant to Section 401; provided
that if the Company has made any payment of principal of, premium, if any, or
interest on the Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of the Securities to
receive such payment from the money or Government Obligations held by the
Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or government body):
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(1) default in the payment of any interest on any Security
when it becomes due and payable, and continuance of such default for a
period of 30 days;
(2) default in the payment of the principal of (or premium,
if any, on) any Security when due;
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of the Securities of that series and Article
Twelve; or
(4) failure to perform or comply with Article Eight;
(5) default in the performance, or breach, of any covenant or
agreement of the Company contained in this Indenture (other than a
default in the performance, or breach, of a covenant or agreement that
is specifically dealt with elsewhere herein), and continuance of such
default or breach for a period of 60 days after written notice has been
given to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding;
(6) (i) the occurrence of an event of default under any
mortgage, bond, indenture, loan agreement or other document evidencing
an issue of Debt of the Company or any Restricted Subsidiary, which
issue has an aggregate outstanding principal amount of not less than
$5,000,000, and such default has resulted in such Debt becoming,
whether by declaration or otherwise, due and payable prior to the date
on which it would otherwise become due and payable or (ii) a default in
any payment when due at final maturity of any such Debt;
(7) failure by the Company or any of its Restricted
Subsidiaries to pay one or more final judgments the uninsured portion
of which exceeds in the aggregate $5,000,000, which judgment or
judgments are not paid, discharged or stayed for a period of 60 days;
(8) a court having jurisdiction in the premises enters a
decree or order for (i) relief in respect of the Company or any
Restricted Subsidiary in an involuntary case under any applicable
Bankruptcy Law now or hereafter in effect, (ii) appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or any Restricted Subsidiary or for all
or substantially all of the property and assets of the Company or any
Restricted Subsidiary or (iii) the winding up or liquidation of the
affairs of the Company or any Restricted Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
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(9) the Company or any Restricted Subsidiary (i) commences a
voluntary case under any applicable Bankruptcy Law now or hereafter in
effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment
of or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or any
Restricted Subsidiary or for all or substantially all of the property
and assets of the Company or any Restricted Subsidiary or (iii) effects
any general assignment for the benefit of creditors.
(10) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default (other than as specified in Section
501(8) or (9)) occurs and is continuing, the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of any series then
outstanding may, and the Trustee at the request of such Holders shall, declare
the principal of all of the outstanding Securities of such series immediately
due and payable, by a notice in writing to the Company (and to the Trustee if
given by the Holders) and, if the Credit Facility is in effect, to the Credit
Facility Agent and, upon any such declaration, such principal shall become due
and payable immediately. If an Event of Default specified in Section 501(8) or
(9) above occurs and is continuing, then such principal shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder of Securities.
At any time after a declaration of acceleration under this
Indenture, but before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of the outstanding Securities, by written notice to the Company and the Trustee,
may rescind such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) all unpaid principal of (and premium, if any, on)
any outstanding Securities that has become due otherwise than
by such declaration of acceleration and interest thereon at
the rate borne by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and overdue principal
amount at the rate borne by the Securities, and
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(D) all sums paid or advanced by the Trustee under
this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(ii) all Events of Default, other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on the
Securities that have become due solely by such declaration of
acceleration, have been cured or waived.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Stated Maturity or other
maturity thereof,
the Company shall, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, with
interest upon the overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 606.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon the Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Securities,
wherever situated.
If an Event of Default with respect to Securities of any
series (or of all series, as the case may be) occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders by such appropriate judicial proceedings as
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the Trustee shall deem most effectual to protect and enforce such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy subject, however, to Section 513. No recovery of any
such judgment upon any property of the Company shall affect or impair any
rights, powers or remedies of the Trustee or the Holders.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company, upon the Securities or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities, to take such other actions (including
participating as a member, voting or otherwise, of any official
committee of creditors appointed in such matter) and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of such Holders, vote for the election
of a trustee in bankruptcy or other similar official.
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SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Company or any other obligor on the Securities,
as their interests may appear or as a court of competent jurisdiction
may direct, provided that all sums due and owing to the Holders and the
Trustee have been paid in full as required by this Indenture.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
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(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 30-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders of Securities of the same series.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 308) interest, if any, on, such Security or payment of such
coupon on the respective Stated Maturities expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in Section 307, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
With respect to the Securities of any series, the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, provided that in each case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or expose the Trustee to personal liability;
(2) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders not
consenting; and
(3) subject to the provisions of the TIA Section 315, the
Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 502, the Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
Default or Event of Default under this Indenture, except a default in the
payment of the principal of (and premium, if any) or interest on any Note, or in
respect of a
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covenant or provision that under this Indenture cannot be modified or amended
without the consent of the Holder of each Note outstanding.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of
Securities of any series by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on Securities of any series on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
or after the Redemption Date); provided that neither this Section 514 nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
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THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs with respect to the
Securities of any series and is continuing and is known to the Trustee, the
Trustee shall mail to all Holders of the Securities notice of the Default or
Event of Default within 90 days after the occurrence thereof. Except in the case
of a Default or an Event of Default in payment of principal of (and premium, if
any, on) or interest on any Securities, the Trustee may withhold the notice to
the Holders if a committee of its trust officers in good faith determines that
withholding such notice is in the interests of the Holders.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, request and rely upon an
Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and
any written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series pursuant
to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
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(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture; and the Trustee shall not be deemed to have
notice of any Default or Event of Default, except in the case of an
event of default involving failures by the Company to pay principal,
premium, if any, or interest on the Securities, unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Company, the Securities or this Indenture.
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES.
The recitals contained herein and in the Securities, except
for the Trustee's certificates of authentication, and in any coupons shall be
taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons. The Trustee shall not be accountable
for the use or application by the Company of Securities or the proceeds thereof,
except that the Trustee represents that it is duly authorized to execute and
deliver this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements to be made by it in a Statement of Eligibility
on Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES.
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The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent. The
Trustee is permitted to engage in other transactions; provided however, that if
it acquires any conflicting interest it must eliminate such conflict or resign.
SECTION 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation
as shall be agreed to in writing between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel and costs and expenses of collection), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor
Trustee (and their respective directors, officers, employees and
agents) for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes based on
the income of the Trustee) incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses ,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of the Indenture and the resignation or removal of the Trustee. As
security for the performance of the obligations of
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the Company under this Section 606, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if any)
or interest on particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(8) or (9), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation for such services are intended to constitute expenses of
administration under Bankruptcy Law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
CONFLICTING INTERESTS.
There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and which shall have an
office in The City of New York, and shall have a combined capital and surplus of
at least $100,000,000. If the Trustee does not have an office in The City of New
York, the Trustee may appoint an agent in The City of New York reasonably
acceptable to the Company to conduct any activities which the Trustee may be
required under this Indenture to conduct in The City of New York. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section 607,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 607, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the removed Trustee may petition a court of competent
jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
the Holder of any Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with Section 609, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If within 30 days of resignation or
removal of the Trustee, no successor Trustee with respect
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to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to the Holders of Securities of such series in the manner provided for in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; PROVIDED, HOWEVER, that the
retiring Trustee shall continue to be entitled to the benefit of Section 606;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered
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by any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities. In case any of the Securities shall not have been authenticated by
such predecessor Trustee, any successor Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of the successor
Trustee. In all such cases such certificates shall have the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee; PROVIDED, HOWEVER, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
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SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series and the Trustee shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, PROVIDED such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be
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acceptable to the Company and shall give written notice of such appointment to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, in the manner provided for in Section 106. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By __________________________
as Authenticating Agent
By __________________________
Authorized Signatory
SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor under the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that none of the
Company or the Trustee or any agent of either of them shall be held accountable
by reason of the disclosure of any information as to the names and addresses of
the Holders in accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312.
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities pursuant to this Indenture,
the Trustee shall transmit to the Holders of Securities, in the manner and to
the extent provided in TIA Section 313(c), a brief report dated as of such May
15 if required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of such
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, in the manner
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and to the extent provided in TIA Section 313(c), such summaries of
any information, documents and reports required to be filed by the
Company pursuant to Subsections (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge with or into
any other Person or, directly or indirectly, convey, transfer or lease its
properties and assets substantially as an entirety to any Person or Persons,
unless:
(a) either (i) the Company is the surviving corporation or
(ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person that
acquires by sale, assignment, transfer, lease or other disposition the
properties and assets of the Company substantially as an entirety (the
"Surviving Entity") (A) is a corporation, partnership or trust
organized and validly existing under the laws of the United States, any
state thereof or the District of Columbia and (B) expressly assumes, by
a supplemental indenture in form satisfactory to the Trustee, all of
the Company's obligations under this Indenture and the Securities;
(b) immediately after giving effect to such transaction, and
after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing; and
(c) the Company delivers, or causes to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee,
an Officers' Certificate and an Opinion of Counsel, each stating that
such transaction complies with the requirements of this Indenture.
SECTION 802. SUCCESSOR SUBSTITUTED.
In the event of any transaction described in and complying
with the conditions listed in Section 801 in which the Company is not the
continuing obligor under this Indenture, the Surviving Entity shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture, and thereafter the Company shall, except in the case of a
lease, be discharged from all its obligations and covenants under this Indenture
and the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities and any related coupons
(and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are being included
solely for the benefit of such series) or to surrender any right or
power herein or in the Securities conferred upon the Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; PROVIDED that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
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(6) to secure the Securities, if the Company so elects; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 609(b); or
(9) to close this Indenture with respect to the authentication
and delivery of additional series of Securities; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture; PROVIDED that such
action shall not adversely affect the interests of the Holders of
Securities of any series and any related coupons in any material
respect; or
(11) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1502 and 1503; PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect; or
(12) to make any other change that does not adversely affect
the rights of any Holder.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into one or more indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture which affect
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture amendment or waiver shall, without the
consent of the Holder of each Outstanding Security of such series affected
thereby:
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(1) change the Stated Maturity of the principal of (or
premium, if any) or any installment of interest on any Security of such
series, or reduce the principal amount thereof (or premium, if any) or
the rate of interest, if any, thereon, or reduce the amount of the
principal of an Original Issue Discount Security of such series that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof provable
in bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of any Holder of any Security of such series,
or change any Place of Payment where, or the Currency in which, any
Security of such series or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be), or adversely
affect any right to convert or exchange any Security as may be provided
pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of such series the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture which affect such series or certain
defaults applicable to such series hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of Section
1604 for quorum or voting with respect to Securities of such series, or
(3) modify any of the provisions of this Indenture relating to
the subordination of the Securities of any series in a manner adverse
to the Holders of such Outstanding Securities, or
(4) modify any of the provisions of this Section 902, Section
513 or Section 1014, except to increase any such percentage or to
provide that certain other provisions of this Indenture which affect
such series cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby of such series.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of
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Securities of such series, shall not affect the rights under this Indenture of
the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to TIA Section 315(a) through 315(d) and Section 602
hereof) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
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Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND
INTEREST.
The Company covenants and agrees for the benefit of the
Holders of each series of Securities and any related coupons that it will duly
and punctually pay the principal of (and premium, if any) and interest, if any,
on the Securities of that series in accordance with the terms of the Securities,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities,
the Company will maintain (A) in The City of New York, an office or agency where
any Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise)
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(B) subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment; PROVIDED, HOWEVER, that, if the Securities of that
series are listed on any stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in any required city located outside the
United States so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible and exchangeable
may be surrendered for conversion or exchange, as applicable and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served.
The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of any
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, in London, and the Company hereby
appoints the same as its agents to receive such respective presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; PROVIDED,
HOWEVER, that, if the Securities of a series are payable in Dollars, payment of
principal of (and premium, if any) and interest, if any, on any Bearer Security
shall be made at the office of the Company's Paying Agent in The City of New
York, if (but only if) payment in Dollars of the full amount of such principal,
premium or interest, as the case may be, at all offices or agencies outside the
United States maintained for such purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind any such designation; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or
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agency. Unless otherwise specified with respect to any Securities as
contemplated by Section 301 with respect to a series of Securities, the Company
hereby designates as a Place of Payment for each series of Securities the office
or agency of the Company in the Borough of Manhattan, The City of New York, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series may be
payable in a Currency other than Dollars, or so long as it is required under any
other provision of the Indenture, then the Company will maintain with respect to
each such series of Securities, or as so required, at least one Exchange Rate
Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN
TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 313(b), 313(d) and 313(e)) sufficient to pay the principal
of (or premium, if any) or interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, prior to or on each
due date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the
Trustee) for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) and interest, if any, on Securities of such
series in trust for the benefit of the
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Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal of (or premium, if any) or interest, if any,
on the Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (or premium, if any) or interest, if
any, on any Security of any series, or any coupon appertaining thereto, and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security or coupon shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Restricted Subsidiary and the corporate
rights (charter and statutory), licenses and franchises of the Company and each
Restricted Subsidiary; provided, however, that the Company shall not be required
to preserve any such existence (except of the Company), right, license or
franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer
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desirable in the conduct of the business of the Company and each of its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not, and
shall not be, disadvantageous in any material respect to the Holders.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Restricted Subsidiary or upon the income, profits or property of the Company or
any Restricted Subsidiary and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a material liability or lien
upon the property of the Company or any Restricted Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which appropriate reserves, if necessary (in the good faith
judgment of management of the Company), are being maintained in accordance with
GAAP.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company shall cause all material properties owned by the
Company or any Restricted Subsidiary or used or held for use in the conduct of
its business or the business of any Restricted Subsidiary to be maintained and
kept in normal condition, repair and working order and shall cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly conducted at all
times; provided, however, that nothing in this Section shall prevent the Company
or any of its Restricted Subsidiaries from discontinuing the maintenance of any
of such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Restricted
Subsidiary and not adverse in any material respect to the Holders.
SECTION 1007. INSURANCE.
To the extent available at commercially reasonable rates, the
Company shall maintain, and shall cause each of its Restricted Subsidiaries to
maintain, insurance with responsible carriers against such risks and in such
amounts, and with such deductibles, retentions, self-insured amounts and
co-insurance provisions, as are customarily carried by similar businesses, of
similar size, including professional and general liability, property and
casualty loss, workers' compensation and interruption of business insurance.
SECTION 1008. OTHER COVENANTS.
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The applicable prospectus supplement will describe any
material covenants in respect of a series of Securities.
SECTION 1009. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year ending after the date hereof, a brief certificate of
its principal executive officer, principal financial officer or principal
accounting officer stating whether, to such officer's knowledge, the Company is
in compliance with all covenants and conditions to be complied with by it under
this Indenture. For purposes of this Section 1009, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1103. In the
case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for
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redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions of the principal
of Securities of such series; PROVIDED, HOWEVER, that no such partial redemption
shall reduce the portion of the principal amount of a Security not redeemed to
less than the minimum authorized denomination for Securities of such series
established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301,
notice of redemption shall be given in the manner provided for in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall identify the Securities
(including CUSIP number, if any) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to
the Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and
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payable upon each such Security, or the portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and
after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest,
if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price unless security or indemnity satisfactory to
the Company, the Trustee and any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on such Redemption Date pursuant to Section 306
or otherwise, the last date, as determined by the Company, on which
such exchanges may be made.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m. on any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
313(b), 313(d) and 313(e)) sufficient to pay the Redemption Price of, and
accrued interest, if any, on, all the Securities which are to be redeemed on
that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified in the Currency in which the
Securities of such series are payable (except as
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otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 313(b), 313(d) and 313(e))
(together with accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest, if any) such Securities shall, if the
same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and PROVIDED FURTHER that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
308.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part (pursuant to
the provisions of this Article or of Article Thirteen) shall be surrendered at a
Place of Payment therefor (with, if
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the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities of the same series, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 1201. SECURITIES SUBORDINATED TO SENIOR DEBT.
Except as otherwise specified as contemplated by Section 301,
the following provisions shall apply to Securities of each series.
The Company covenants and agrees, and each Holder of a
Security of any series or of any coupon appertaining thereto, by his acceptance
of Securities of any series, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article Twelve, the indebtedness
represented by the Securities of such series and the payment of the principal of
(and premium, if any) and interest on each and all of the Securities of such
series (but not amounts owing to the Trustee by the Company pursuant to Section
606 hereof) are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Debt.
This Article Twelve shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Debt, and such provisions are made for the benefit of the holders
of Senior Debt, and such holders are made obligees hereunder and they and/or
each of them may enforce such provisions.
SECTION 1202. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of any payment or distribution of assets of the
Company for the benefit of creditors, marshaling of assets or any bankruptcy,
insolvency or similar proceedings of the Company (each such event herein
sometimes referred to as a "Proceeding"), then except in connection with the
consolidation or merger of the Company or its liquidation or dissolution
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety, upon the terms and conditions described in Article
Eight, the holders of Senior Debt shall first be entitled to receive payment in
full, in cash or cash equivalents, of all amounts due or
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to become due on or in respect of such Senior Debt before the Holders of any
Security of such series or of any coupon appertaining thereto are entitled to
receive any payment of principal of , and premium, if any, or interest on the
Securities or on account of the purchase or redemption or other acquisition of
Securities by the Company ("Securities Payment"), and the holders of Senior Debt
shall be entitled to receive, for application to the payment thereof, any
payment or distribution of any kind or character, whether in cash, property or
securities which may be payable or deliverable in respect of the Securities in
any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section 1202, the Trustee or the Holder of any Security shall have received
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, before all the Senior Debt is paid in
full, then such payment or distribution, except for amounts subject to the claim
granted to the Trustee in Section 606 hereof, shall be held in trust for the
holders of Senior Debt and shall be paid over or delivered forthwith to the
trustee in bankruptcy or other Person making payment or distribution of assets
of the Company for application to the payment of all the Senior Debt remaining
unpaid, to the extent necessary to pay all the Senior Debt in full, after giving
effect to any concurrent payment or distribution to or for the holders of the
Senior Debt.
For purposes of this Article Twelve only, the words "any
payment or distribution of any kind or character, cash, property or securities"
shall not be deemed to include a payment or distribution of equity or
subordinated securities of the Company provided for by a plan of reorganization
or readjustment or of any other corporation provided for by such plan of
reorganization or readjustment that, in the case of subordinated securities, are
subordinated in right of payment to all then outstanding Senior Debt to at least
the same extent as the Securities, as the case may be, are so subordinated as
provided in this Article Twelve.
SECTION 1203. NO PAYMENT WHEN CERTAIN SENIOR DEBT IN DEFAULT.
In the event that any Senior Payment Default (as defined
below) shall have occurred and be continuing, then no Securities Payment shall
be made unless and until such Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due and payable in
respect of the Specified Senior Debt or other obligations that are the subject
of such Senior Payment Default shall have been paid in full. For purposes
hereof, "Senior Payment Default" means any default in the payment of principal
of (or premium, if any), or interest on, Specified Senior Debt, the payment of
commitment, facility or other fees, letter of credit fees or agency fees under
the Credit Facility, or payments with respect to letter of credit reimbursement
arrangements with the Credit Facility Agent, when due, whether at the Stated
Maturity of any such payment or by declaration of acceleration, call for
redemption or otherwise.
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In the event that any Senior Nonmonetary Default (as defined
below) shall have occurred and be continuing, then, upon the receipt by the
Company and the Trustee of written notice of such Senior Nonmonetary Default
from the Credit Facility Agent or from an authorized Person on behalf of any
holder of Specified Senior Debt, no Securities Payment shall be made during the
period (the "Payment Blockage Period") commencing on the date of receipt of such
written notice (the "Blockage Notice") and ending on the earliest of (i) the
179th day after the date of such receipt of the Blockage Notice (the "Initial
Period"), (ii) the date, if any, on which the Specified Senior Debt to which
such default relates is discharged or such default is waived or otherwise cured
and (iii) the date, if any, on which such Payment Blockage Period shall have
been terminated by written notice to the Company or the Trustee from the Credit
Facility Agent or from the Person who gave the Blockage Notice. Any number of
additional Payment Blockage Periods may be commenced during the Initial Period;
provided, however, that no such additional Payment Blockage Periods shall extend
beyond the Initial Period. After the expiration of the Initial Period, no
Payment Blockage Period may be commenced until at least 181 consecutive days
shall have elapsed from the last day of the Initial Period. No Senior
Nonmonetary Default that existed or was continuing on the date of commencement
of any Payment Blockage Period with respect to the Specified Senior Debt
initiating such Payment Blockage Period shall be, or be made, the basis for the
commencement of a subsequent Payment Blockage Period unless such Senior
Nonmonetary Default shall have been cured or waived for a period of not less
than 90 consecutive days. For purposes hereof, "Senior Nonmonetary Default"
means the occurrence or existence of any event, circumstance, condition or state
of facts that, by the terms of any instrument pursuant to which any Specified
Senior Debt is outstanding, permits one or more holders of such Specified Senior
Debt (or a trustee or agent on behalf of the holders thereof) to declare such
Specified Senior Debt due and payable prior to the date on which it would
otherwise become due and payable, other than a Senior Payment Default.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section 1203, then except for the amounts subject to the
claim granted to the Trustee in Section 606 such payment shall be held in trust
for the holders of Senior Debt and shall be paid over and delivered forthwith to
the holders of Senior Debt remaining unpaid, to the extent necessary to pay in
full all the Senior Debt.
SECTION 1204. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in any of the Securities shall, at any time except during the
pendency of any Proceeding referred to in Section 1202 or under the conditions
described in Section 1203, prevent (a) the Company from making Securities
Payments, or (b) the application by the Trustee of any money deposited with it
hereunder to Securities Payments or the retention of such payment by the
Holders.
SECTION 1205. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
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Subject to the payment in full of all Senior Debt, the rights
of the Holders of the Securities shall be subrogated to the rights of the
holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article Twelve, and no payments over pursuant to the provisions of this Article
Twelve to the holders of Senior Debt by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders of Senior
Debt and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt. Neither the
Holders of the Securities nor the Trustee shall have any claim against the
holders of the Senior Debt or the Credit Facility Agent for any impairment of
the subrogation rights herein granted arising out of any release of Liens
securing the Senior Debt..
SECTION 1206. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article Twelve are and are intended
solely for the purpose of defining the relative rights of the Holders on the one
hand and the holders of Senior Debt on the other hand. Nothing contained in this
Article Twelve or elsewhere in this Indenture or in the Securities is intended
to or shall (a) impair, as among the Company, its creditors other than holders
of Senior Debt and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional (and which, subject to the rights under this
Article Twelve of the holders of Senior Debt, is intended to rank equally with
all other general obligations of the Company) to pay to the Holders of the
Securities the principal of (and premium, if any) and interest on the Securities
as and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than the holders of Senior
Debt; or (c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Twelve of the
holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder. The holders of the Senior
Debt and the Credit Facility Agent, as the case may be, shall be entitled to
enforce the provisions of this Article Twelve against the Company, the Holders
of the Securities and the Trustee.
SECTION 1207. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the
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subordination provided in this Article Twelve and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 1208. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such Holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt, as the case may be, may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Trustee or
the Holders of the Securities and without impairing or releasing the
subordination provided in this Article Twelve or the obligations hereunder of
the Holders of the Securities to the holders of Senior Debt, as the case may be,
do any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Debt, as the
case may be, or otherwise amend or supplement in any manner Senior Debt, as the
case may be, or any instrument evidencing the same or any agreement under which
Senior Debt, as the case may be, is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Debt; (iii) release any Person liable in any manner for the collection of Senior
Debt; and (iv) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 1209. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities and of any subsequent cure or
waiver thereof. Notwithstanding the provisions of this Article Twelve or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from the Company or a holder
of Senior Debt or from any trustee or agent therefor; and, prior to the receipt
of any such written notice, the Trustee, subject to the provisions of the Trust
Indenture Act, shall be entitled in all respects to assume that no such facts
exist.
Subject to the provisions of the Trust Indenture Act, the
Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Debt (or a trustee or agent
therefor) to establish that such notice has been given by a
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holder of Senior Debt (or a trustee or agent therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Debt, as the case may be, to
participate in any payment or distribution pursuant to this Article Twelve, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt, as the case may be,
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Twelve, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 1210. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATION AGENT.
Upon any payment or distribution of assets of the Company
referred to in this Article Twelve, the Trustee, subject to the provisions of
the Trust Indenture Act, and the Holders of the Securities shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
a Proceeding, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Twelve.
SECTION 1211. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
DEBT.
Except to the extent of its obligations under the penultimate
paragraph of Section 1202 and the last paragraph of Section 1203, the Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and
shall not be liable to any such holders if it shall in good faith mistakenly pay
over or distribute to Holders of Securities or to the Company or to any other
Person cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article Twelve or otherwise. The Trustee's duties
with respect to holders of Senior Debt are limited to those specifically set
forth in this Indenture, and no implied covenants or obligations shall be
construed by any provision hereof.
SECTION 1212. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Twelve with respect to any Senior Debt
which may at any time be held by it, to the same extent as any other holder of
Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
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Nothing in this Article Twelve shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 606.
SECTION 1213. APPLICABILITY TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Twelve shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article Twelve in addition to or in place of the Trustee;
provided, however, that this Section 1213 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1214. DEFEASANCE OF THIS ARTICLE TWELVE.
The subordination of the Securities provided by this Article
Twelve is expressly made subject to the provisions for Legal Defeasance or
Covenant Defeasance in Article Twelve hereof and, anything herein to the
contrary notwithstanding, upon the effectiveness of any such Legal Defeasance or
Covenant Defeasance, the Securities then outstanding shall thereupon cease to be
subordinated pursuant to this Article Twelve.
SECTION 1215. SUBORDINATION PROVISIONS CONTROLLING.
Notwithstanding anything to the contrary contained in this
Indenture, to the extent that any provision in this Indenture (other than those
contained in Section 101) conflicts with any provision contained in Article
Twelve (including the definitions of certain terms used in Article Twelve) of
this Indenture, the provisions contained in Article Twelve of this Indenture
shall govern and control.
SECTION 1216. ARTICLE TWELVE NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article shall not
be construed as preventing the occurrence of an Event of Default under Section
501. Nothing contained in this Article Twelve shall limit the right of the
Trustee or the Holders of Securities of such series and the coupons, if any,
appertaining thereto, to take any action to accelerate the maturity of the
Securities pursuant to Section 502 or to pursue any rights or remedies
hereunder; PROVIDED that all Senior Debt then or thereafter due or declared to
be due shall first be paid in full before such Holders or the Trustee are
entitled to receive any payment from the Company of principal of, or interest
on, the Securities.
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SECTION 1217. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article shall apply to amounts due to the
Trustee pursuant to Section 606.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 1301. APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any
sinking fund shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any mandatory sinking fund payment may be subject
to reduction as provided in Section 1302. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1302. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
Subject to Section 1303, in lieu of making all or any part of
any mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; PROVIDED, HOWEVER, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
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redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1303. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 313(b), 313(d) and 313(e)) and the portion
thereof, if any, which is to be satisfied by delivering or crediting Securities
of that series pursuant to Section 1302 (which Securities will, if not
previously delivered, accompany such certificate) and whether the Company
intends to exercise its right to make a permitted optional sinking fund payment
with respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 1302 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay
to the Trustee or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) in cash a sum
equal to any interest that will accrue to the date fixed for redemption of
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section 1303.
Notwithstanding the foregoing, with respect to a sinking fund
for any series of Securities, if at any time the amount of cash to be paid into
such sinking fund on the next succeeding sinking fund payment date, together
with any unused balance of any preceding sinking fund payment or payments for
such series, does not exceed in the aggregate $100,000,
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the Trustee, unless requested by the Company, shall not give the next succeeding
notice of the redemption of Securities of such series through the operation of
the sinking fund. Any such unused balance of moneys deposited in such sinking
fund shall be added to the sinking fund payment for such series to be made in
cash on the next succeeding sinking fund payment date or, at the written request
of the Company, shall be applied at any time or from time to time to the
purchase of Securities of such series, by public or private purchase, in the
open market or otherwise, at a purchase price for such Securities (excluding
accrued interest and brokerage commissions, for which the Trustee or any Paying
Agent will be promptly reimbursed by the Company) not in excess of the principal
amount thereof.
ARTICLE FOURTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1401. APPLICABILITY OF ARTICLE.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
SECTION 1402. REPAYMENT OF SECURITIES.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Company covenants
that on or before the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and except,
if applicable, as provided in Sections 313(b), 313(d) and 313(e)) sufficient to
pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest, if any, on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 1403. EXERCISE OF OPTION.
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Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1404. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME
DUE AND PAYABLE.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
PROVIDED, HOWEVER, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and PROVIDED FURTHER that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such Securities,
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or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 308.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1402 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; PROVIDED, HOWEVER, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1405. SECURITIES REPAID IN PART.
Upon surrender of any Registered Security which is to be
repaid in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge
and at the expense of the Company, a new Registered Security or Securities of
the same series, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, the provisions of this Article Fifteen shall apply
to each series of Securities, and the
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Company may, at its option, effect defeasance of the Securities of or within a
series under Section 1502, or covenant defeasance of or within a series under
Section 1503 in accordance with the terms of such Securities and in accordance
with this Article.
SECTION 1502. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any related coupons on the date the conditions
set forth in Section 1504 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1505 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the trust
fund described in Section 1504 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any related coupons when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Fifteen. Subject to compliance
with this Article Fifteen, the Company may exercise its option under this
Section 1502 notwithstanding the prior exercise of its option under Section 1503
with respect to such Securities and any related coupons.
SECTION 1503. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1502 of the option
applicable to this Section 1503 with respect to any Securities of or within a
series, the Company shall be released from its obligations under any covenant
under Article Eight and in Sections 1004 through 1008, and, if specified
pursuant to Section 301, its obligations under any other covenant, with respect
to such Outstanding Securities and any related coupons on and after the date the
conditions set forth in Section 1504 are satisfied (hereinafter, "Covenant
Defeasance"), and such Securities and any related coupons shall thereafter be
deemed to be not "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder (it being understood that such Securities shall
not be deemed Outstanding for financial accounting purposes). For this purpose,
such covenant defeasance means that, with
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respect to such Outstanding Securities and any related coupons, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of reference in any such covenant to any other provision herein or in
any other document and such omission to comply shall not constitute a Default or
an Event of Default under Section 501(5) or Section 501(10) or otherwise, as the
case may be, but, except as specified above, the remainder of this Indenture and
such Securities and any related coupons shall be unaffected thereby. In
addition, upon the Company's exercise under Section 1501 of the option
applicable to Section 1503, Sections 501(5) through (10) shall not constitute
Events of Default.
SECTION 1504. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either
Section 1502 or Section 1503 to any Outstanding Securities of or within a series
and any related coupons:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fifteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any related coupons, (A) money in an
amount, or (B) Government Obligations applicable to such Securities
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment of principal of and
premium, if any, and interest, if any, under such Securities and any
related coupons, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest, if
any, on such Outstanding Securities and any related coupons on the
Stated Maturity (or Redemption Date, if applicable) of such principal
(and premium, if any) or installment of interest, if any, and (ii) any
mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any related coupons on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any related coupons; PROVIDED that
the Trustee shall have been irrevocably instructed to apply such money
or the proceeds of such Government Obligations to said payments with
respect to such Securities and any related coupons. Before such a
deposit, the Company may give to the Trustee, in accordance with
Section 1102 hereof, a notice of its election to redeem all or any
portion of such Outstanding Securities at a future date in accordance
with the terms of the Securities of such series and Article Eleven
hereof,
<PAGE> 106
96
which notice shall be irrevocable. Such irrevocable redemption notice,
if given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be continuing
on the date of such deposit or, insofar as paragraphs (8) and (9) of
Section 501 are concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(3) No event or condition shall exist that, pursuant to the
provisions of Section 1202 or 1203, would prevent the Company from
making payments of the principal of (and premium, if any) or interest
on the Securities on the date of such deposit or at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(4) such defeasance or Covenant Defeasance must not result in
a breach or violation of, or constitute a default under, this Indenture
or any material agreement or instrument to which the Company is a party
or by which it is bound or cause the Trustee or the trust so created to
be subject to the Investment Company Act of 1940, as amended.
(5) In the case of an election under Section 1502, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of execution
of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Outstanding
Securities and any related coupons will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance had not occurred.
(6) In the case of an election under Section 1503, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities and any related coupons
will not recognize income, gain or loss for federal income tax purposes
as a result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(7) In the case of an election under either Section 1502 or
1503, the Company shall represent to the Trustee that the deposit made
by the Company pursuant to its election under Section 1502 or 1503 was
not made by the Company with the intent of
<PAGE> 107
97
preferring the Holders of Securities of any series over other creditors
of the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others.
(8) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations in
connection therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1502 or the covenant defeasance under Section 1503 (as
the case may be) have been complied with.
SECTION 1505. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
1505, the "Trustee") pursuant to Section 1504 in respect of such Outstanding
Securities and any related coupons shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any related
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any related coupons
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, if any, but such money need not be segregated from other
funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust are not subject to Article Twelve.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1504(1) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 313(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 1504(1) has been made in respect of such Security,
or (b) a Conversion Event occurs as contemplated in Section 313(d) or 313(e) or
by the terms of any Security in respect of which the deposit pursuant to Section
1504(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such
<PAGE> 108
98
Security becomes payable as a result of such election or Conversion Event based
on the applicable Market Exchange Rate for such Currency in effect on the third
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1504 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
related coupons.
Anything in this Article Fifteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1504 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1506. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 1505 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1502 or 1503, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1505; PROVIDED, HOWEVER, that if the Company makes any
payment of principal of (or premium, if any) or interest, if any, on any such
Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
<PAGE> 109
99
If Securities of a series are issuable as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 1602. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1601, to be held
at such time and at such place in The City of New York or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided for in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1601, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in The City of New York or in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in paragraph (a)
of this Section.
SECTION 1603. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series shall
be the Person entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1604. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such
<PAGE> 110
100
series; PROVIDED, HOWEVER, that, if any action is to be taken at such meeting
with respect to a consent or waiver which this Indenture expressly provides may
be given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Securities of a series, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1602(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for lack of a quorum the Persons entitled to vote 25% in principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series; PROVIDED, HOWEVER, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1604,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand,
<PAGE> 111
101
authorization, direction, notice, consent, waiver or other action that this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 1605. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1602(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him (determined as
specified in the definition of "Outstanding" in
<PAGE> 112
102
Section 101); PROVIDED, HOWEVER, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such series or
proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1602 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1606. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the Secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1602 and, if
applicable, Section 1604. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
<PAGE> 113
103
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
CITADEL COMMUNICATIONS CORPORATION
By:
------------------------------------
Name:
Title:
THE BANK OF NEW YORK
As Trustee
By:
------------------------------------
Name:
Title:
<PAGE> 114
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Citadel Communications Corporation or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by
<PAGE> 115
A-1-2
you for our account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certificate excepts and does not relate to
[U.S.$]__________ of such interest in the above-captioned Securities in respect
of which we are not able to certify and as to which we understand an exchange
for an interest in a Permanent Global Security or an exchange for and delivery
of definitive Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the
15th day prior to (i) the Exchange
Date or (ii) the relevant Interest
Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
----------------------------------------
(AUTHORIZED SIGNATORY)
Name:
Title:
<PAGE> 116
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that based solely on written certifications
that we have received in writing, by tested telex or by electronic transmission
from each of the persons appearing in our records as persons entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof,
[U.S.$]__________ principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) is owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise Citadel
Communications Corporation or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
<PAGE> 117
A-2-2
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary Global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than
the Exchange Date or the
relevant Interest Payment
Date occurring prior to the
Exchange Date, as applicable]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, BRUSSELS
OFFICE, as Operator of the Euroclear
System]
[Cedel Bank, S.A.]
By
------------------------------------
<PAGE> 1
Exhibit 4.10
================================================================================
[CITADEL COMMUNICATIONS CORPORATION/
CITADEL BROADCASTING COMPANY]
AND
THE BANK OF NEW YORK,
as Trustee
------------------
JUNIOR SUBORDINATED INDENTURE
Dated as of
------------
------------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<TABLE>
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Page
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<S> <C> <C>
SECTION 1.1. Definitions....................................................1
SECTION 1.2. Compliance Certificate and Opinions...........................10
SECTION 1.3. Forms of Documents Delivered to Trustee.......................11
SECTION 1.4. Acts of Holders...............................................11
SECTION 1.5. Notices, Etc. to Trustee and Company..........................13
SECTION 1.6. Notice to Holders; Waiver.....................................14
SECTION 1.7. Conflict with Trust Indenture Act.............................14
SECTION 1.8. Effect of Headings and Table of Contents......................14
SECTION 1.9. Successors and Assigns........................................14
SECTION 1.10. Separability Clause...........................................15
SECTION 1.11. Benefits of Indenture.........................................15
SECTION 1.12. Governing Law.................................................15
SECTION 1.13. Non-Business Days.............................................15
</TABLE>
ARTICLE II
SECURITY FORMS
<TABLE>
<S> <C> <C>
SECTION 2.1. Forms Generally...............................................15
SECTION 2.2. Form of Face of Security......................................16
SECTION 2.3. Form of Reverse of Security...................................19
SECTION 2.4. Additional Provisions Required in Global Security.............22
SECTION 2.5. Form of Trustee's Certificate of Authentication...............22
</TABLE>
ARTICLE III
THE SECURITIES
<TABLE>
<S> <C> <C>
SECTION 3.1. Title and Terms...............................................22
SECTION 3.2. Denominations.................................................25
SECTION 3.3. Execution, Authentication, Delivery and Dating................25
SECTION 3.4. Temporary Securities..........................................27
SECTION 3.5. Global Securities.............................................27
SECTION 3.6. Registration, Transfer and Exchange Generally.................29
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities..............30
SECTION 3.8. Payment of Interest and Additional Interest; Interest
Rights Preserved .............................................30
</TABLE>
-i-
<PAGE> 3
<TABLE>
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<S> <C> <C>
SECTION 3.9. Persons Deemed Owners.........................................32
SECTION 3.10. Cancellation..................................................32
SECTION 3.11. Computation of Interest.......................................32
SECTION 3.12. Deferrals of Interest Payment Dates...........................32
SECTION 3.13. Right of Set-Off..............................................34
SECTION 3.14. Agreed Tax Treatment..........................................34
SECTION 3.15. Shortening and Extension of Stated Maturity...................34
SECTION 3.16. CUSIP Numbers.................................................34
</TABLE>
ARTICLE IV
SATISFACTION AND DISCHARGE
<TABLE>
<S> <C> <C>
SECTION 4.1. Satisfaction and Discharge of Indenture.......................35
SECTION 4.2. Application of Trust Money....................................36
</TABLE>
ARTICLE V
REMEDIES
<TABLE>
<S> <C> <C>
SECTION 5.1. Events of Default.............................................36
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment............37
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee ......................................................38
SECTION 5.4. Trustee May File Proofs of Claim..............................39
SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities....40
SECTION 5.6. Application of Money Collected................................40
SECTION 5.7. Limitation on Suits...........................................40
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities..41
SECTION 5.9. Restoration of Rights and Remedies............................41
SECTION 5.10. Rights and Remedies Cumulative................................42
SECTION 5.11. Delay or Omission Not Waiver..................................42
SECTION 5.12. Control by Holders............................................42
SECTION 5.13. Waiver of Past Defaults.......................................43
SECTION 5.14. Undertaking for Costs.........................................43
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.......................43
</TABLE>
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<PAGE> 4
ARTICLE VI
THE TRUSTEE
<TABLE>
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<S> <C> <C>
SECTION 6.1. Certain Duties and Responsibilities...........................44
SECTION 6.2. Notice of Defaults............................................45
SECTION 6.3. Certain Rights of Trustee.....................................45
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities........46
SECTION 6.5. May Hold Securities...........................................47
SECTION 6.6. Money Held in Trust...........................................47
SECTION 6.7. Compensation and Reimbursement................................47
SECTION 6.8. Disqualification; Conflicting Interests.......................48
SECTION 6.9. Corporate Trustee Required; Eligibility.......................48
SECTION 6.10. Resignation and Removal; Appointment of Successor.............48
SECTION 6.11. Acceptance of Appointment by Successor........................50
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business...51
SECTION 6.13. Preferential Collection of Claims Against Company.............51
SECTION 6.14. Appointment of Authenticating Agent...........................51
</TABLE>
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION
<TABLE>
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SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.....53
SECTION 7.2. Preservation of Information, Communications to Holders........53
SECTION 7.3. Reports by Trustee............................................53
SECTION 7.4. Reports by Company............................................54
</TABLE>
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
<TABLE>
<S> <C> <C>
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms..........54
SECTION 8.2. Successor Company Substituted.................................55
</TABLE>
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<PAGE> 5
ARTICLE IX
SUPPLEMENTAL INDENTURES
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SECTION 9.1. Supplemental Indentures without Consent of Holders............56
SECTION 9.2. Supplemental Indentures with Consent of Holders...............57
SECTION 9.3. Execution of Supplemental Indentures..........................58
SECTION 9.4. Effect of Supplemental Indentures.............................58
SECTION 9.5. Conformity with Trust Indenture Act...........................58
SECTION 9.6. Reference in Securities to Supplemental Indentures............58
</TABLE>
ARTICLE X
COVENANTS
<TABLE>
<S> <C> <C>
SECTION 10.1. Payment of Principal, Premium and Interest....................59
SECTION 10.2. Maintenance of Office or Agency...............................59
SECTION 10.3. Money for Security Payments to be Held in Trust...............59
SECTION 10.4. Statement as to Compliance....................................61
SECTION 10.5. Waiver of Certain Covenants...................................61
SECTION 10.6. Additional Sums...............................................61
SECTION 10.7. Additional Covenants..........................................62
SECTION 10.8. Original Issue Discount.......................................63
SECTION 10.9. Statement by Officers as to Default...........................63
</TABLE>
ARTICLE XI
REDEMPTION OF SECURITIES
<TABLE>
<S> <C> <C>
SECTION 11.1. Applicability of This Article.................................63
SECTION 11.2. Election to Redeem; Notice to Trustee.........................63
SECTION 11.3. Selection of Securities to be Redeemed........................64
SECTION 11.4. Notice of Redemption..........................................64
SECTION 11.5. Deposit of Redemption Price...................................65
SECTION 11.6. Payment of Securities Called for Redemption...................65
SECTION 11.7. Right of Redemption of Securities Initially Issued to
an Issuer Trust ..............................................66
</TABLE>
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<PAGE> 6
ARTICLE XII
SINKING FUNDS
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SECTION 12.1. Applicability of Article.......................................66
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities..........67
SECTION 12.3. Redemption of Securities for Sinking Fund......................67
</TABLE>
ARTICLE XIII
SUBORDINATION OF SECURITIES
<TABLE>
<S> <C> <C>
SECTION 13.1. Securities Subordinate to Senior Indebtedness..................68
SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment
Over of Proceeds Upon Dissolution, Etc.........................69
SECTION 13.3. Payment Permitted If No Default................................70
SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness........70
SECTION 13.5. Provisions Solely to Define Relative Rights....................71
SECTION 13.6. Trustee to Effectuate Subordination............................71
SECTION 13.7. No Waiver of Subordination Provisions..........................71
SECTION 13.8. Notice to Trustee..............................................72
SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating Agent.72
SECTION 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness.......73
SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights ..............................73
SECTION 13.12. Article Applicable to Paying Agents............................73
</TABLE>
[ARTICLE XIV TO BE INSERTED IF CITADEL BROADCASTING IS ISSUING SECURITIES]
ARTICLE XIV
GUARANTEE OF OBLIGATIONS OF THE COMPANY
Section 14.01 Guarantee
Section 14.02 Waiver of Notice and Demand
Section 14.03 Obligations Not Affected
Section 14.04 Prohibition on Distributions, Etc.
Section 14.05 Rights of Holders
Section 14.06 Guarantee of Payments
Section 14.07 Subrogation
Section 14.08 Independent Obligations
Section 14.09 Subordination
Section 14.10 Pari Passu Guarantees
Section 14.11 Termination
Section 14.12 Exculpation
Section 14.13 Indemnification
-v-
<PAGE> 7
JUNIOR SUBORDINATED INDENTURE, dated as of _______between [CITADEL
COMMUNICATIONS CORPORATION/CITADEL BROADCASTING COMPANY] a Nevada corporation
(the "Company"), having its principal office at City Center West, Suite 400,
7201 West Lake Mead Boulevard, Las Vegas, Nevada 89128, and THE BANK OF NEW
YORK, a New York banking corporation, as Trustee (the "Trustee").
RECITALS OF THE CORPORATION
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
unsecured junior subordinated debt securities in series (hereinafter called the
"Securities") of substantially the tenor hereinafter provided, including
Securities issued to evidence loans made to the Company of the proceeds from the
issuance from time to time by one or more business trusts (each an "Issuer
Trust") of undivided preferred beneficial interests in the assets of such Issuer
Trusts (the " Preferred Securities") and undivided common beneficial interests
in the assets of such Issuer Trusts (the "Common Securities" and, collectively
with the Preferred Securities, the "Trust Securities"), and to provide the terms
and conditions upon which the Securities are to be authenticated, issued and
delivered; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(4) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(5) Whenever the context may require, any gender shall be deemed to
include the others;
(6) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
(7) The words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
<PAGE> 8
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Securities of any series the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means, in the case of Securities of a series initially
issued to an Issuer Trust, taxes, duties or other governmental charges imposed
on the Issuer Trust as a result of a Tax Event (which, for the sake of clarity,
does not include amounts required to be deducted or withheld by the Issuer Trust
from payments made by the Issuer Trust to or for the benefit of the Holder of,
or any person that acquires a beneficial interest in, the Securities).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Bank Credit Agreement" means [the loan agreement dated _______ among the
Company and the lender parties thereto and] any credit facility to be entered
into by the Company after the date of this Indenture.
<PAGE> 9
"Bankruptcy Code" means Title 11 of the United States Code or any
successor statute thereto, in each case as amended from time to time.
"Bankruptcy Law" means the Bankruptcy Code or any similar United States
federal or state or foreign law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganization or relief of debtors or
any amendment to, succession to or change in any such law.
"Board of Directors" means the board of directors of the Company or the
Executive Committee of the board of directors of the Company (or any other
committee of the board of directors of the Company performing similar functions)
or a committee designated by the board of directors of the Company (or such
committee), comprised of two or more members of the board of directors of the
Company or officers of the Company, or both.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors, or officers of the Company to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to an Issuer Trust for so long as such Securities are
held by such Issuer Trust, the "Corporate Trust Office" (as defined in the
related Trust Agreement) of the Property Trustee or the Delaware Trustee under
the related Trust Agreement, is closed for business.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
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<PAGE> 10
"Common Securities" has the meaning specified in the first recital of this
Indenture.
"Common Stock" means the common stock, par value $0.01 per share, of the
Company.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of this Indenture is located at 101
Barclay Street, Floor 21 West, New York, New York 10286, Attention: Corporate
Trust Administration.
"corporation" includes a corporation, association, company, limited
liability company, joint-stock company or business trust.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by its Chairman of the Board
of Directors, a Vice Chairman, its Chief Executive Officer, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Debt" means, with respect to any Person, without duplication, any
liability, whether or not contingent, (i) in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereto), but excluding
reimbursement obligations under any surety bond, (ii) representing the balance
deferred and unpaid of the purchase price of any property (including pursuant to
capitalized lease obligations), except any such balance that constitutes a trade
payable, (iii) under interest swap agreements (as defined in the Bank Credit
Agreement) entered into pursuant to the Bank Credit Agreement, (iv) under any
other agreement related to the fixing of interest rates on any Indebtedness,
such as an interest swap, cap or collar agreement (if and to the extent any of
the foregoing liabilities would appear as a liability upon a balance sheet of
such Person prepared on a consolidated basis in accordance with GAAP) or (v)
guarantees of items of other Persons which would be included within this
definition for such other Persons (whether or not the guarantee would appear on
such balance sheet). "Debt" does not include (i) Disqualified Stock, (ii) any
liability for federal, state or other taxes owed or owing by such Person or
(iii) any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or instruments
evidencing such liabilities).
"Defaulted Interest" has the meaning specified in Section 3.8.
"Delaware Trustee" means, with respect to any Issuer Trust, the Person
identified as the "Delaware Trustee" in the related Trust Agreement, solely in
its capacity as Delaware Trustee of such Issuer Trust under such Trust Agreement
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Delaware trustee appointed as therein provided.
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<PAGE> 11
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.1 with
respect to such series (or any successor thereto).
"Discount Security" means any security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Disqualified Stock" means, with respect to any series of Securities, any
capital stock of the Company or any Restricted Subsidiary which, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
maturity date of such Securities.
"Distributions," with respect to the Trust Securities issued by an Issuer
Trust, means amounts payable in respect of such Trust Securities as provided in
the related Trust Agreement and referred to therein as "Distributions."
"Dollar" or "$" means the currency of the United States of America that,
as at the time of payment, is legal tender for the payment of public and private
debts.
"Event of Default", unless otherwise specified with respect to a series of
Securities as contemplated by Section 3.1, has the meaning specified in Article
V.
"Exchange Act" means the Securities Exchange Act of 1934 or any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.12.
[The following definitions to be inserted when Citadel Broadcasting
Company is the issuer of the Securities.]
["Guarantee" means the guaranty by Citadel Communications
Corporation of the obligations of the Company as provided for in Article IV
hereof.
"Guarantee Event of Default" means a default by the Guarantor on any of
its payment or other obligations under the Guarantee; provided, that except with
respect to a default resulting from a failure to pay any Guarantee Payment, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means, with respect to any series of Securities,
to the extent not paid or made by the Company, the due and punctual payment of
the principal of and premium, if any, and interest on such series of Securities,
of acceleration or otherwise, according to the terms of such series of
Securities and of this Indenture.
"Guarantor" means Citadel Communications Corporation.
"Guaranteed Obligations" means, with respect to any series of
Securities, all indebtedness, liabilities, obligations, covenants and duties of,
and all terms and conditions to be observed by, the Company (including in its
capacity as a "debtor in possession" under any Bankruptcy Law) due or owing to,
or in favor or for the benefit of, the Trustee (or any other Person that becomes
the Trustee by reason of any succession or assignment at any time) or the
Holders under this Indenture, including the Company's obligations to make
Guarantee Payments with respect to such series of Securities, in each case
whether or not an allowable claim against the Company under any Bankruptcy Law,
or otherwise enforceable against the Company, and including, in any event,
interest accruing after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for
postpetition interest is allowed in such proceeding.]
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Guarantee Agreement" means, with respect to any Issuer Trust, the
Guarantee Agreement executed by the Company for the benefit of the Holders of
the Preferred Securities issued by such Issuer Trust as modified, amended or
supplemented from time to time.]
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indebtedness" with respect to any Person, means the Debt of such Person;
provided that, for purposes of the definition of "Indebtedness" (including the
term "Debt" to the extent incorporated in such definition), the term "guarantee"
shall not be interpreted to extend to a guarantee under which recourse is
limited to the capital stock of an entity that is not a Restricted Subsidiary.
-5-
<PAGE> 12
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of each particular series of Securities established as
contemplated by Section 3.1.
"Interest Payment Date" means, as to each series of Securities, the Stated
Maturity of an installment of interest on such Securities.
"Investment Company Act" means the Investment Company Act of 1940 or any
successor statute thereto, in each case as amended from time to time.
"Investment Company Act Event" means the receipt by an Issuer Trust of an
Opinion of Counsel (as defined in the relevant Trust Agreement) experienced in
such matters to the effect that, as a result of the occurrence of a change
(including any announced prospective change) in law or regulation or a written
change (including any announced prospective change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
such Issuer Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act, which change or
prospective change becomes effective or would become effective, as the case may
be, on or after the date of the issuance of the Preferred Securities of such
Issuer Trust.
"Issuer Trust" has the meaning specified in the first recital of this
Indenture.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security or any installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman, the Chief Executive Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel experienced in
matters of the kind described in the definition of Tax Event, who may be counsel
for or an employee of the Company or any Affiliate of the Company.
"Original Issue Date" means the date of issuance specified as such in each
Security.
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
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<PAGE> 13
(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust
for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or that have been paid
pursuant to Section 3.7, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands such
Securities are valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities that a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor. Upon the written request of the Trustee, the Company shall furnish to
the Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Company to be owned or held by or for the
account of the Company, or any other obligor on the Securities or any Affiliate
of the Company or such obligor, and subject to the provisions of Section 6.1,
the Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
Notwithstanding anything herein to the contrary, Securities of any series
initially issued to an Issuer Trust that are owned by such Issuer Trust shall be
deemed to be Outstanding notwithstanding the ownership by the Company or an
Affiliate of any beneficial interest in such Issuer Trust.
"Paying Agent" means the Trustee or any Person authorized by the Company
to pay the principal of (or premium, if any) or interest on, or other amounts in
respect of, any Securities on behalf of the Company.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Place of Payment" means, with respect to the Securities of any series,
the place or places where the principal of (and premium, if any) and interest on
the Securities of such series are payable pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For the purposes of this definition, any security
authenticated and delivered under Section 3.7 in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
-7-
<PAGE> 14
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to any Issuer Trust, the Person
identified as the "Property Trustee" in the related Trust Agreement, solely in
its capacity as Property Trustee of such Issuer Trust under such Trust Agreement
and not in its individual capacity, or its successor in interest in such
capacity, or any successor property trustee appointed as therein provided.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture or the
terms of such Security.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of such series, the date that
is fifteen days next preceding such Interest Payment Date (whether or not a
Business Day).
"Responsible Officer", when used with respect to the Trustee, means any
officer assigned to the Corporate Trust Office, including any vice president,
assistant vice president, assistant treasurer, any assistant secretary or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary, whether existing on the date
hereof or created subsequent hereto, designated from time to time by the Company
as a "Restricted Subsidiary" and the initial Restricted Subsidiaries designated
by the Company are set forth on Exhibit A; provided, however, that no Subsidiary
that is not a Securitization Subsidiary (as defined in the Indenture, dated as
of July 1, 1998, between CSC Holdings, Inc. and The Bank of New York, as Trustee
(the "Senior Debt Indenture")) can be or remain so designated unless (i) at
least 67% of each of the total equity interest and the voting control of such
Subsidiary is owned, directly or indirectly, by the Company or another
Restricted Subsidiary and (ii) such Subsidiary is not restricted, pursuant to
the terms of any loan agreement, note, indenture or other evidence of
indebtedness, from (a) paying dividends or making any distribution on such
Subsidiary's capital stock or other equity securities or paying any Indebtedness
owed to the Company or to any Restricted Subsidiary, (b) making any loans or
advances to the Company or any Restricted Subsidiary or (c) transferring any of
its properties or assets to the Company or any Restricted Subsidiary (it being
understood that a financial covenant any of the components of which are directly
impacted by the taking of the action (e.g., the payment of a dividend) itself
(such as a minimum net worth test) would be deemed to be a restriction on the
foregoing actions, while a financial covenant none of the components of which
are directly impacted by the taking of the action (e.g., the payment of a
dividend) itself (such as a debt to cash flow test) would not be deemed to be a
restriction on the foregoing actions); and provided further that the Company
may, from time to time, redesignate any Restricted Subsidiary as an Unrestricted
Subsidiary in accordance with Section 1010 of the Senior Debt Indenture.
-8-
<PAGE> 15
"Securities" or "Security" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 or any successor statute
thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.6.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt of the Company, whether incurred on or prior to the date of this Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Securities or to other
Debt that is pari passu with, or subordinated to, the Securities, provided,
however, that Senior Indebtedness shall not be deemed to include (a) any Debt of
the Company that, when incurred and without respect to any election under
Section 1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to
the Company, (b) any Debt of the Company to any of its Subsidiaries, (c) Debt to
any employee of the Company, (d) any Securities, (e) trade accounts payable of
the Company, and (f) accrued liabilities arising in the ordinary course of
business of the Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof (or premium, if any) or interest (including any
Additional Interest) thereon, means the date specified pursuant to the terms of
such Security as the fixed date on which the principal of such Security or such
installment of principal (or premium, if any) or interest (including any
Additional Interest) is due and payable, as such date may, in the case of the
stated maturity of the principal on any security, be shortened or extended as
provided pursuant to the terms of such Security and this Indenture and, in the
case of any installment of interest, subject to the deferral of any such date in
the case of any Extension Period.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For purposes of this definition, "voting stock" means stock that ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.7 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
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<PAGE> 16
"Tax Event" means the receipt by an Issuer Trust of an Opinion of Counsel
to the effect that, as a result of (a) any amendment to, clarification of, or
change (including any announced prospective change) in, the laws or any
regulations thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any judicial decision or any
official administrative pronouncement (including any private letter ruling,
technical advice memorandum or field service advice) or regulatory procedure (an
"Administrative Action"), regardless of whether such judicial decision or
Administrative Action is issued to or in connection with a proceeding involving
the Company or the Issuer Trust and whether or not subject to review or appeal,
which amendment, change, Administrative Action or decision is enacted,
promulgated or announced, in each case, on or after the date hereof, there is
more than an insubstantial risk that (i) the Issuer Trust is, or will be within
90 days of the date of such opinion, subject to United States Federal income tax
with respect to income received or accrued on the Junior Subordinated
Debentures, (ii) interest payable by the Company or original issue discount
accruing on the Junior Subordinated Debentures is not, or within 90 days of the
date of such opinion, will not be, deductible by the Company, in whole or in
part, for United States Federal income tax purposes, or (iii) the Issuer Trust
is, or will be within 90 days of the date of such opinion, subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
"Trust Agreement" means, with respect to any Issuer Trust, the trust
agreement or other governing instrument of such Issuer Trust.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument, solely in its capacity as such and not in its individual
capacity, until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
ss.ss. 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture, except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital of this
Indenture.
"Vice President," when used with respect to the Company, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
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<PAGE> 17
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent
(including covenants compliance with which constitutes a condition
precedent), if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent (including covenants
compliance with which constitutes a condition precedent), if any, have been
complied with, except that in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.4) shall include:
(1) a statement by each individual signing such certificate or opinion
that such individual has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions of such individual contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his or her certificate or opinion is based
are erroneous. Any such certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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<PAGE> 18
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a Person acting in other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next succeeding paragraph.
If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date, provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
(as defined below) by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
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<PAGE> 19
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2), or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date, provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto that sets such record date may designate any day as the "Expiration Date"
and from time to time may change the Expiration Date to any earlier or later
day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
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<PAGE> 20
SECTION 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,(1) the Trustee by any Holder,
any holder of Preferred Securities or the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing (which may be
via facsimile) to or with the Trustee at its Corporate Trust office, or (2) the
Company by the Trustee, any Holder or any holder of Capital Securities shall be
sufficient for every purpose (except as otherwise provided in Section 5.1)
hereunder if in writing and mailed, first class, postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If, by reason of the suspension
of or irregularities in regular mail service or for any other reason, it shall
be impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture or of
the relevant Securities, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
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<PAGE> 21
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
If any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Indebtedness, the Holders of the Securities and,
to the extent expressly provided in Sections 5.1, 5.2, 5.8, 5.9, 5.11, 5.13, 9.1
and 9.2, the holders of Preferred Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or the Securities) payment of interest or principal (and
premium, if any) or other amounts in respect of such Security need not be made
on such date, but may be made on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, until such next succeeding Business Day) except
that, if such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day (in each case
with the same force and effect as if made on the Interest Payment Date or
Redemption Date or at the Stated Maturity).
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<PAGE> 22
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with applicable tax laws or the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 with respect to the authentication and
delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such securities.
SECTION 2.2. Form of Face of Security.
[NAME OF COMPANY]
[Title of Security]
CUSIP No. _________
No. $
[CITADEL COMMUNICATIONS CORPORATION/CITADEL BROADCASTING COMPANY], a
corporation organized and existing under the laws of Nevada (hereinafter called
the "Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________, or registered assigns, the principal sum of __________ Dollars
on __________ __, [if the Security is a Global Security, then insert, if
applicable, or such other principal amount represented hereby as may be set
forth in the records of the Securities Registrar hereinafter referred to in
accordance with the Indenture,] [; provided that the Company may shorten the
Stated Maturity of the principal of this Security to a date not earlier than at
any time on one or more occasions, subject to certain conditions specified in
Section 3.15 of the Indenture. The Company further promises to pay interest on
said principal sum from ________, __ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, quarterly [if
applicable, insert--(subject to deferral as set forth herein)] in arrears on
[insert applicable Interest Payment Dates] of each year, commencing ________,
_____, at the rate of ____% per annum,
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<PAGE> 23
[if applicable insert--together with Additional Sums, if any, as provided in
Section 10.6 of the Indenture] until the principal hereof is paid or duly
provided for or made available for payment [if applicable, insert--; provided
that any overdue principal, premium or Additional Sums and any overdue
installment of interest shall bear Additional Interest at the rate of ___% per
annum (to the extent that the payment of such interest shall be legally
enforceable), compounded quarterly, from the dates such amounts are due until
they are paid or made available for payment, and such interest shall be payable
on demand]. The amount of interest payable for any period less than a full
interest period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual days elapsed in a partial month in such period. The
amount of interest payable for any full interest period shall be computed by
dividing the applicable rate per annum by [four]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest installment [if applicable insert--,
which shall be the [____________ or ____________], as the case may be, next
preceding such Interest Payment Date]. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time during the term of
this Security, from time to time to defer the payment of interest on this
Security for up to _________ consecutive quarterly interest payment periods with
respect to each deferral period (each an "Extension Period") [If applicable,
insert--, during which Extension Periods the Company shall have the right to
make partial payments of interest on any Interest Payment Date, and] at the end
of which the Company shall pay all interest then accrued and unpaid including
any Additional Interest, as provided below; provided, however, that no Extension
Period shall extend beyond the Stated Maturity of the principal of this Security
[If Stated Maturity can be shortened or extended, insert--, as then in effect,]
and no such Extension Period may end on a date other than an Interest Payment
Date; and provided, further, however, that during any such Extension Period, the
Company shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Company's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with or junior in
interest to this Security (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of an exchange or conversion of any class or series of the
Company's capital stock (or any capital stock of a Subsidiary of the Company)
for any class or series of the Company's capital stock or of any class or series
of the Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares
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<PAGE> 24
of the Company's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged, or (d) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior to such stock). Prior to the termination of any
such Extension Period, the Company may further defer the payment of interest,
provided that no Extension Period shall exceed _________ consecutive quarterly
interest payment periods, extend beyond the Stated Maturity of the principal of
this Security or end on a date other than an Interest Payment Date. Upon the
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due on any Interest Payment
Date, the Company may elect to begin a new Extension Period, subject to the
above conditions. No interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension shall bear Additional
Interest (to the extent that the payment of such interest shall be legally
enforceable) at the rate of ____% per annum, compounded quarterly and calculated
as set forth in the first paragraph of this Security, from the dates on which
amounts would otherwise have been due and payable until paid or made available
for payment. The Company shall give the Holder of this Security and the Trustee
notice of its election to begin any Extension Period at least one Business Day
prior to the next succeeding Interest Payment Date on which interest on this
Security would be payable but for such deferral [if applicable, insert--or so
long as such Securities are held by [insert name of applicable Issuer Trust], at
least one Business Day prior to the earlier of (i) the next succeeding date on
which Distributions on the Capital Securities of such Issuer Trust would be
payable but for such deferral, and (ii) the date on which the Property Trustee
of such Issuer Trust is required to give notice to holders of such Preferred
Securities of the record date or the date such Distributions are payable].
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the [insert Place of Payment], in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts [if applicable, insert--; provided, however, that at
the option of the Company payment of interest may be made (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Securities Register, or (ii) by wire transfer in immediately available funds at
such place and to such account as may be designated by the Person entitled
thereto as specified in the Securities Register]. If any interest, principal or
other amount is payable on a day that is not a Business Day, the payment may be
made on the next succeeding Business Day unless that business day is in a
different calendar year, in which case the payment may be made on the next
preceding Business Day. Each payment made on the next succeeding or preceding
Business Day as described above may be made with the same force and effect as if
made on the day on which the payment is originally payable.
[To be inserted if Citadel Broadcasting Company is the issuer of the
Securities.]
[Guarantee.
Citadel Communications Corporation ("Citadel Communications") fully,
irrevocably and unconditionally guarantees the payment in full by the Company of
its obligations under the Securities (the "Guarantee"). Citadel Communications
hereby waives notice of acceptance of the Guarantee and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Company or any other person, firm or
corporation before proceeding against Citadel Communications, protest, notice of
nonpayment or dishonor, notice of redemption, and all other notices and demands.
The obligation of Citadel Communications under the Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of (i)
the release or waiver, by operation of law or otherwise, of the performance or
observance by the Company of any obligation to be performed or observed by it
under this Agreement, (ii) any failure, omission, delay or involuntary
liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, or other similar proceedings affecting
the Company or (iv) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of Citadel Communications that its obligations under the Guarantee
shall be irrevocable, absolute and unconditional under any and all circumstances
(and there shall be no obligation of any person, firm or corporation to five
notice to, or obtain consent of, Citadel Communications with respect to the
happening of any of the foregoing). The Guarantee constitutes a guarantee of
performance and payment are independent of the obligations of the Company under
this Agreement, and notwithstanding the occurrence of any event referred to
above.]
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such actions as
may be necessary or appropriate to effectuate the subordination so provided, and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof,
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<PAGE> 25
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
[NAME OF COMPANY]
By:
------------------------------
Name:
Title:
Attest:
- ---------------------------------
[Secretary or Assistant Secretary]
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under the Junior Subordinated Indenture, dated as of ___ __,___ (herein
called the "Indenture"), between the Company and The Bank of New York , as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities, and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof [if applicable,
insert--, limited in aggregate principal amount to $______].
All terms used in this Security that are defined in the Indenture [if
applicable, insert--or in the Amended and Restated Trust Agreement, dated as of
_________, (as modified, amended or supplemented from time to time, the
"Trust Agreement"), relating to [insert name of Issuer Trust] (the "Issuer
Trust") among the Company, as Depositor, the Trustees named therein and the
Holders from time to time of the Trust Securities issued pursuant thereto, shall
have the meanings assigned to them in the Indenture [if applicable, insert--or
the Trust Agreement, as the case may be].
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<PAGE> 26
[If applicable, insert--The Company may at any time, at its option, on or
after _________, ____, and subject to the terms and conditions of Article XI of
the Indenture, redeem this Security in whole at any time or in part from time to
time, at [if applicable, insert-- the following Redemption Prices (expressed as
percentages of the principal amount hereof): If redeemed during the 12-month
period beginning _____________,
Redemption
<TABLE>
<CAPTION>
Year Price
---- -----------
<S> <C>
</TABLE>
and thereafter at a Redemption Price equal to 100% of the principal amount
hereof, together, in the case of any such redemption, with accrued interest [if
applicable, insert--, including any Additional Interest,] to but excluding the
date fixed for redemption,] [a Redemption Price equal to 100% of the principal
amount hereof, together, in the case of any such redemption, with accrued
interest [if applicable, insert--, including any Additional Interest,] to but
excluding the date fixed for redemption.]
[If applicable, insert--In addition, upon the occurrence and during the
continuation of a Tax Event or an Investment Company Event in respect of the
Issuer Trust, the Company may, at its option, at any time within 90 days of the
occurrence and during the continuation of such Tax Event or Investment Company
Event, as the case may be redeem this Security, in whole but not in part,
subject to the terms and conditions of Article XI of the Indenture, at a
redemption price equal to [insert formula].
[If the Security is subject to redemption of any kind, insert--In the
event of redemption of this Security in part only, a new Security or Securities
of this series for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
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<PAGE> 27
[If the Security is not a Discount Security, insert--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders) [if applicable, insert--, provided that, if
upon an Event of Default, the Trustee or such Holders fail to declare the
principal of all the Outstanding Securities of this series to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation Amount of the
Preferred Securities then Outstanding shall have the right to make such
declaration by a notice in writing to the Company and the Trustee]; and upon any
such declaration the principal amount of and the accrued interest (including any
Additional Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest [insert if applicable--including any Additional Interest)] on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
for such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $________ and any integral multiple of $____________
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
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<PAGE> 28
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
SECTION 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any Global
Security issued hereunder shall, in addition to the provisions contained in
Sections 2.2 and 2.3, bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
SECTION 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------
Authorized signatory
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<PAGE> 29
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth or determined in the manner provided in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of a series:
(a) the title of the securities of such series (including CUSIP
Numbers), which shall distinguish the Securities of the series from all
other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, 3.6, 3.7, 9.6 or 11.6
and except for any Securities that, pursuant to Section 3.3, are deemed
never to have been authenticated and delivered hereunder); provided,
however, that the authorized aggregate principal amount of such series may
be increased above such amount by a Board Resolution to such effect;
(c) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(d) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination
thereof, and any dates on which or circumstances under which, the Company
shall have the right to extend or shorten such Stated Maturity or
Maturities;
(e) the rate or rates, if any, at which the Securities of such
series shall bear interest, if any, the rate or rates and extent to which
Additional Interest, if any, shall be payable in respect of any Securities
of such series, the date or dates from which any such interest or
Additional Interest shall accrue, the Interest Payment Dates on which such
interest shall be payable, the right, pursuant to Section 3.12 or as
otherwise set forth therein, of the Company to defer or extend an Interest
Payment Date, and the Regular Record Date for the interest payable on any
Interest Payment Date or the method by which any of the foregoing shall be
determined;
(f) the place or places where the principal of (and premium, if any)
and interest (including any Additional Interest) on the Securities of such
series shall be payable, the place or places where the Securities of such
series may be presented for registration of transfer or exchange, any
restrictions that may be applicable to any such transfer or exchange in
addition
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<PAGE> 30
to or in lieu of those set forth herein, and the place or places where
notices and demands to or upon the Company in respect of the Securities of
such series may be made;
(g) the period or periods within or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon which
the Securities of such series may be redeemed, in whole or in part, at the
option of the Company, and if other than by a Board Resolution, the manner
in which any election by the Company to redeem such Securities shall be
evidenced;
(h) the obligation or the right, if any, of the Company to redeem,
repay or purchase the Securities of such series pursuant to any sinking
fund, amortization or analogous provisions, or at the option of a Holder
thereof, and the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which and the other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(i) the denominations in which any Securities of such series shall
be issuable, if other than denominations of $25 and any integral multiple
thereof;
(j) if other than Dollars, the currency or currencies (including any
currency unit or units) in which the principal of (and premium, if any)
and interest and Additional Interest, if any, on the Securities of the
series shall be payable, or in which the Securities of the series shall be
denominated and the manner of determining the equivalent thereof in
Dollars for purposes of the definition of Outstanding;
(k) the additions, modifications or deletions, if any, in the Events
of Default or covenants of the Company set forth herein with respect to
the Securities of such series;
(l) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(m) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(n) the additions or changes, if any, to this Indenture with respect
to the Securities of such series as shall be necessary to permit or
facilitate the issuance of the Securities of such series in bearer form,
registrable or not registrable as to principal, and with or without
interest coupons;
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<PAGE> 31
(o) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the
manner in which such amounts will be determined;
(p) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends that shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 2.4 and
any circumstances in addition to or in lieu of those set forth in Section
3.6 in which any such Global Security may be exchanged in whole or in part
for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other
than the Depositary for such Global Security or a nominee thereof;
(q) the appointment of any Paying Agent or agents for the Securities
of such series;
(r) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Company, and the
additions or changes, if any, to this Indenture with respect to the
Securities of such series to permit or facilitate such conversion or
exchange;
(s) if such Securities are to be issued to an Issuer Trust, the form
or forms of the Trust Agreement, Guarantee Agreement and Expense Agreement
relating thereto;
(t) if other than as set forth herein, the relative degree, if any,
to which the Securities of the series shall be senior to or be
subordinated to other series of Securities in right of payment, whether
such other series of Securities are Outstanding or not;
(u) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 5.2;
(v) any addition to or change in the covenants set forth in Article
X which applies to Securities of the series; and
(w) any other terms of the Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1(6)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided herein or in or
pursuant to such Board Resolution and set forth, or determined in the manner
provided, in such Officers' Certificate or in any indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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<PAGE> 32
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without coupons
and shall be issuable in denominations of $25 and any integral multiple of $25
in excess thereof, unless otherwise specified as contemplated by Section 3.1.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents and attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms
have been established in conformity with the provisions of this Indenture;
and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights,
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<PAGE> 33
duties, indemnities or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.10, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any denomination, substantially of the
tenor of the definitive Securities of such series in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as evidenced
by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations having the same Original
Issue Date and Stated Maturity and having the same terms as such temporary
Securities. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
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<PAGE> 34
SECTION 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be registered
in the name of the Depositary designated by the Company for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary advises the Trustee in writing that such
Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Security, and the
Company is unable to locate a qualified successor, (ii) the Company executes and
delivers to the Trustee a Company Order stating that the Company elects to
terminate the book-entry system through the Depositary, or (iii) there shall
have occurred and be continuing an Event of Default.
(c) If any Global Security is to be exchanged for other Securities or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Securities Registrar for exchange or cancellation as provided
in this Article III. If any Global Security is to be exchanged for other
Securities or cancelled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, then either
(i) such Global Security shall be so surrendered for exchange or cancellation as
provided in this Article III or (ii) the principal amount thereof shall be
reduced, subject to Section 3.6(b)(v), or increased by an amount equal to the
portion thereof to be so exchanged or cancelled, or equal to the principal
amount of such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Trustee, in accordance with
the Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security by the Depositary, accompanied by
registration instructions, the Trustee shall, subject to Section 3.5(b) and as
otherwise provided in this Article III, authenticate and deliver any Securities
issuable in exchange for such Global Security (or any portion thereof) in
accordance with the instructions of the Depositary. The Trustee shall not be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article III, Section 9.6 or 11.6 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof.
(e) Securities distributed to holders of Book-Entry Preferred Securities
(as defined in the applicable Trust Agreement) upon the dissolution of an Issuer
Trust shall be distributed in the form of one or more Global Securities
registered in the name of a Depositary or its nominee, and deposited with the
Securities Registrar, as custodian for such Depositary, or with such Depositary,
for credit by the Depositary to the respective accounts of the beneficial owners
of the Securities represented thereby
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<PAGE> 35
(or such other accounts as they may direct). Securities distributed to holders
of Preferred Securities other than Book-Entry Preferred Securities upon the
dissolution of an Issuer Trust shall not be issued in the form of a Global
Security or any other form intended to facilitate book-entry trading in
beneficial interests in such Securities.
(f) The Depositary or its nominee, as the registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security shall be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
Neither the Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Depositary.
(g) The rights of owners of beneficial interests in a Global Security
shall be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Agent Members.
SECTION 3.6. Registration, Transfer and Exchange Generally.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the offices
or agencies of the Company designated for that purpose the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series of any authorized denominations of like tenor and aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of like tenor and
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities shall be
the legal, valid and binding obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Securities Registrar, duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing.
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<PAGE> 36
No service charge shall be made to a Holder for any transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (i) to issue, register the transfer of or exchange
any Security of any series during a period beginning at the opening of business
15 days before the day of selection for redemption of Securities of that series
pursuant to Article XI and ending at the close of business on the day of mailing
of the notice of redemption, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except, in the case of
any such Security to be redeemed in part, any portion thereof not to be
redeemed.
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series,
of like tenor and aggregate principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security, and
(ii) such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its written request the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the same
series, of like tenor and aggregate principal amount as such destroyed, lost or
stolen Security, and bearing a number not contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and its counsel) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.8. Payment of Interest and Additional Interest; Interest Rights
Preserved.
Interest and Additional Interest on any Security of any series that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date, shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest in respect of Securities of such series, except
that, unless otherwise provided in the Securities of such series, interest and
any Additional Interest payable on the Stated Maturity of the principal of a
Security shall be paid to the Person to whom principal is paid. The initial
payment of interest on any Security of any series that is issued between a
Regular Record Date and the related Interest Payment Date shall be payable as
provided in such Security or in the Board Resolution pursuant to Section 3.1
with respect to the related series of Securities.
Any interest on any Security that is due and payable, but is not timely
paid or duly provided for, on any Interest Payment Date for Securities of such
series (herein called "Defaulted Interest"), shall forthwith cease to be payable
to the registered Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest, which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of the series
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in respect of which interest is in default may be listed and, upon such notice
as may be required by such exchange (or by the Trustee if the Securities are not
listed), if, after written notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, that were carried by such other Security.
SECTION 3.9. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee shall
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 3.8) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as between a Depositary and
such holders of beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its nominee) as
Holder of any Security.
SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities shall be returned to the
Company.
SECTION 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
partial period shall be computed on the basis of a 360- day year of twelve
30-day months and the actual number of days elapsed in any partial month in such
period, and interest on the Securities of each series for a full period shall be
computed by dividing the rate per annum by the number of interest periods that
together constitute a full twelve months.
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SECTION 3.12. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 3.1 (each, an "Extension Period"), during which Extension Periods the
Company shall, if so specified as contemplated by Section 3.1, have the right to
make partial payments of interest on any Interest Payment Date. No Extension
Period shall end on a date other than an Interest Payment Date. At the end of
any such Extension Period the Company shall pay all interest then accrued and
unpaid on the Securities (together with Additional Interest thereon, if any, at
the rate specified for the Securities of such series to the extent permitted by
applicable law); provided, however, that no Extension Period shall extend beyond
the Stated Maturity of the principal of the Securities of such series; and
provided further, however that during any such Extension Period, the Company
shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock, or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu in all respects with or junior in interest to the
Securities of such series (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of an exchange or conversion of any class or series of the
Company's capital stock (or any capital stock of a Subsidiary of the Company)
for any class or series of the Company's capital stock or of any class or series
of the Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, or (d) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari passu with
or junior to such stock). Prior to the termination of any such Extension Period,
the Company may further defer the payment of interest, provided that no
Extension Period shall exceed the period or periods specified in such
Securities, extend beyond the Stated Maturity of the principal of such
Securities or end on a date other than an Interest Payment Date. Upon the
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due on any Interest Payment
Date, the Company may elect to begin a new Extension Period, subject to the
above conditions. No interest or Additional Interest shall be due and payable
during an Extension Period, except at the end thereof, but each installment of
interest that would otherwise have been due and payable during such Extension
Period shall bear Additional Interest as and to the extent as may be specified
as contemplated by Section 3.1. The Company shall give the Holders of the
Securities of such series and the Trustee written notice of its election to
begin any such Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on Securities of such series
would be payable but for such deferral or, with respect to any Securities of a
series issued to an Issuer Trust, so long as any such Securities are held by
such Issuer Trust, at least one Business
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Day prior to the earlier of (i) the next succeeding date on which Distributions
on the Preferred Securities of such Issuer Trust would be payable but for such
deferral, and (ii) the date on which the Property Trustee of such Issuer Trust
is required to give notice to any securities exchange or other applicable
self-regulatory organization or to holders of such Preferred Securities of the
record date or the date such Distributions are payable.
The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the Holders of the Outstanding Securities of such
series.
SECTION 3.13. Right of Set-Off.
With respect to the Securities of a series initially issued to an Issuer
Trust, notwithstanding anything to the contrary herein, the Company shall have
the right to set off any payment it is otherwise required to make in respect of
any such Security to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a payment under the Guarantee
Agreement relating to such Security or to a holder of Capital Securities
pursuant to an action undertaken under Section 5.8 of this Indenture.
SECTION 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by its
acceptance or acquisition of a Security or a beneficial interest therein, the
Holder of, and any Person that acquires a direct or indirect beneficial interest
in, such Security, intend and agree to treat such Security as indebtedness of
the Company for United States Federal, state and local tax purposes and, with
respect to Securities of a series issued to an Issuer Trust, to treat Preferred
Securities of such Issuer Trust (including but not limited to all payments and
proceeds with respect to such Preferred Securities) as an undivided beneficial
ownership interest in the Securities (and payments and proceeds therefrom,
respectively) for United States Federal, state and local tax purposes. The
provisions of this Indenture shall be interpreted to further this intention and
agreement of the parties.
SECTION 3.15. Shortening and Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series, or (ii) to extend the stated
maturity of the principal of the Securities of such series at any time to any
date, but only if the Company has long-term senior unsecured debt that is
outstanding and rated Investment Grade when it gives notice of the extension as
described below. "Investment Grade" means either a rating of BBB or better by
Standard & Poor's Ratings Services (or any equivalent successor rating) or a
rating of Baa3 or better by Moody's Investors Service, Inc. (or any equivalent
successor rating). In the event that the Company elects to shorten or extend the
Stated Maturity of the Securities of such series, it shall give written notice
to the Trustee. The Trustee must notify the Holders not less than 30 days nor
more than 60 days before the effective date.
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SECTION 3.16. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption and other similar or related materials as a convenience to
Holders; provided that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other materials
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Company shall promptly notify the Trustee of
any change in the CUSIP Numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and as otherwise provided in this
Section 4.1) and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 3.7 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of subclause (B)(i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the
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currency or currencies in which the Securities of such series are payable
sufficient to pay and discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest (including any Additional Interest) to
the date of such deposit (in the case of Securities that have become due
and payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive such satisfaction and discharge.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest (including any Additional Interest) for the payment of which
such money or obligations have been deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) except
as may be specified pursuant to Section 3.1:
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension Period); or
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(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Securities of that series or in this Indenture for a period of 90 days after the
date on which written notice of such failure, requiring the Company to remedy
the same, shall have been given to the Company by the Trustee by registered or
certified mail or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities of that series; or
(4) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization of the Company under the Bankruptcy Code
or any other similar applicable Federal or State law, which decree or order
shall have continued undischarged and unstayed for a period of 60 days; or the
entry of a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver or liquidator or trustee or assignee in bankruptcy
or insolvency of the Company or of its property, or for the winding up or
liquidation of its affairs, which decree or order shall have continued
undischarged and unstayed for a period of 60 days; or
(5) the commencement by the Company of voluntary proceedings to be
adjudicated a bankrupt, or consent by the Company to the filing of a bankruptcy
proceeding against it, or the filing by the Company of a petition or answer or
consent seeking reorganization under the Bankruptcy Code or any other similar
Federal or State law, or consent by the Company to the filing of any such
petition, or the consent by the Company to the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of it or of its
property, or the making by the Company of an assignment for the benefit of
creditors, or the admission by the Company in writing of its inability to pay
its debts generally as they become due; or
(6) any other Event of Default provided with respect to Securities of that
series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided that,
in the case of the Securities of a series issued to an Issuer Trust, if, upon an
Event of Default, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series fail to declare the
principal of all the Outstanding Securities of such series to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation Amount (as
defined in the related Trust Agreement) of the related series of Capital
Securities issued by such Issuer Trust then outstanding shall have the right to
make such declaration by a notice in writing to the Company and the Trustee; and
upon any such declaration such principal amount (or specified portion thereof)
of and the accrued interest (including
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any Additional Interest) on all the Securities of such series shall become
immediately due and payable. If an Event of Default specified in Section 5.1(4)
or 5.1(5) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of such series (or, if the
Securities of such series are Discount Securities, such portion of the principal
amount of such Securities as may be specified by the terms of that series) shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable. Payment of principal
and interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII notwithstanding that such
amount shall become immediately due and payable as herein provided.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay:
(A) all overdue installments of interest on all Securities of such series,
(B) any accrued Additional Interest on all Securities of such series,
(C) the principal of (and premium, if any, on) any Securities of such
series that have become due otherwise than by such declaration of acceleration
and interest and Additional Interest thereon at the rate borne by the
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series that has
become due solely by such acceleration, have been cured or waived as provided in
Section 5.13.
In the case of Securities of a series initially issued to an Issuer Trust,
if the Holders of such Securities fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount (as defined
in the related Trust Agreement) of the related series of Preferred Securities
issued by such Issuer Trust then outstanding shall also have the right to
rescind and annul such declaration and its consequences by written notice to the
Company and the Trustee, subject to the satisfaction of the conditions set forth
in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security of any series when such
interest becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (and premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest), and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem necessary to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of
overdue principal (and premium, if any) or interest (including any
Additional Interest)) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the Securities
and to file such other papers or documents as may be necessary or
advisable and to take any and all actions as are authorized under
the Trust Indenture Act in order
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to have the claims of the Holders and any predecessor to the Trustee
under Section 6.7 allowed in any such judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same in accordance with
Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee
for distribution in accordance with Section 5.6, and in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it and any predecessor
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, subject to
Article XIII and after provision for the payment of all the amounts owing the
Trustee and any predecessor Trustee under Section 6.7, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property on account of principal (or premium,
if any) or interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee (and its agents and
counsel) and any predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due
and unpaid upon Securities of such series for principal (and premium, if any)
and interest (including any Additional Interest) in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such series of
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Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Company.
SECTION 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture or for the appointment of a receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Security of any series shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Sections 3.8 and 3.12) interest (including any Additional Interest)
on such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder. In the case of Securities of a series issued
to an Issuer Trust, any registered holder of the series of Preferred Securities
issued by such Issuer Trust shall have the right, upon the occurrence of an
Event of Default described in
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Section 5.1(1) or 5.1(2), to institute a suit directly against the Company for
enforcement of payment to such holder of principal of (premium, if any) and
(subject to Sections 3.8 and 3.12) interest (including any Additional Interest)
on the Securities having a principal amount equal to the aggregate Liquidation
Amount (as defined in the related Trust Agreement) of such Preferred Securities
held by such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities issued by
any Issuer Trust has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee, such Holder or such
holder of Preferred Securities, then and in every such case the Company, the
Trustee, such Holders and such holder of Preferred Securities shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee, such Holder and such holder of Preferred Securities shall continue as
though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.7, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security with
respect to the Securities of the related Series or any holder of any Capital
Security to exercise any right or remedy accruing upon any Event of Default with
respect to the Securities of the related series shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein.
Every right and remedy given by this Article or by law to the Trustee or
to the Holders and the right and remedy given to the holders of Capital
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Capital
Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
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(2) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow such direction if a Responsible Officer or Officers
of the Trustee shall, in good faith, determine that the proceeding so directed
would be unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series affected thereby and, in the case of
any Securities of a series initially issued to an Issuer Trust, the holders of a
majority in aggregate Liquidation Amount (as defined in the related Trust
Agreement) of the Preferred Securities issued by such Issuer Trust may waive any
past default hereunder and its consequences with respect to such series except a
default:
(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series (unless such
default has been cured and the Company has paid to or deposited with the Trustee
a sum sufficient to pay all matured installments of interest (including any
Additional Interest) and all principal of (and premium, if any, on) all
Securities of that series due otherwise than by acceleration), or
(2) in respect of a covenant or provision hereof that under Article IX
cannot be modified or amended without the consent of each Holder of any
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Capital
Securities issued by such Issuer Trust, by all holders of Preferred Securities
issued by such Issuer Trust.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder for the
enforcement of the
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payment of the principal of (or premium, if any) or interest (including any
Additional Interest) on any Security on or after the respective Stated
Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions that by any provisions hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of any mathematical
calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
Holders pursuant to Section 5.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities of a series.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or indemnity reasonably satisfactory to it against such risk or
liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, the Trustee shall be fully protected
in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Securities of such series; and
provided, further, that, in the case of any default of the character specified
in Section 5.1(3), no such notice to Holders of Securities of such series shall
be given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event that is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, Security or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its own selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the expense of the Company and shall incur
no liability or additional liability of any kind by reason of such inquiry or
investigation; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, attorneys,
custodians or nominees and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent, attorney, custodian or
nominee appointed with due care by it hereunder.
(h) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Transfer Agent and Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article VI shall also be
afforded such Paying Agent or Transfer Agent and Registrar.
(i) the Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Indenture.
(j) the Trustee shall not be charged with knowledge of any Event of
Default unless either (1) a Responsible Officer of the Trustee shall have actual
knowledge or (2) the Trustee shall have received notice thereof from the Company
or a Holder.
(k) no permissive power or authority available to the Trustee shall be
construed as a duty.
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SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 6.7. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder in such amounts as the Company and the
Trustee shall agree from time to time in writing (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or willful
misconduct; and
(3) to fully indemnify the Trustee and any predecessor Trustee and their
officers, directors, agents and employees for, and to hold it harmless against,
any and all loss, liability, claim, damage or expense (including (i) the
reasonable compensation and the expenses and disbursements of its agents and
counsel and (ii) taxes other than taxes based on the income of the Trustee)
incurred without negligence, bad faith or willful misconduct, arising out of or
in connection with the acceptance or administration of this trust or the
performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any
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of its powers or duties hereunder. This indemnification shall survive the
termination of this Indenture or the earlier resignation or removal of the
Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or 5.1(5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
(a) The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
(b) The Trust Agreement and the Guarantee Agreement with respect to each
Issuer Trust shall be deemed to be specifically described in this Indenture for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws of the
United States of America or of any State or Territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by Federal, State, Territorial or District
of Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees, in either case having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or State authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section 6.9,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.9, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article VI.
Neither the Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company shall serve as Trustee
for the Securities of any series issued hereunder.
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SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article VI shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee with respect to the Securities of all
series issued hereunder, or (ii) subject to Section 5.14, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
such Holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to the Securities of
all series issued hereunder and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee with respect to the Securities of
that or those series. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Securities of such series and
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
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appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, subject to Section 5.14, on behalf
of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Securities Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges and the charges of its agents and counsel, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or
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any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities, which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State or Territory
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision
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or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined Capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent, which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.7.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to
in the within mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
As Trustee
By: ,
As Authenticating Agent
By:
Authorized Signatory
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ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION
SECTION 7.1. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, on or before June 30 and December 31 of each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of a date not more than 15 days
prior to the delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished,
in each case to the extent such information is in the possession or control of
the corporation and has not otherwise been received by the Trustee in its
capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than May 15 in each calendar year,
commencing after the first issuance of Securities under this Indenture or May
15, 2000, whichever is later.
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(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange or delisted
therefrom.
SECTION 7.4. Reports by Company.
The Company shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of Trust Indenture Act Section
314(a). Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(1) if the Company shall consolidate with or merge into another Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, the corporation formed by such consolidation or into which the
Company is merged or the Person that acquires by conveyance or transfer, or that
leases, the properties and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust organized and existing under the
laws of the United States of America or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and interest
(including any Additional Interest) on all the Securities of every series and
the performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
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(2) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and any such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee, subject to Section 6.1,
may rely upon such Officers' Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section 8.1.
SECTION 8.2. Successor Company Substituted.
Upon any consolidation or merger by the Company with or into any other
Person, or any conveyance, transfer or lease by the Company of its properties
and assets substantially as an entirety to any Person in accordance with Section
8.1, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; and in the event of any such
conveyance, transfer or lease the Company shall be discharged from all
obligations and covenants under the Indenture and the Securities.
Such successor Person may cause to be executed, and may issue either in
its own name or in the name of the Company, any or all of the Securities
issuable hereunder that theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor Person
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities that previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication pursuant to such
provisions and any Securities that such successor Person thereafter shall cause
to be executed and delivered to the Trustee on its behalf for the purpose
pursuant to such provisions. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee or to surrender any right or power herein conferred
upon the Company; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of the
series specified) or to surrender any right or power herein conferred upon
the Company; or
(5) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are expressly
being included solely for the benefit of the series specified); or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall (a) become effective
only when there is no Security Outstanding of any series created prior to
the execution of such supplemental indenture that is entitled to the
benefit of such provision or (b) not apply to any Outstanding Securities;
or
(7) to cure any ambiguity, to correct or supplement any provision
herein that may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this clause (7) shall not adversely affect the interest of the Holders
of Securities of any series in any material respect or, in the case of the
Securities of a series issued to an Issuer Trust and for so long as any of
the corresponding series of Preferred Securities issued by such Issuer
Trust shall remain outstanding, the holders of such Preferred Securities;
or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
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administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order to
effect or maintain qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security of each series affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
interest (including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of principal of a Discount
Security that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, or change the place of payment where,
or the coin or currency in which, any Security or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in aggregate principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.5, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Security affected thereby;
provided, further, that, in the case of the Securities of a series issued to an
Issuer Trust, so long as any of the corresponding series of Preferred Securities
issued by such Issuer Trust remains outstanding, (i) no such amendment shall be
made that adversely affects the holders of such Preferred Securities in any
material respect, and no termination of this Indenture shall occur, and no
waiver of any Event of Default or compliance with any covenant under this
Indenture shall be effective, without the prior consent of the holders of at
least a majority of the aggregate Liquidation Amount (as defined in the related
Trust Agreement) of such Preferred Securities then outstanding unless and until
the principal of (and premium, if any, on) the Securities of such series and all
accrued and (subject to Section 3.12) unpaid interest (including any Additional
Interest) thereon have been paid in full, and (ii) no amendment shall be made to
Section 5.8 of this Indenture that would impair the rights of the holders of
Preferred Securities issued by any Issuer Trust provided therein without the
prior consent of the holders
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of each such Capital Security then outstanding unless and until the principal of
(and premium, if any, on) the Securities of such series and all accrued and
(subject to Section 3.12) unpaid interest (including any Additional Interest)
thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or any corresponding
series of Preferred Securities of an Issuer Trust that holds the Securities of
any series, or that modifies the rights of the Holders of Securities of such
series or holders of such Preferred Securities of such corresponding series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series or
holders of Preferred Securities of any other such corresponding series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in conclusively relying
upon, an Officers' Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent herein provided for relating to
such action have been complied with. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that affects the Trustee's own
rights, duties, indemnities or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
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Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (including any Additional Interest) on the Securities of
that series in accordance with the terms of such Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company initially appoints the Trustee, acting through its
Corporate Trust Office, as its agent for said purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain such office
or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes, may from time to time rescind such designations, and may act
as its own Paying Agent; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation and any change in the location of any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any, an) or interest on any of the Securities of
such series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee in writing
of its failure so to act.
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Whenever the Company shall have one or more Paying Agents, it will, prior
to 10:00 a.m., New York City time, on each due date of the principal of (or
premium, if any) or interest (including any Additional Interest) on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest (including any Additional Interest) so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal (and premium, if any) or interest (including any
Additional Interest), and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest (including any Additional Interest) on
the Securities of a series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Company
(or any other obligor upon such Securities) in the making of any payment
of principal (and premium, if any) or interest (including any Additional
Interest) in respect of any Security of any Series;
(3) at any time during the continuance of any default with respect
to a series of Securities, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent with respect to such series; and
(4) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company in trust for the payment of the principal of (and premium, if any)
or interest (including any Additional Interest) on any Security and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be paid
on Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such
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repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate covering the preceding calendar year, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the
performance, observance or fulfillment of or compliance with any of the terms,
provisions, covenants and conditions of this Indenture, and if the Company shall
be in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge. For the purpose of this Section 10.4, compliance
shall be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Preferred Securities specified in
Section 9.2, if any, the Company may omit in any particular instance to comply
with any covenant or condition provided pursuant to Section 3.1, 9.1(3) or
9.1(4) with respect to the Securities of any series, if before or after the time
for such compliance the Holders of at least a majority in aggregate principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company in
respect of any such covenant or condition shall remain in full force and effect.
SECTION 10.6. Additional Sums.
In the case of the Securities of a series initially issued to an Issuer
Trust, so long as no Event of Default has occurred and is continuing and except
as otherwise specified as contemplated by Section 2.1 or Section 3.1, if (i) an
Issuer Trust is the Holder of all of the Outstanding Securities of such series,
and (ii) a Tax Event described in clause (i) or (iii) in the definition of Tax
Event in Section 1.1 hereof has occurred and is continuing in respect of such
Issuer Trust, the Company shall pay to such Issuer Trust (and its permitted
successors or assigns under the related Trust Agreement) for so long as such
Issuer Trust (or its permitted successor or assignee) is the registered holder
of the Outstanding Securities of such series, such additional sums as may be
necessary in order that the amount of Distributions (including any Additional
Amounts (as defined in such Trust Agreement)) then due and payable by such
Issuer Trust on the related Preferred Securities and Common Securities that at
any time remain outstanding in accordance with the terms thereof shall not be
reduced as a result of any Additional Taxes arising from such Tax Event (the
"Additional Sums"). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of or interest on the
Securities, such mention shall be deemed to include mention of the payments of
the Additional
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Sums provided for in this paragraph to the extent that, in such context,
Additional Sums are, were or would be payable in respect thereof pursuant to the
provisions of this paragraph and express mention of the payment of Additional
Sums (if applicable) in any provisions hereof shall not be construed as
excluding Additional Sums in those provisions hereof where such express mention
is not made; provided, however, that the deferral of the payment of interest
pursuant to Section 3.12 or the Securities shall not defer the payment of any
Additional Sums that may be due and payable.
SECTION 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities of each
series that it shall not (x) declare or pay any dividends or distributions on,
or redeem purchase, acquire or make a liquidation payment with respect to, any
shares of the Company's capital stock, or (y) make any payment of principal of
or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with or junior in
interest to the Securities of such series make any guarantee payments with
respect to any guarantee by the Issuer of the debt securities of any subsidiary
if such guarantee ranks pari passu in all respects with or junior in interest to
the Securities of such series (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of an exchange or conversion of any class or series of the
Company's capital stock (or any capital stock of a Subsidiary of the Company)
for any class or series of the Company's capital stock or of any class or series
of the Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, or (d) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari passu with
or junior to such stock) if at such time (i) there shall have occurred any event
(A) of which the Company has knowledge that with the giving of notice or the
lapse of time, or both, would constitute an Event of Default with respect to the
Securities of such series, and (B) which the Company shall not have taken
reasonable steps to cure, (ii) if the Securities of such series are held by an
Issuer Trust, the Company shall be in default with respect to its payment of any
obligations under the Guarantee Agreement relating to the Preferred Securities
issued by such Issuer Trust, or (iii) the Company shall have given notice of its
election to begin an Extension Period with respect to the Securities of such
series as provided herein and shall not have rescinded such notice, or such
Extension Period, or any extension thereof, shall be continuing.
The Company also covenants with each Holder of Securities of a series
issued to an Issuer Trust (i) to hold, directly or indirectly, 100% of the
Common Securities of such Issuer Trust, provided that any permitted successor of
the Company hereunder may succeed to the Company's ownership of such Common
Securities, (ii) as holder of such Common Securities, not to voluntarily
terminate, wind-up or liquidate such Issuer Trust, other than (a) in connection
with a distribution of the Securities of such series to the holders of the
related Preferred Securities in liquidation of such Issuer Trust, or
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(b) in connection with certain mergers, consolidations or amalgamations
permitted by the related Trust Agreement, and (iii) to use its reasonable
efforts, consistent with the terms and provisions of such Trust Agreement, to
cause such Issuer Trust to continue not to be taxable as a corporation for
United States federal income tax purposes.
SECTION 10.8. Original Issue Discount.
For each year during which any Securities that were issued with original
issue discount are Outstanding, the Company shall furnish to each Paying Agent
in a timely fashion such information as may be reasonably requested by each
Paying Agent in order that each Paying Agent may prepare the information which
it is required to report for such year on Internal Revenue Service Forms 1096
and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as
amended. Such information shall include the amount of original issue discount
includible in income for each $25 of principal amount at Stated Maturity of
outstanding Securities during such year.
SECTION 10.9. Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as possible and in any
event within five days after the Company becomes aware of the occurrence of any
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the Company
proposes to take with respect thereto.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of a series shall be
subject to partial redemption only in the amount of $25 or any integral
multiples thereof.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 45 days prior to the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing and, in the case of Securities of a series held by an Issuer
Trust, the Property Trustee under the related Trust Agreement, of such date and
of the principal amount of Securities of the applicable series to be redeemed
and provide the additional information required to be included in the notice or
notices contemplated by Section 11.4; provided that in the case of any series
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of Securities initially issued to an Issuer Trust, for so long as such
Securities are held by such Issuer Trust, such notice shall be given not less
than 45 nor more than 75 days prior to such Redemption Date (unless a shorter
notice shall be satisfactory to the Property Trustee under the related Trust
Agreement). In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities,
the Company shall furnish the Trustee with an Officers' Certificate and an
Opinion of Counsel evidencing compliance with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
The Trustee shall promptly notify the Company in writing of the Securities
selected for partial redemption and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security that has been or is to be redeemed.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
the address of such Holder as it appears in the Securities Register, provided
that in the case of any series of Securities initially issued to an Issuer
Trust, for so long as such Securities are held by such Issuer Trust, such notice
shall be given not less than 45 nor more than 75 days prior to such Redemption
Date (unless a shorter notice shall be satisfactory to the Property Trustee
under the related Trust Agreement).
With respect to Securities of each series to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price cannot be calculated
prior to the time the notice is required to be sent, the estimate of the
Redemption Price together with a statement that it is an estimate and that the
actual Redemption Price will be calculated on the third Business Day prior to
the Redemption Date (and if an estimate is provided, a further notice shall be
sent of the actual Redemption Price on the date that such Redemption Price is
calculated);
(c) if less than all Outstanding Securities of such particular series are
to be redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Securities to be redeemed;
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(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest (including
any Additional Interest) thereon, if any, shall cease to accrue on and after
said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price;
[(f) that the redemption is for a sinking fund, if such is the case;]
(g) such other provisions as may be required in respect of the terms of a
particular series of Securities, including CUSIP Numbers.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
The notice if mailed in the manner provided above shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice. In any
case, a failure to give such notice by mail or any defect in the notice to the
Holder of any Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date specified
in the notice of redemption given as provided in Section 11.4, the Company will
deposit with the Trustee or with one or more Paying Agents (or if the Company is
acting as its own Paying Agent, the Company will segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and any accrued interest (including any Additional Interest) on, all
the Securities (or portions thereof) that are to be redeemed on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4,
the Securities or portion of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment in said
notice specified, the said Securities or the specified portions thereof shall be
paid and redeemed by the Company at the applicable Redemption Price, together
with accrued interest (including any Additional Interest) to the Redemption
Date; provided, however, that, unless otherwise specified as contemplated by
Section 3.1, installments of interest (including any Additional Interest) whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant record dates according to their
terms and the provisions of Section 3.8.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new
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Security or Securities of the same series, of authorized denominations, in
aggregate principal amount equal to the unredeemed portion of the Security so
presented and having the same Original Issue Date, Stated Maturity and terms.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7. Right of Redemption of Securities Initially Issued to an
Issuer Trust.
In the case of the Securities of a series initially issued to an Issuer
Trust, except as otherwise specified as contemplated by Section 3.1, the
Company, at its option, may redeem such Securities (i) on or after the date
specified in such Security, in whole at any time or in part from time to time,
or (ii) upon the occurrence and during the continuation of a Tax Event or an
Investment Company Event, at any time within 90 days following the occurrence
and during the continuation of such Tax Event or Investment Company Event, in
whole (but not in part), in each case at a Redemption Price specified in such
Security, together with accrued interest (including any Additional Interest) to
the Redemption Date.
If less than all the Securities of any such series are to be redeemed, the
aggregate principal amount of such Securities remaining Outstanding after giving
effect to such redemption shall be sufficient to satisfy any provisions of the
Trust Agreement related to the Issuer Trust to which such Securities were
issued, including any requirement in such Trust Agreement as to the minimum
Liquidation Amount (as defined in such Trust Agreement) of Preferred Securities
that may be held by a holder of Preferred Securities thereunder.
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any sinking fund payment in excess of such minimum amount
that is permitted to be made by the terms of such Securities of any series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of any Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of such Securities.
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SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company may at its option, at
any time no more than 16 months and no less than 45 days prior to the date on
which such sinking fund payment is due, deliver to the Trustee Securities of
such series (together with the unmatured coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Securities of
such series that have been redeemed through the application of mandatory or
optional sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, that is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and will also deliver to the
Trustee any Securities to be so delivered. Such Officers' Certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the
succeeding sinking fund payment date. In the case of the failure of the Company
to deliver such Officers' Certificate (or, as required by this Indenture, the
Securities and coupons, if any, specified in such Officers' Certificate) by the
due date therefor, the sinking fund payment due on the succeeding sinking fund
payment date for such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Securities of such series
subject to a mandatory sinking fund payment without the right to deliver or
credit securities as provided in Section 12.2 and without the right to make the
optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by the Company if the Company is acting as its own Paying Agent) on the sinking
fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such
series at the Redemption Price specified in such Securities with respect to the
sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee
(or, if the Company is acting as its own Paying Agent, segregated and held in
trust by the Company as provided in Section 10.3) for such series and together
with such payment (or such amount so segregated) shall be applied in accordance
with the provisions of this Section 12.3. Any and all sinking fund moneys with
respect to the Securities of any particular series
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held by the Trustee (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 10.3) on the last sinking
fund payment date with respect to Securities of such series and not held for the
payment or redemption of particular Securities of such series shall be applied
by the Trustee (or by the Company if the Company is acting as its own Paying
Agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of the
Securities of such series at Maturity. The Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 11.3 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 11.4.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section 11.6. On or before each
sinking fund payment date, the Company shall pay to the Trustee (or, if the
Company is acting as its own Paying Agent, the Company shall segregate and hold
in trust as provided in Section 10.3) in cash a sum in the currency in which
Securities of such series are payable (except as provided pursuant to Section
3.1) equal to the principal (and premium, if any) and any interest (including
any Additional Interest) accrued to the Redemption Date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 12.3.
Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any Securities of
such series or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to the Securities of such
series, except that if the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee (or the Company, if the
Company is then acting as its own Paying Agent) shall redeem such Securities if
cash sufficient for that purpose shall be deposited with the Trustee (or
segregated by the Company) for that purpose in accordance with the terms of this
Article XII. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any such default or Event of Default shall occur and any moneys
thereafter paid into such sinking fund shall, during the continuance of such
default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; provided, however, that in case
such default or Event of Default shall have been cured or waived herein, such
moneys shall thereafter be applied on the next sinking fund payment date for the
Securities of such series on which such moneys may be applied pursuant to the
provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest (including any Additional Interest) on
each and all of the Securities of each and every series are hereby expressly
made subordinate and subject in right of payment to the prior payment in full of
all Senior Indebtedness.
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SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment Over
of Proceeds Upon Dissolution, Etc.
If the Company shall default in the payment of any principal of (or
premium, if any) or interest on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, upon written notice of such
default to the Company by the holders of Senior Indebtedness or any trustee
therefor, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of (or premium, if any) or interest (including any
Additional Interest) on any of the Securities, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the Securities.
In the event of (a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceedings relating
to the Company, its creditors or its property, (b) any proceeding for the
liquidation, dissolution or other winding up of the Company, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings, (c)
any assignment by the Company for the benefit of creditors or (d) any other
marshalling of the assets of the Company (each such event, if any, herein
sometimes referred to as a "Proceeding"), all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made to any Holder of any of the
Securities on account thereof. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities, to the
payment of all Senior Indebtedness at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), which would otherwise (but for these subordination provisions) be
payable or deliverable in respect of the Securities of any series shall be paid
or delivered directly to the holders of Senior Indebtedness in accordance with
the priorities then existing among such holders until all Senior Indebtedness
(including any interest thereon accruing after the commencement of any
Proceeding) shall have been paid in full.
In the event of any Proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the Holders of the Securities, together
with the holders of any obligations of the Company ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
(and premium, if any) and interest on the Securities and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
the Company ranking junior to the Securities and such other obligations. If,
notwithstanding the foregoing, any payment or distribution of any character or
any security, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), shall be
received by
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the Trustee or any Holder in contravention of any of the terms hereof and before
all Senior Indebtedness shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the Senior
Indebtedness at the time outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
The Trustee and the Holders shall take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Indebtedness or consent to the filing of a financing statement with respect
hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Indebtedness at the time outstanding,
be necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
The provisions of this Section 13.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
SECTION 13.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time, except during the
pendency of the conditions described in the first paragraph of Section 13.2 or
of any Proceeding referred to in Section 13.2, from making payments at any time
of principal of (and premium, if any) or interest (including any Additional
Interest) on the Securities, or (b) the application by the Trustee of any moneys
deposited with it hereunder to the payment of or on account of the principal of
(and premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on all
Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Company that by its express terms is subordinated to
Senior Indebtedness of the Company to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to the rights
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of the holders of such Senior Indebtedness to receive payments and distributions
of cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest (including any Additional
Interest) on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as between the Company and the Holders of the Securities,
the obligations of the Company, which are absolute and unconditional, to pay to
the Holders of the Securities the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
(or to the extent expressly provided herein, the holder of any Capital Security)
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, including filing and voting claims in any Proceeding,
subject to the rights, if any, under this Article of the holders of Senior
Indebtedness to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Indebtedness may, at any time and from to time,
without the consent of or notice to the Trustee or the Holders of the Securities
of any series, without incurring responsibility to such Holders
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of the Securities and without impairing or releasing the subordination provided
in this Article or the obligations hereunder of such Holders of the Securities
to the holders of Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 13.8. Notice to Trustee.
The Company shall give prompt written notice to a Responsible Officer of
the Trustee of any fact known to the Company that would prohibit the making of
any payment to or by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, agent or representative therefor; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by the
terms hereof any monies may become payable for any purpose (including, the
payment of the principal of (and premium, if any, on) or interest (including any
Additional Interest) on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
or herself to be a holder of Senior Indebtedness (or a trustee or
attorney-in-fact therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee or attorney-in-fact therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to conclusively rely upon any order
or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or
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distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness that may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
SECTION 13.12. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
* * * *
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[Insert this Article if Citadel Broadcasting Company is the issuer of
the Securities]
ARTICLE XIV
GUARANTEE OF OBLIGATIONS OF THE COMPANY
SECTION 14.1. Guarantee.
The Guarantor, pursuant to the terms of the Guarantee set forth in this
Article IV (this "Guarantee"), irrevocably and unconditionally guarantees to the
Trustee (for its own benefit and the benefit of the Holders) and the Holders,
and agrees to pay in full, perform and observe, from time to time the due and
punctual payment, observance and performance of all of the Guaranteed
Obligations (without duplication of amounts theretofore paid by the Company), in
accordance with their respective terms and as and when due (whether at maturity,
by reason of acceleration or otherwise, but after giving effect to a valid
extension of an interest payment period by the Company pursuant to the terms of
the Securities), regardless of any defense, right of set-off or counterclaim
which the Company may have or assert. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Company to pay such amounts to
the Holders.
SECTION 14.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of and reliance on this
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Company
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands, diligence and all other defenses under applicable law that would, but
for this Section 14.02, be available to the Guarantor as a defense against or a
reduction of its obligations hereunder.
SECTION 14.3. Obligations Not Affected.
(a) The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(1) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Company of the
Guaranteed Obligations or any discharge, disallowance,
invalidity, illegality, voidness or other unenforceability
thereof;
(2) the extension of time for the payment by the Company
of all or any portion of the interest, principal or premiums, if
any, or any
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other sums payable in respect of the Guaranteed Obligations
(other than as provided in Section [ ] hereof with respect to an
extension of time for payment of interest during an Extension
Period) or any increase in the principal of, or interest rate
applicable to, the Securities;
(3) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders in respect of
the Guaranteed Obligations or any action on the part of the
Holders granting indulgence or extension of any kind;
(4) the voluntary or involuntary liquidation, termination,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Company or any of the assets
of the Company;
(5) any invalidity of, or defect or deficiency in, the
Guaranteed Obligations;
(6) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred;
(7) any termination of or change in any relationship
between the Company and the Guarantor, including any resulting
from a change in the ownership of the Company; or
(8) to the extent permitted by law, any other circumstance
whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this
Section [ ] that the obligations of the Guarantor hereunder shall
be irrevocable, absolute and unconditional under any and all
circumstances.
(b) There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 14.4. Prohibition on Distributions, Etc.
If (i) there shall have occurred any event of which the Company has
actual knowledge that (a) with the giving of notice or the lapse of time, or
both, would constitute an Event of Default with respect to any series of
Securities and (b) in respect of which the Company shall not have taken
reasonable steps to cure and (ii) the Guarantor defaults in the performance of
the Guaranteed Obligations, the Guarantor shall not, directly or indirectly
through a Subsidiary, (aa) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its Capital Stock, (bb) make any payment of principal, interest or premium, if
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any, on or repay, repurchase or redeem any of its debt securities under this
Guarantee, or (cc) make any guarantee payments with respect to any guarantee
issued by the Guarantor if such guarantee ranks pari passu with or junior in
interest to the Guarantor's obligations under this Guarantee (other than (x)
dividends or distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of its common stock and exchanges or
conversions of common stock of one class for common stock of another class, (y)
payments by the Guarantor under any Trust Guarantee Agreement (as defined in the
HECO Junior Indenture) and pursuant to this Guarantee, and (z)purchases by the
Guarantor of its common stock required to prevent the loss or secure the renewal
or reinstatement of any government license or franchise held by the Guarantor).
SECTION 14.5. Rights of Holders.
(a) The Guarantor expressly acknowledges that: (i) this Guarantee
set forth in this Article 11 is for the benefit of the Trustee
(for its own benefit and the benefit of the Holders) and the
Holders; (ii) the Trustee has the right to enforce this
Guarantee on behalf of the Holders; (iii) the Holders of a
majority in aggregate principal amount of the Securities have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee in respect of
this Guarantee or exercising any trust or power conferred upon
the Trustee under this Guarantee.
(b) If the Trustee fails to enforce its rights under this Guarantee
after a Holder has made a written request, such Holder may
institute a legal proceeding directly against the Guarantor to
enforce the Trustee's rights under this Guarantee, without first
instituting a legal proceeding against the Company, the Trustee
or any other Person or entity. Notwithstanding the foregoing, if
the Guarantor has failed to make a Guarantee Payment, a Holder
may for enforcement of the Guarantee of such payment. The
Guarantor waives any right or remedy to require that any action
be brought first against the Company, the Trustee or any other
Person or entity before proceeding directly against the
Guarantor.
SECTION 14.6. Guarantee of Payment.
This Guarantee creates a guarantee of payment and not of collection.
This Guarantee will not be discharged except by payment of the Guarantee
Payments in full (without duplication of amounts theretofore paid by or on
behalf of the Trust pursuant to the Trust Agreement) or upon distribution of the
HECO Distributable Securities to Holders as provided in the Trust Agreement.
SECTION 14.7. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Company in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee and shall have the right to waive payment by the
Company's subsidiaries
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pursuant to Section 11.01 hereof; provided, however, that the Guarantor shall
not (except to the extent required by mandatory provisions of law) be entitled
to enforce or exercise any rights which it may acquire by way of subrogation or
any indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Guarantee, until the prior payment, observance and
performance in full of the Guaranteed Obligations. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.
SECTION 14.8. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Company with respect to the Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to pay,
observe and perform the Guaranteed Obligations pursuant to the terms of this
Guarantee notwithstanding the occurrence of any event referred to in subsections
(a)(1) and (a)(8), , inclusive, of Section 11.03.
SECTION 14.9. Subordination.
This Guarantee shall constitute an unsecured obligation of the Guarantor
and shall rank subordinate and junior in right of payment to all general
liabilities of the Guarantor.
SECTION 14.10. Pari Passu Guarantees.
This Guarantee shall rank pari passu with any similar guarantee
agreements issued by the Guarantor on behalf of the holders of securities
similar to any series of Securities issued by any subsidiary of the Guarantor in
the past or future.
SECTION 14.11. Termination.
This Guarantee shall terminate, with respect to any series of
Securities, upon the payment in full of the Guaranteed Payments with respect to
such series of Securities. Notwithstanding the foregoing, this Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder of Securities of any series must restore payment of any sums
paid under such Securities or under this Guarantee or any payment, observance or
performance of any of the Guaranteed Obligations with respect to such series of
Securities is otherwise recovered from or paid over by or for the account of the
Trustee or the Holders for any reason, including as a preference or fraudulent
transfer, whether effected by judgment, decree or order of any governmental
authority, by any plan of reorganization or by any settlement or compromise.
SECTION 14.12. Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any
Covered Person for any
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loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such
information, opinions, reports or statement presented to the
Guarantor by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable
care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of
the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
principal, interest or other payments to Holders might properly
be paid.
SECTION 14.13. Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense, including taxes (other than taxes based on the income
of such Indemnified Person) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 11.13 shall survive the termination of
this Guarantee or the earlier resignation or removal of the Trustee.]
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
[NAME OF COMPANY]
By:
-----------------------------------
Name:
Title:
Attest:
-----------------------------
THE BANK OF NEW YORK,
as Trustee and not in its individual
capacity
By:
-----------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.12
DEPOSITARY AGREEMENT
DEPOSITARY AGREEMENT dated as of __________ among CITADEL
COMMUNICATIONS CORPORATION, a Nevada corporation, __________, a [national
banking association], and the holders from time to time of the Depositary Shares
described herein.
WHEREAS it is desired to provide, as hereinafter set forth in
this Depositary Agreement, for the deposit of shares of _____ Preferred Stock,
Series __, $.01 par value, of CITADEL COMMUNICATIONS CORPORATION with the
Depositary (as hereinafter defined) for the purposes set forth in this
Depositary Agreement and for the issuance hereunder of Receipts (as hereinafter
defined) evidencing Depositary Shares (as hereinafter defined) in respect of the
Stock (as hereinafter defined) so deposited.
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Depositary
Agreement and the Receipts:
"Certificate" shall mean the certificate of designations filed
with the Secretary of State of Nevada establishing the Stock as a series of
preferred stock of the company.
"Company" shall mean Citadel Communications Corporation, a
Nevada corporation, and its successors.
"Depositary Agreement" shall mean this Depositary Agreement,
as amended or supplemented from time to time.
"Depositary" shall mean __________, a [national banking
association], and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing a one-[half] interest in a share of the Stock and evidenced by a
Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary
at __________, __________, __________, at which at any particular time its
depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued
hereunder, whether in definitive or temporary form.
<PAGE> 2
"Record Holder" as applied with respect to a Depositary Share
shall mean the person in whose name a Receipt evidencing such Depositary Share
is registered on the books of the Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall
be appointed to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's _____ Preferred
Stock, Series __, $.01 par value.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
2.1 Form and Transfer of Receipts. Definitive Receipts shall
be engraved or printed or lithographed and shall be substantially in the form
set forth in Exhibit A annexed to this Depositary Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company delivered in compliance with Section 2.2, shall execute and deliver
temporary Receipts which are printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are issued,
the Company and the Depositary will cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon surrender
of the temporary Receipts at an office described in the third paragraph of
Section 2.2, without charge to the holder. Upon surrender for cancellation of
any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Depositary Agreement, and with respect to the
Stock, as definitive Receipts. Receipts shall be executed by the Depositary by
the manual signature of a duly authorized officer of the Depositary; provided,
that such signature may be a facsimile if a Registrar for the Receipts (other
than the Depositary) shall have been appointed and such Receipts are
countersigned by manual signature of a duly authorized officer of the Registrar.
No Receipt shall be entitled to any benefits under this Depositary Agreement or
be valid or obligatory for any purpose unless it shall have been executed
manually by a duly authorized officer of the Depositary or, if a Registrar for
the Receipts (other than the Depositary) shall have been appointed, by facsimile
signature of a duly authorized officer of the Depositary and countersigned
manually by a duly authorized officer of such Registrar. The Depositary shall
record on its books each Receipt so signed and delivered as hereinafter
provided.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Depositary Agreement as may be required by the Company or the Depositary
or required to comply with any applicable law or any regulation thereunder or
with the rules and regulations of any securities exchange upon which the Stock,
the Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until transfer of a Depositary
Share shall be registered on the books
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<PAGE> 3
of the Depositary as provided in Section 2.4, the Depositary may,
notwithstanding any notice to the contrary, treat the Record Holder thereof at
such time as the absolute owner thereof for the purpose of determining the
person entitled to distributions of dividends or other distributions or to any
notice provided for in this Depositary Agreement and for all other purposes.
2.2 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Depositary
Agreement, the Company may from time to time deposit shares of Stock under this
Depositary Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied, if
required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Depositary Agreement, and together with a written order of
the Company directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office or at
such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and upon
recordation of the Stock so deposited on the books of the Company in the name of
the Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Depositary Agreement, shall execute and deliver, to or upon
the order of the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a Receipt or
Receipts for the number of Depositary Shares relating to the Stock so deposited
and registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
__________ shares of Stock.
2.3 Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such proposed redemption, by first class mail, postage prepaid
not less than 40 or more than 70 days prior to the date fixed for redemption of
Stock in accordance with Section ____ of the Certificate. On the date of such
redemption, provided that the Company shall then have paid in full to the
Depositary the redemption price of the Stock to be redeemed, plus any accrued
and unpaid dividends thereon, the Depositary shall redeem the Depositary Shares
relating to such Stock. The Depositary shall mail notice of such redemption and
the proposed simultaneous redemption of the number of Depositary Shares relating
to the Stock to be redeemed, by first-class mail, postage prepaid, not less than
30 and not more than 60 days prior to the date fixed for redemption of such
Stock and Depositary Shares (the "Redemption Date"), to the Record Holders of
the Depositary Shares to be so redeemed, at the addresses of such holders as
they appear on the records of the Depositary; but neither failure to mail any
such notice to one or more such holders nor any defect in any notice to one or
more such holders shall affect the sufficiency of the proceedings for redemption
as to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock underlying the Depositary Shares to be redeemed will cease
to accrue and accumulate at the close of business on such Redemption Date. In
case less than all the outstanding Depositary Shares are to be redeemed, the
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<PAGE> 4
Depositary Shares to be so redeemed shall be selected by lot, pro rata or such
other method as may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Company shall have failed to redeem
the shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the
Depositary Shares so called for redemption shall cease to accrue and accumulate,
the Depositary Shares being redeemed from such proceeds shall be deemed no
longer to be outstanding, all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall, to
the extent of such Depositary Shares, cease and terminate and, upon surrender in
accordance with such notice of the Receipts evidencing any such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the Depositary at a
redemption price per Depositary Share equal to the proportionate part of the
redemption price per share paid in respect of the shares of Stock plus all money
and other property, if any, paid with respect to such Depositary Shares,
including all amounts paid by the Company in respect of dividends which on the
Redemption Date have accumulated on the shares of Stock to be so redeemed and
have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
2.4 Registration of Transfers of Receipts. Subject to the
terms and conditions of this Depositary Agreement, the Depositary shall register
on its books from time to time transfers of Depositary Shares upon any surrender
of the Receipt or Receipts evidencing such Depositary Shares by the holder in
person or by duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer. Thereupon the Depositary shall execute
a new Receipt or Receipts evidencing the same aggregate number of Depositary
Shares as those evidenced by the Receipt or Receipts surrendered and deliver
such new Receipt or Receipts to or upon the order of the person entitled
thereto.
2.5 Split-ups and Combinations of Receipts; Surrender of
Depositary Shares and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up of combination of such Receipt or
Receipts, and subject to the terms and conditions of this Depositary Agreement,
the Depositary shall execute and deliver a new Receipt or Receipts in the
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
Any holder of Depositary Shares may withdraw the number of
whole shares of Stock underlying such Depositary Shares and all money and other
property, if any, underlying such Depositary Shares by surrendering Receipts
evidencing such Depositary Shares at the Depositary's Office or at such other
offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
underlying the Depositary Shares so surrendered for withdrawal, but holders of
such whole shares of Stock will not thereafter be entitled to deposit such Stock
hereunder or to receive Receipts evidencing Depositary Shares therefor. If a
Receipt delivered by a holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares relating to other than a
number of whole shares of Stock, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Section 3.2) upon his order, a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the Stock and money and other property being
withdrawn may be made by delivery of such certificates, documents of title and
other instruments as the Depositary may deem appropriate.
4
<PAGE> 5
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the Record Holder of the
Depositary Shares evidenced by the Receipts being surrendered for withdrawal of
stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer.
Delivery of the Stock and money and other property, if any,
underlying the Depositary Shares surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Depositary Shares and for the account of
such holder, such delivery may be made at such other place as may be designated
by such holder.
2.6 Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Depositary
Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary Shares
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Depositary
Agreement.
2.7 Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, or the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
2.8 Cancellation and Destruction of Surrendered Receipt. All
Receipts surrendered to the Depositary or any Depositary's agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE 3
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
3.1 Filing Proofs, Certificates and Other Information. Any
holder of a Depositary Share may be required from time to time to file such
proof of residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Depositary Share or the withdrawal of any Stock
underlying Depositary Shares or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof
5
<PAGE> 6
until such proof or other information is filed or such certificates are executed
or such representations and warranties are made.
3.2 Payment of Taxes or Other Governmental Charges. Holders of
Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.7. Registration of
transfer of any Depositary Share or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share may be refused
until any such payment due is made, and any dividends or other distributions may
be withheld or all or any part of the Stock or other property relating to such
Depositary Shares and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder prior
to such sale), and such dividends or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Depositary Share remaining liable for any deficiency.
3.3 Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of the
Stock and the issuance of the Receipts.
ARTICLE 4
THE DEPOSITED SECURITIES; NOTICES
4.1 Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to the Record Holders of Depositary
Shares on the record date fixed pursuant to Section 4.4 such amounts of such
dividend or distributions as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares held by such holders; provided, however,
that in case the Company or the Depositary shall be required to withhold and
shall withhold from any cash dividend or other cash distribution in respect of
the Stock an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for distribution,
as the case may be, only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part of the next
sum received by the Depositary for distribution to Record Holders or Depositary
Shares then outstanding.
4.2 Distributions Other than Cash. Whenever the Depositary
shall receive any distribution other than cash on the Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to the Record Holders of
Depositary Shares on the record date fixed pursuant to Section 4.4 such amounts
of the securities or property received by it as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such Record Holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or governmental charge) the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part hereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2, be distributed or made available for
distribution, as the case may be, by the Depositary to the Record Holders of
Depositary Shares entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such securities unless the Company shall have provided an opinion of counsel to
the effect that such securities have been registered under the Securities Act of
1933 or do not need to be registered.
6
<PAGE> 7
4.3 Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Depositary Shares in such manner as the Depositary may
determine, either by the issue to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Depositary Shares by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Depositary Shares who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be distributed
by the Depositary to the Record Holders of Depositary Shares entitled thereto as
provided by Section 4.1 in the case of a distribution received in cash. The
Company shall not make any distribution of such rights, preferences or
privileges unless the Company shall have provided an opinion of counsel to the
effect that such rights, preferences or privileges have been registered under
the Securities Act of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate is required in
order for holders of Depositary Shares to be offered or sold the securities to
which such rights, preferences or privileges relate, the Company agrees with the
Depositary that it will file promptly a registration statement pursuant to such
Act with respect to such rights, preferences or privileges and securities to use
its best efforts to take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holder of Depositary Shares any right, preference or privilege
to subscribe for or to purchase any securities unless and until such a
registration statement shall have become effective, or unless the offering and
sale of such securities to such holders are exempt from registration under the
provision of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
holders of Depositary Shares, the Company agrees with the Depositary that the
Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
4.4 Notice of Dividends, etc. Fixing of Record Date for
Holders of Depositary Shares. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered, with
respect to the Stock, or whenever the Depositary shall receive notice of any
meeting at which holders of Stock are entitled to vote, or of which holders of
Stock are entitled to notice, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the holders of
Depositary Shares who shall be entitled to receive a distribution in respect of
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting, or who shall be entitled to receive notice of such
meeting.
4.5 Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the Record Holders of Depositary Shares a
notice which shall contain (i) such information as is contained in such notice
of meeting and (ii) a
7
<PAGE> 8
statement informing holders of Depositary Shares that they may instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
Stock underlying their respective Depositary Shares and a brief statement as to
the manner in which such instructions may be given. Upon the written request of
the holders of Depositary Shares on the record date established in accordance
with Section 4.4, the Depositary shall endeavor insofar as practicable to vote
or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of whole shares of Stock underlying the Depositary
Shares as to which any particular voting or consent instructions are received.
ARTICLE 5
MISCELLANEOUS
5.1 Counterparts. This Depositary Agreement may be executed in
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
5.2 Exclusive Benefit of Parties. This Depositary Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
5.3 Invalidity of Provisions. In case any one or more of the
provisions contained in this Depositary Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
5.4 Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at City Center West, Suite 400,
7201 West Lake Mead Boulevard, Las Vegas, Nevada 89128 to the attention of the
[Chief Financial Officer], or at any other address of which the Company shall
have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's office at __________ or
at any other address of which the Depositary shall have notified the Company in
writing.
Any and all notices to be given to any Record Holder of a
Depositary Share hereunder or under the Receipts shall be in writing and shall
be deemed to have been duly given if personally delivered or sent by mail or
telegram or telex confirmed by letter, addressed to such Record Holder at the
address of such Record Holder as it appears on the books of the Depositary, or
if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telex
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
telex message) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any telegram or telex message
received by it from the other or from any holder of a Depositary Share,
notwithstanding that such telegram or telex message shall not subsequently be
confirmed by letter or as aforesaid.
5.5 Depositary's Agents. The Depositary may from time to time,
with the prior written approval of the Company, appoint Depositary's Agents to
act in any respect for the Depositary for the purposes of
8
<PAGE> 9
this Depositary Agreement and may at any time appoint additional Depositary's
Agents and vary or terminate the appointment of such Depositary's Agents. The
Depositary will notify the Company of any such action.
5.6 Holders of Receipts Are Parties. The holders of Depositary
Shares from time to time shall be parties to this Depositary Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts
evidencing such Depositary Shares by acceptance of delivery thereof.
5.7 Governing Law. THIS DEPOSITARY AGREEMENT AND RECEIPTS AND
ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF [NEW
YORK].
5.8 Inspection of Depositary Agreement. Copies of this
Depositary Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the Depositary's
office and the respective offices of the Depositary's Agents, if any, by any
holder of a Depositary Share.
5.9 Headings. The headings of articles and sections in this
Depositary Agreement and in the form of Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as part of
this Depositary Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Depositary Agreement as of the day and year first above set forth,
and all holders of Depositary Shares shall become parties hereto by and upon an
acceptance by them of delivery of Receipts evidencing such Depositary Shares and
issued in accordance with the terms hereof.
CITADEL COMMUNICATIONS CORPORATION
By:
-------------------------------
[Name and Title]
[Name of Depositary]
By:
-------------------------------
Authorized Officer
9
<PAGE> 10
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
[GENERAL FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING __________ PREFERRED STOCK
CITADEL COMMUNICATIONS CORPORATION
Incorporated under the laws of the State of Nevada
This Depositary Receipt is transferable
in the City of __________
__________, as Depositary (the "Depositary"), hereby certifies
that __________ is the registered owner of __________ Depositary Shares
("Depositary Shares"), each Depositary Share representing __________ of one
share of __________ Preferred Stock, Series __, par value $.01 per share (the
"Stock"), of Citadel Communications Corporation, a Nevada corporation (the
"Company"), on deposit with the Depositary, subject to the terms and entitled to
the benefits of the Depositary Agreement dated as of __________, 199_ (the
"Deposit Agreement"), between the Company, the Depositary and all holders from
time to time of Depositary Receipts. By accepting this Depositary Receipt the
holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Depositary Agreement. This Depositary Receipt shall not be
valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer or, if executed in facsimile by
the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by the manual signature of a duly authorized officer
thereof.
Dated: Depositary
By:
-------------------------------
Authorized Officer
Registrar
By:
-------------------------------
[GENERAL FORM OF REVERSE OF RECEIPT]
Citadel Communications Corporation will furnish without charge
to each receiptholder who so requests a copy of the Depositary Agreement and a
statement or summary of the powers, designations, preferences and relative,
participating, option or other special rights of each class of stock or series
thereof which Citadel Communications Corporation is authorized to issue and the
qualifications, limitations or restrictions of such
<PAGE> 11
preferences and/or rights. Any such request is to be addressed to the Secretary
of Citadel Communications Corporation.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right survivorship
and not as tenants in common
[UNIF GIFT MIN ACT - __________ Custodian ____________
(Cust) (State)
Additional abbreviations may also be used though not in the
above list.
For value received, __________ hereby sell(s), assign(s) and
transfer(s) onto _________ (Please insert social security or other
identifying number of Assignee)
Please print or type Name and address including postal Zip Code of
Assignee
__________ Depositary Shares represented by the within receipt
and all rights thereunder, and do hereby irrevocably constitute and appoint
__________ Attorney to transfer said Depositary Shares on the books of the
within-named Depositary with full power of substitution in the premises.
Dated: __________
NOTICE: The signature to this assignment must correspond with the name as
written on the face of this instrument in every particular, without alteration
or enlargement or any change whatever.
A-2
<PAGE> 1
EXHIBIT 4.14
CITADEL COMMUNICATIONS CORPORATION
AND
-----------------------,
Warrant Agent
----------------------
WARRANT AGREEMENT
----------------------
Providing for the Issuance of
% [Notes/Debentures] Due Purchase Warrants
Dated as of ____________
WARRANT AGREEMENT
THIS WARRANT AGREEMENT is entered into as of ________, between Citadel
Communications Corporation, a corporation incorporated under the laws of Nevada
corporation (the "Company") and ______________, a ________ incorporated under
the laws of ____________ (the "Agent").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue ____ Warrants (as hereinafter
defined), each Warrant entitling the registered owner thereof to purchase ___%
[Notes/Debentures] Due ______ (as hereinafter defined) of the Company at the
price and upon the terms and conditions herein set forth; and
WHEREAS, the Company is duly authorized to issue the Warrants as herein
provided; and
WHEREAS, all things necessary have been done and performed to make the
Warrants when duly authenticated by the Agent and issued as in this Agreement
provided legal and valid and binding upon the Company with the benefits and
subject to the terms of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that for good and valuable
consideration mutually given and received, the receipt and sufficiency
whereof is hereby acknowledged, it is hereby agreed and declared as
follows:
<PAGE> 2
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Except as otherwise expressly provided or
unless the context otherwise requires, the terms defined in this Section 1.1
shall for all purposes of this Agreement, have the meanings herein specified,
the following definitions to be equally applicable to both the singular and
plural forms of any of the terms herein defined:
"Agent" shall mean _____________, a _________ incorporated under the
laws of ____________ or its lawful successors from time to time appointed in
accordance with this Agreement.
"Agreement" shall mean this Warrant Agreement between the Company and
the Agent, as such agreement is originally executed or as it may from time to
time be supplemented, modified or amended as provided herein.
"Business Day" shall mean each Monday. Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York
are authorized or obliged by law or executive order to close.
"Company" shall mean Citadel Communications Corporation, a Delaware
corporation, until a successor entity shall have become such pursuant to the
applicable provisions of this Agreement and thereafter the term "Company" shall
mean such successor entity.
"Event of Default" shall mean any event specified as such in Section
6.1 hereof. An Event of Default shall "exist" if an Event of Default shall have
occurred and be continuing.
"Exercise Date" shall mean each date during the Exercise Period on
which [Notes/Debentures] are purchased by a Registered Owner through the
exercise of all or a portion of its Warrants.
"Exercise Form" shall mean the form designated Exercise Form attached
as Annex II to each Warrant.
"Exercise Period" shall mean the period commencing at 9:00 A.M. (time)
on _____________, and ending at 4:00 P.M. (___________ time) on _____________,
_____.
"Exercise Price" shall have the meaning accorded such term in Section
2.1 of this Agreement.
"Indenture" shall mean that certain Indenture dated as of ___________
between the Company and ___________, as trustee, as such Indenture was
originally executed or as it may from time to time be supplemented, modified or
amended in accordance with the terms thereof.
"[Notes/Debentures]" means any or all, as the case may be, of the
Company's ___% [Notes/Debentures] Due ___________, authenticated and delivered
as provided in the Indenture.
"Notice of Intent to Exercise" shall have the meaning accorded thereto
in Section 4.1 of this Agreement. The form of Notice of Intent to Exercise is
attached as Annex I to each Warrant.
"Outstanding" when used with reference to the Warrants shall mean, as
of the date of determination, all Warrants theretofore authenticated and
delivered under this Agreement, except:
(a) Warrants theretofore canceled by the Agent or delivered to
the Agent for cancelation and
(b) Warrants in exchange for or in lieu of which other
Warrants shall have been authenticated and delivered under
this Agreement.
<PAGE> 3
"Person" shall mean an individual, a corporation, a partnership, a
joint venture, an association, a joint stock company, a trust, an unincorporated
organization, or a government or any agency, authority or political subdivision
thereof.
"Register" shall mean the books for the registration and transfer of
Warrants which books are kept by the Agent pursuant to Section 3.1 hereof.
"Time of Expiry" means 4:00 p.m., _________ time, on ____________,
19___.
"Warrantholders" or "Registered Owners" means the persons from time to
time who are Registered Owners of the Warrants.
"Warrantholders' Request" means an instrument signed in one or more
counterparts by the Warrantholders entitled to purchase in the aggregate not
less than a majority of the aggregate principal amount of [Notes/Debentures]
which could be purchased pursuant to all Warrants then Outstanding requesting
the Agent to take some action or proceeding specified therein.
"Warrants" means the ___% [Notes/Debentures] Due 200__ Purchase
Warrants issued hereunder pursuant to which Warrantholders have the right to
purchase [Notes/Debentures] on the terms and conditions herein set forth.
"Written Order of the Company" and "Written Consent of the Company"
mean, respectively, a written order or consent signed in the name of the Company
by any one of its officers and may consist of one or more instruments so
executed.
ARTICLE II
ISSUANCE OF WARRANTS
SECTION 2.1. ISSUANCE AND TERMS OF WARRANTS. The issuance of Warrants
entitling the Registered Owners thereof to purchase up to an aggregate of not
more than [U.S. $]_______ in principal amount of the [Notes/Debentures] is
hereby authorized. The Warrants are hereby designated as the "[Notes/Debentures]
Due Purchase Warrants." The Warrants shall be delivered by the Company to the
Agent to be authenticated by the Agent and delivered in accordance with the
Written Order of the Company. The Warrants shall be dated _________, ____ and
shall be issuable in fully registered form and in denominations that permit the
purchase upon exercise of [U.S. $]_______ principal amount of [Notes/Debentures]
and any integral multiples thereof.
The Warrants shall be exercisable on any Business Day during the
Exercise Period. Each Warrant in the denomination of [U.S. $] shall entitle the
Registered Owner thereof to exercise such Warrant in accordance with and
pursuant to the terms thereof for the purchase of a [Note/Debenture] in the
principal amount of [U.S. $] at par plus interest accrued thereon from
_______________, _______, _____ to but not including, the Exercise Date (the
"Exercise Price").
SECTION 2.2. FORM OF WARRANTS. The Warrants shall be in substantially
the form set out in this Section 2.2, with such additional provisions,
omissions, variations or substitutions as are not inconsistent with the
provisions of this Agreement. The Warrants may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may, consistent herewith, be determined by the officer executing such Warrants
as evidenced by such officer's execution thereof.
FORM OF WARRANT
Number R-W-___ _____ Warrant(s) Representing Right to Purchase Up to
[U.S. $] ________ in Aggregate Principal Amount of ___% [Notes/Debentures] Due.
<PAGE> 4
This Warrant expires at 4:00 p.m. (_______ time) on [________,
_________] and thereafter will be void and of no value. Notice of the holder's
intent to exercise this Warrant must be given to ________________, as Agent not
later than 4:00 P.M. (________ time) [____________, _____].
CITADEL COMMUNICATIONS CORPORATION
[NOTE/DEBENTURE] PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, ____________, the Registered
Owner hereof (herein sometimes called the "Warrantholder") is entitled, upon and
subject to the terms and conditions set forth herein and in the Warrant
Agreement (the "Warrant Agreement") dated as of ___________, ____, ____ between
Citadel Communications Corporation (the "Company") and ______________, as Agent,
(the "Agent"), to purchase at par plus interest accrued thereon, if any, at any
time from 9:00 A.M. (___________ time) [____________, _____] to 4:00 P.M.
(________ time) [________________, _____], inclusive (each such date being
referred to as an "Exercise Date") up to [U.S. $] ___________ in aggregate
principal amount of ___% [Notes/Debentures] Due 0000 (the "[Notes/Debentures]")
of Citadel Communications Corporation (the "Company"), by providing written
notice to the Agent of the Warrantholder's intention to exercise its right to
purchase provided for herein specifying the number of Warrants which the
Warrantholder wishes to exercise, such notice to be provided in the notice form
annexed hereto as Annex II not earlier than 9:00 A.M. (________ time) on
[_________________, ____] and not later than 4:00 P.M. (___________ time)
[____________, ___], and by surrendering to the Agent at its principal office in
_____________, ___________ on any Exercise Date, this Warrant, with the Exercise
Form on which this Warrant is exercised, the [Notes/Debentures] will be
delivered as described below against payment therefor in [U.S. Federal Reserve
or other United States] funds current and immediately available to the Agent at
the amount designated in the Warrant Agreement, in each case in an amount equal
to the purchase price of the [Notes/Debentures] so purchased pursuant to the
exercise of this Warrant.
This Warrant is one of a duly authorized issue of warrants issued under
the provisions of the Warrant Agreement. Reference is hereby made for
particulars of the rights of the Warrantholders and of the Company in respect
thereof and the terms and conditions upon which the Warrants are issue and held,
all to the sole effect as if the provisions of the Warrant Agreement were herein
set forth, to all of which the Warrantholder by acceptance hereof assents. The
Company will furnish to the Warrantholder, upon written request and without
charge, a copy of the Warrant Agreement. All capitalized terms not otherwise
defined herein, shall have the meanings ascribed thereto in the Warrant
Agreement.
The [Notes/Debentures] purchased pursuant to the exercise of this
Warrant will be mailed by certified mail return receipt requested to the person
specified in the Exercise Form annexed hereto at its address specified therein
or, if so specified in the Exercise Form, delivered to such person or its agent
at the principal office of the Agent in ______________ on the Exercise Date. If
[Notes/Debentures] are purchased in an aggregate principal amount which is less
than the total principal amount of the [Note/Debentures] that can be purchased
pursuant to this Warrant, the Warrantholder hereof will be entitled to receive
without charge a new Warrant in respect of the balance of the principal amounts
of [Notes/Debentures] which the Registered Owner hereof was entitled to purchase
under the surrendered Warrant and which were not then purchased.
On presentation at the principal office of the Agent in ______________
subject to the provisions of the Warrant Agreement, one or more Warrants may be
exchanged for one or more Warrants entitling the Warrantholder to purchase an
equal aggregate principal amount of [Notes/Debentures] as may be purchased under
the Warrant or Warrants so exchanged. Nothing contained in this Warrant, the
Warrant Agreement or elsewhere shall be construed as conferring upon the
Warrantholder hereof any right or interest whatsoever as an owner of
[Notes/Debentures] or any other right or interest in respect thereof except as
herein and in the Warrant Agreement expressly provided.
<PAGE> 5
This Warrant is registered on the books of the Company and is
transferable only in accordance with the provisions of the Warrant Agreement by
surrender thereof at the principal office of the Agent duly endorsed or
accompanied by a written instrument of transfer duly executed by the Registered
Owner of this Warrant or its attorney duly authorized in writing all in
accordance with the terms and provisions of the Warrant Agreement.
This Warrant and the Warrant Agreement are governed by and construed in
accordance with the laws of [New York].
IN WITNESS WHEREOF the Company has caused this Warrant to be duly
executed as of _________________, ___.
CITADEL COMMUNICATIONS CORPORATION
By
Certificate of Authentication
This is one of the Warrants described
in the within-mentioned Warrant Agreement
______________________, as Agent
By
Authorized Officer
<PAGE> 6
ANNEX I - NOTICE OF INTENT TO EXERCISE
TO:
The undersigned Warrantholder of _____ Warrants evidenced by Warrant
Number (The "Warrant") hereby notifies you pursuant to Section 4.1 of the
Warrant Agreement dated as of , (the "Warrant Agreement") between Citadel
Communications Corporation (the "Company") and [___________, the undersigned],
of the undersigned's intention to exercise _______ of such Warrants on
____________, ____ ) (the "Exercise Date") to purchase [U.S. $] ________________
in aggregate principal amount of the Company's ___% [Notes/Debentures] Due
__________________ (the "[Notes/Debentures]") at par plus interest accrued, if
any, from and after [___________, _____]. The purchase price shall be a total of
[U.S. $] __________ representing [ U.S. $] _______ in principal and [U.S. $] in
accrued interest.
The Warrant with the Exercise Form duly completed shall be delivered to
the Agent at its principal office in ________________, ________. Payment of the
purchase price of the [Notes/Debentures] shall be made in [U.S. Federal Reserve
or other United States funds] immediately available at the principal office of
the Agent on the Exercise Date. The undersigned shall direct such
[Notes/Debentures] be registered and delivered in the name(s) and the amount(s)
set forth opposite the undersigned's name on Annex II to the Warrant.
DATED this _____ day of ____________, ____.
[NAME OF WARRANTHOLDER]
By
<PAGE> 7
ANNEX II - EXERCISE FORM
TO:
The undersigned Warrantholder of ______ Warrants evidenced by the
Warrant attached hereto hereby exercises on _____________, ____ (the "Exercise
Date") Warrants to purchase [U.S. $] _______ in aggregate principal amount of
Citadel Communications Corporation's ___% [Notes/Debentures] Due ____________
(the "[Notes/Debentures]") at par plus $______ in accrued interest on the
[Notes/Debentures] from [_________________, ___], and agrees to transfer on the
Exercise Date in [ U.S. $] funds immediately available to the Agent (at
[account]) such purchase price of the [Notes/Debentures] all in accordance with
the terms and conditions of the Warrant Agreement dated as of ____________, ____
(the "Warrant Agreement") between Citadel Communications Corporation and
[____________________], as Agent. The undersigned hereby irrevocably directs
that such [Notes/Debentures] be registered and delivered in accordance with the
directions set forth herein.
The undersigned acknowledges that all taxes or other governmental
charges payable upon the registration and delivery of such [Notes/Debentures]
(other than in connection with each original issue and sale of the
[Notes/Debentures]), including any transfer taxes payable if the
[Notes/Debentures] are to be registered in the name of a person or persons other
than the undersigned Warrantholder, must be paid by the undersigned.
DATED this _________ day of _____________, ___.
[NAME OF WARRANTHOLDER]
By
Please check box if [Notes/Debentures] are to be delivered at the
offices of on the Exercise Date, failing which the [Notes/Debentures]
will be mailed by certified mail return receipt requested.
Unless the foregoing box is checked, the [Notes/Debentures] shall be delivered
to the Warrantholder at its address set forth in the Register.
<PAGE> 8
SECTION 2.3. WARRANTS MUTILATED, LOST, DESTROYED OR STOLEN WARRANTS. If
(i) any mutilated Warrant is surrendered to the Agent, or the Company and the
Agent receive evidence to their satisfaction of the destruction, loss or theft
of any Warrant and (ii) there is delivered to the Company and the Agent such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Agent that such Warrant has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Agent shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Warrant, a new Warrant of the same
principal amount, bearing a number not contemporaneously Outstanding.
Upon the issuance of any new Warrant under this Section 2.3, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith.
Every new Warrant issued pursuant to this Section 2.3 in lieu of any
destroyed, lost or stolen Warrant shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Warrant shall be at any time enforceable by anyone, and shall be entitled
to all the security and benefits of this Agreement equally and ratably with all
other Outstanding Warrants.
The provisions of this Section 2.3 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Warrants.
SECTION 2.4. WARRANTHOLDER NOT A REGISTERED OWNER OF THE
[NOTES/DEBENTURES]. The ownership of a Warrant shall not constitute the
Registered Owner thereof an owner of any of the [Notes/Debentures] nor entitle
the Registered Owner to any right or interest in respect thereof except upon the
exercise and surrender of its Warrants and the payment of the purchase price of
the [Notes/Debentures] in accordance with and pursuant to the terms herein
provided.
SECTION 2.5. WARRANTS TO RANK PARI PASSU. All Warrants shall rank pari
passu with each other.
SECTION 2.6. EXECUTION OF WARRANTS. The Warrants shall be signed in the
name and on behalf of the Company by one of its officers. The signature of the
officer executing the Warrants may be manual or facsimile. In case any officer
of the Company who shall have signed any of the Warrants (manually or in
facsimile) shall cease to be such officer before the Warrants so signed shall
have been authenticated and delivered by the Agent, such Warrants nevertheless
may be authenticated and delivered as though the Person who signed such Warrants
had not ceased to be such officer of the Company. Also, any Warrant may be
signed on behalf of the Company by such Persons as on the actual date of
execution of such Warrant shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such Person was not such
officer.
Only such of the Warrants as shall bear thereon a certificate of
authentication in substantially the form set forth in Section 2.2 hereof,
executed by the Agent, shall be entitled to the benefits of this Agreement or be
valid or obligatory for any purpose.
SECTION 2.7. PURCHASE OF WARRANTS BY THE COMPANY. The Company may
purchase in the market, by private contracts or otherwise all or any portion of
the Warrants on such terms as the Company may determine.
ARTICLE III
EXCHANGE OF WARRANTS; REGISTRATION OF
TRANSFER OF WARRANTS; NOTICE TO WARRANTHOLDERS
<PAGE> 9
SECTION 3.1. REGISTER. The Agent, as agent of the Company, shall
maintain, at its principal office in ____________, ____, the Register in which,
subject to such reasonable regulations as it and the Company may prescribe, it
shall provide for the registration of the Warrants and the transfer of Warrants
as in this Agreement provided. The Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. The Registered Owners of the Warrants shall present directly to the Agent
all requests for (a) registration of transfer of Warrants, (b) exchange of
Warrants for new Warrants in authorized denominations and (c) replacement of
Warrants in the case of mutilation, destruction, loss or theft.
Upon the Company's request, the Agent shall furnish the Company with a
list of names and addresses of the Registered Owners showing the number of such
Warrants held by each Registered Owner.
SECTION 3.2. EXCHANGE OF WARRANTS. Warrants entitling the Registered
Owner to purchase any specified principal amount of [Notes/Debentures] may, upon
compliance with the reasonable requirements of the Agent, be exchanged for
Warrants entitling the Registered Owner thereof to purchase an equal aggregate
principal amount of [Notes/Debentures].
Warrants may be exchanged only at the principal office of the Agent in
_______________, ___ or at any other place that is designated by the Company.
Any Warrants tendered for exchange shall be surrendered to the Agent and
canceled. The Company shall execute all Warrants necessary to carry out
exchanges as aforesaid and such Warrants shall be authenticated by the Agent.
SECTION 3.3. CHARGES FOR EXCHANGE. For each Warrant exchanged or
transferred, the Agent, except as otherwise herein provided, shall, if required
by the Company, charge a reasonable sum for each new Warrant issued; and payment
of such charges and reimbursement of the Agent or the Company for any taxes or
governmental or other charges required to be paid shall be made by the party
requesting such exchange, as a condition precedent thereto.
SECTION 3.4. REGISTRATION OF TRANSFER; RESTRICTIONS ON TRANSFERS. No
transfer of a Warrant shall be valid unless made at the principal offices of the
Agent in the ____________, __________ or at any other place that is designated
by the Company as an office for registration of transfer by the Registered Owner
or such Registered Owner's executors, administrators or other legal
representatives or attorney duly appointed by an instrument in writing in form
and execution satisfactory to the Agent and upon compliance with such reasonable
requirements as the Agent and the Company may prescribe. Any Warrants tendered
for registration of transfer shall be surrendered to the Agent.
SECTION 3.5. NOTICE TO WARRANTHOLDERS. Unless herein otherwise
expressly provided, any notice to be given hereunder to Warrantholders shall be
deemed to be validly given if such notice is mailed to the last addresses of the
Warrantholders appearing on the Register. Any notice so given shall be deemed to
have been given on the day on which it has been mailed. In determining under any
provision hereof the date when notice of any meeting or other event must be
given, the date of giving notice shall be included and the date of the meeting
or other event shall be excluded.
ARTICLE IV
EXERCISE OF WARRANTS
SECTION 4.1. METHOD OF EXERCISE OF WARRANTS. The Registered Owner of
any Warrant may exercise the right thereby to purchase [Notes/Debentures] by
surrendering to the Agent on any Business Day during the Exercise Period at the
principal office of the Agent ___________, ___________, or at any other place or
places that may be designated by the Company:
(a) at least 3 Business Days prior to the exercise of its
Warrants, a completed and executed Notice of Intent to Exercise in the
form thereof set forth in Annex I to each Warrant (a "Notice of Intent
to Exercise");
<PAGE> 10
(b) on the Exercise Date, a duly completed and executed
Exercise Form in the form thereof set forth in Annex II to each
Warrant;
(c) on the Exercise Date, its Warrant or Warrants which it is
exercising; and
(d) on the Exercise Date, the Exercise Price in funds
immediately available to the Company.
The items described in the foregoing clauses (a) and (b) shall be
deemed received when an actual copy or a facsimile thereof is received by the
Agent. Each Warrant shall be deemed to be surrendered only upon personal
delivery thereof to or, if sent by mail or other means of transmission, upon
receipt thereof by, the Agent at the office specified in this Section 4.1. Each
Warrant shall be deemed exercised as of the first Business Day on which all of
the foregoing conditions are satisfied with respect to such Warrant. The first
day on which the Warrants may be exercised is ________________. The Company
acknowledges that the Registered Owners of the Warrants are not required under
any circumstances to take any other actions in order to exercise their Warrants.
SECTION 4.2. EFFECT OF EXERCISE OF WARRANTS. Upon surrender and payment
of the Exercise Price by the Registered Owner of any Warrant in accordance with
Section 4.1, the [Notes/Debentures] so purchased shall be deemed to have been
issued and the person or persons to whom such [Notes/Debentures] are to be
issued shall be deemed to have become the Registered Owner or owners of such
[Notes/Debentures] on the [Exercise Date].
After the due exercise of a Warrant as aforesaid, the Company shall
forthwith cause to be delivered to the person to whom the [Notes/Debentures] so
purchased are to be issued at the address specified in such form or, if so
specified in such purchase form, cause to be delivered to such person at the
office where such Warrant was surrendered, a [Note/Debenture] or
[Notes/Debentures] in the form or forms and in the denominations requested and
for the appropriate principal amount of [Notes/Debentures] not exceeding the
principal amount which the Warrantholder is entitled to purchase pursuant to the
Warrant surrendered.
SECTION 4.3. PARTIAL EXERCISE OF WARRANTS. Subject to the issuance of
[Notes/Debentures] in authorized denominations only, the Registered Owner of any
Warrant may purchase [Notes/Debentures] in a principal amount less than that
which such Registered Owner is entitled to purchase pursuant to the surrendered
Warrant. In the event of any purchase of a principal amount of
[Notes/Debentures] less than the principal amount which can be purchased
pursuant to a Warrant, the Registered Owner thereof upon exercise thereof prior
to the Time of Expiry shall, in addition, be entitled to receive forthwith a new
Warrant in respect of the balance of the principal amount of [Notes/Debentures]
which such Registered Owner was entitled to purchase pursuant to the surrendered
Warrant and which were not then exercised. The Company shall not be responsible
for any taxes which may be payable in connection with the issuance of such new
Warrant.
SECTION 4.4. EXPIRATION OF WARRANTS. After the Time of Expiry, all
rights under any Warrant in respect of which the right of purchase herein and
therein provided for shall not theretofore have been exercised pursuant to
Section 4.1 shall cease and terminate and such Warrant shall become void and of
no effect and all rights of the Registered Owner thereof under this Warrant
Agreement shall cease and terminate as of such termination; provided that such
Registered Owner's rights under this Warrant Agreement with respect to actions
occurring prior to such termination shall remain in full force. After the Time
of Expiry, each Registered Owner of any Warrants shall return any unexercised
Warrants to the Agent for cancelation in accordance with Section 4.5 of this
Agreement.
SECTION 4.5. CANCELATION OF SURRENDERED WARRANTS. All Warrants
surrendered to the Agent pursuant to Sections 2.3, 3.2, 3.4 or 4.1 shall
forthwith be canceled by the Agent. All Warrants canceled or required to be
canceled under this or any other provision of this Agreement may be destroyed by
or under the direction of the Agent and the Agent shall furnish the Company with
a destruction certificate identifying the Warrants so destroyed and the
principal amount of [Notes/Debentures] which could have been purchased pursuant
to each.
<PAGE> 11
SECTION 4.6. ACCOUNTING AND RECORDING. The Agent shall forthwith
account and remit to the Company with respect to Warrants exercised and
immediately forward to the Company (or into an account or accounts of the
Company with the bank or trust company designated by the Company for that
purpose) all monies received by the Agent on the purchase of [Notes/Debentures]
through the exercise of Warrants. All such monies, and any [Notes/Debentures] or
other instruments, from time to time received by the Agent shall be received in
trust for, and shall be segregated and kept apart by the Agent in trust for, the
Company.
The Agent shall record the particulars of the Warrants exercised which
shall include the names and addresses of the persons who become Registered
Owners of [Notes/Debentures] on exercise, the Exercise Date, the Exercise Price
and the number of [Notes/Debentures] reserved for that purpose by the Company.
The Agent shall provide such particulars in writing to the Company.
ARTICLE V
COVENANTS
SECTION 5.1. ISSUANCE OF [NOTES/DEBENTURES]. The Company covenants that
so long as any Warrants remain Outstanding it will cause the [Notes/Debentures]
from time to time paid for pursuant to the Warrants in the manner herein
provided to be duly issued and delivered in accordance with the Warrants and the
terms hereof.
SECTION 5.2. CORPORATE EXISTENCE OF THE COMPANY; CONSOLIDATION, MERGER,
SALE OR TRANSFER. The Company covenants that so long as any of the Warrants are
Outstanding, it will maintain its existence, will not dissolve, sell or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it; provided that the Company may,
without violating the covenants in this Section 5.2 contained, consolidate with
or merge into another entity or permit one or more other entities to consolidate
with or merge into it, or sell or otherwise transfer to another entity all or
substantially all of its assets as an entirety and thereafter dissolve, if the
surviving , resulting or transferee entity, as the case may be, (i) shall be
formed and existing under the laws of one of the States of the United States of
America, (ii) assumes, if such entity is not the Company, all of the obligations
of the Company hereunder and (iii) is not, after such transaction, otherwise in
default under any provisions hereof.
SECTION 5.3. MAINTENANCE OF OFFICES OR AGENCIES FOR TRANSFER,
REGISTRATION, EXCHANGE OF WARRANTS. So long as any of the Warrants shall remain
Outstanding, the Company covenants that it will maintain an office or agency in
_______________________, where the Warrants may be presented for registration,
exchange and transfer as in this Agreement provided, and where notices and
demands to or upon the Company in respect of the Warrants or of this Agreement
may be served, and where the Warrants may be presented for exchange for
[Notes/Debentures] as provided herein.
SECTION 5.4. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF AGENT. The
Company, whenever necessary to void or fill a vacancy in the office of Agent,
covenants that it will appoint, in the manner provided in Section 9.4 hereof, an
Agent, so that there shall at all times be a Agent with respect to the
Outstanding Warrants.
ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. The term "Event of Default" whenever
used herein with respect to any Warrant shall mean any one of the following
events:
<PAGE> 12
(a) Failure by the Company to deliver the [Notes/Debentures]
in exchange for the Warrants in accordance with the provisions of this
Agreement or
(b) failure on the part of the Company to observe or perform
in any material respect any of the covenants or agreements on its part
in the Warrants or in this Agreement specifically contained for the
benefit of the Warrantholders, for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the
Agent, or to the Company and the Agent by the Registered Owners of not
less than 25% in principal amount of the Warrants at the time
Outstanding under this Agreement a written notice specifying such
failure and stating that such is a "Notice of Default" hereunder.
SECTION 6.2. SUITS BY WARRANTHOLDERS. All or any of the rights
conferred upon the Registered Owner of any Warrant by the terms of such Warrant
and/or this Agreement may be enforced by the Registered Owner of such Warrants
by appropriate legal proceedings but without prejudice to the right which is
hereby conferred upon the Agent to proceed in its own name to enforce each and
all of the provisions herein contained for the benefit of the Registered Owners
of the Warrants from time to time Outstanding.
SECTION 6.3. REMEDIES NOT WAIVED; ENFORCEMENT EXPENSE. No delay or
failure on the part of the Registered Owners of Warrants or the Agent to
exercise any right shall operate as a waiver of such right or otherwise
prejudice such Registered Owner's or Agent's, as the case may be, rights, powers
and remedies. The Company agrees to pay all costs, expenses and fees, including
all reasonable attorneys' fees, which may be incurred by a Registered Owner in
enforcing or attempting to enforce its rights thereunder and hereunder following
the occurrence and during the continuance of any Event of Default hereunder,
whether the same shall be enforced by suit or otherwise.
SECTION 6.4. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
COMPANY AND EXEMPT FORM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement of this Agreement, or of any Warrant, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company, either directly or though the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Agreement and the Warrants issued hereunder are solely corporate obligations,
and that no personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Warrants or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the obligations hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Agreement
or in any of the Warrants or implied therefrom are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Agreement and the issuance of such Warrants.
ARTICLE VII
AMENDMENTS; MEETING OF WARRANTHOLDERS
SECTION 7.1. AMENDMENTS WITHOUT CONSENT OF REGISTERED OWNERS OF
WARRANTS. This Agreement and the terms and conditions of the Warrants may be
amended by the Company and the Agent, without the consent of any Registered
Owner of Warrants for any of the following purposes:
(a) to add to the covenants of the Company for the benefit of
the Registered Owners of Warrants,
<PAGE> 13
(b) to surrender any right or power conferred upon the
Company,
(c) to cure any ambiguity or correcting or supplementing any
provision contained herein or in the Warrants which may be defective or
inconsistent with any other provisions contained herein or in the
Warrants,
(d) if deemed appropriate by the Company or required by law,
to evidence the permitted succession of another corporation to the
Company and the assumption by such successor of the covenants and
obligations of the Company herein and in the Warrants or
(e) to make such other provisions in regard to matters or
questions arising under this Agreement or the Warrants which shall not
adversely affect the interests of the Registered Owners of the Warrants
in any material respect.
SECTION 7.2. AMENDMENTS WITH CONSENT OF REGISTERED OWNERS OF WARRANTS.
This Agreement, the terms and conditions of the Warrants and the covenants
contained in either may also be modified or amended by the Company and the Agent
and past defaults thereunder or future compliance therewith by the Company may
be waived either with the written consent of the Registered Owners of not less
than a majority in aggregate principal amount of the [Notes/Debentures] at the
time outstanding, or by the adoption, at a meeting duly convened and held in
accordance with the provisions of Section 8.04 at which the Registered Owners of
at least 25% of the aggregate principal amount of the [Notes/Debentures] at the
time outstanding are present or represented, of a resolution by the Registered
Owners of not less than 75% in aggregate principal amount of the Outstanding
Warrants present or represented at the meeting; provided that no such
modification, amendment or waiver may, without the consent or affirmative vote
of the Registered Owner of each Warrant affected thereby:
(a) Waive a default in the failure to deliver
[Notes/Debentures] in exchange for Warrants pursuant to Section 4.1
hereof or change the Exercise Dates or the Expiry Date with respect to
any Warrant, or change the coin or currency in which any Warrant is
exercisable for [Notes/Debentures] or impair the right to institute
suit for the enforcement of any rights of any Registered Owner of a
Warrant or
(b) Reduce the percentage in principal amount of the
Outstanding Warrants, the consent of which Registered Owners is
required for any modification or amendment to this Agreement or to the
terms and conditions of or covenants contained in this Agreement or in
the Warrants or for any waiver of compliance therewith or (c) modify
any of the provisions of this Section 7.2 except to provide that
certain other provisions of this Agreement or the terms and conditions
of the Warrants cannot be modified, amended or waived without the
consent of the Registered Owner of each Outstanding Warrant affected
thereby.
It shall not be necessary for the Registered Owners of Warrants to approve the
particular form of any proposed amendment, but it shall be sufficient if they
approve the substance thereof.
SECTION 7.3. BINDING NATURE OF AMENDMENTS; NOTICE. Any modifications,
amendments or waivers to this Agreement or to the terms and conditions of the
Warrants in accordance with the provisions hereof will be conclusive and binding
on all Registered Owners of Warrants, whether or not they have given such
consent, whether or not notation of such modifications, amendments or waivers is
made upon the Warrants, and on all future Registered Owners of Warrants.
Promptly after the execution of any amendment to this Agreement or the
implementation of any modification or amendment of the terms and conditions of
the Warrants, notice of such amendment or modification shall be given by the
Company or by the Agent, on behalf of and at the instruction of the Company, to
the Registered Owners by mail at such owner's address as it appears on the
Register. The failure to give such notice on a timely basis shall not invalidate
such amendment or modification, but such notice shall be given as soon as
practicable upon discovering such failure or upon any impediment to the giving
of such notice being overcome.
<PAGE> 14
ARTICLE VIII
MEETINGS
SECTION 8.1. MEETINGS OF REGISTERED OWNERS OF WARRANTS. A meeting of
Registered Owners of Warrants may be called at any time and from time to time to
make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement or the Warrants to be
made, given or taken by Registered Owners of Warrants.
The Agent may at any time call a meeting of Registered Owners of
Warrants for any purpose specified herein to be held at such time and at such
place in ______ or __________ as the Agent shall determine. Notice of every
meeting of Registered Owners of Warrants, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, by mail to each registered Owner at its address as it
appears on the Register, not less than 21 nor more than [45] days prior to the
date fixed for the meeting. In case at any time the Company or the Registered
Owners of at least 25% in aggregate principal amount of the Outstanding Warrants
shall have requested the Agent to call a meeting of the Registered Owners of
Warrants for any purpose, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Agent shall not have
mailed notice of such meeting within 14 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Registered Owners of Warrants in the amount previously
specified, as the case may be, may determine the time and the place in _______
or for such meeting and may call such meeting for such purposes by giving notice
thereof as provided herein.
To be entitled to vote at any meeting of Registered Owners of Warrants,
a Person shall be a registered Owner of Outstanding Warrants. The Persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Warrants shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of the Registered Owners of Warrants, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 5 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 5 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in this Section 8.1 with respect to an original meeting,
except that such notice need be given only once not less than 3 days prior to
the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage of the
principal amount of the Outstanding Warrants which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for a lack of a quorum the persons entitled to vote 25% in aggregate principal
amount of the Outstanding Warrants shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Any meeting of
Registered Owners of Warrants at which a quorum is present may be adjourned from
time to time by a vote as hereinafter provided in this Section 8.1, and the
meeting may be held as so adjourned without further notice. At a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid,
any resolution and all matters shall be effectively passed or decided if passed
or decided by persons entitled to vote the lesser of (a) a majority in aggregate
principal amount of Outstanding Warrants or (b) 75% in aggregate principal
amount of Outstanding Warrants represented and voting at such meeting.
The Agent may make such reasonable regulations as it may deem advisable
for any meeting of Registered Owners of Warrants in regard to proof of the
holding of Warrants and such other matters concerning the conduct of the meeting
as it shall deem appropriate. The Agent shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or Registered Owners of Warrants as provided herein, in
which case the Company or the Registered Owners calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and permanent secretary of the meeting shall be elected by note of the
<PAGE> 15
persons entitled to vote a majority in aggregate principal amount of the
Outstanding Warrants represented at the meeting. The chairman of the meeting
shall have no right to vote, except as a Holder of Warrants.
SECTION 8.2. RECORD OF MEETINGS. A record, at least in triplicate, of
the proceedings of each meeting of Registered Owners of Warrants shall be
prepared, and one such copy shall be delivered to the Company and the Agent. The
copy delivered to the Agent shall be preserved by the Agent and, upon reasonable
notice, made available to any Registered Owners of Outstanding Warrants.
ARTICLE IX
CONCERNING THE AGENT
SECTION 9.1. APPOINTMENT OF AGENT. The Company hereby appoints, at
present having its principal office in [__________ at _____________, ________,
__________] as the Agent in respect of the Warrants, upon the terms and subject
to the conditions set forth in this Agreement.
SECTION 9.2. ACCEPTANCE OF APPOINTMENT BY AGENT; LIMITATIONS OF DUTIES
OF AGENT. The Agent accepts its obligations set forth herein and in the Warrants
upon the terms and conditions hereof and thereof, including the following, to
all of which the Company agrees and to all of which the rights hereunder of the
Registered Owners from time to time of the Warrants shall be subject:
(a) The Agent shall be entitled to the compensation agreed
upon with the Company for all services rendered by it, and the Company
agrees promptly to pay such compensation and to reimburse the Agent for
its reasonable out-of-pocket expenses (including, without limitation,
the reasonable compensation of its counsel) incurred by it in
connection with the services rendered by it hereunder. The Company also
agrees to indemnify the Agent for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with its acting as such Agent
hereunder, including the costs and expenses of defending against any
claim of liability.
(b) In acting under this Agreement and in connection with the
Warrants, the Agent is acting solely as the agent of the Company and
does not assume any obligations or relationship of agency or trust for
or with any of the Registered Owners of the Warrants.
(c) The Agent may consult with one or more counsel (who may
also be counsel to the Company), and, in the absence of bad faith, the
written opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, omitted or
suffered by it hereunder in the good faith reliance thereon.
(d) The Agent shall be protected and shall incur no liability
for or in respect of any action taken, omitted or suffered by it in the
good faith reliance upon any Warrant, notice, direction, consent,
certificate, affidavit, statement or other paper or document signed by
the Company reasonably believed by the Agent to be genuine and to have
been signed by the proper persons.
(e) The Agent and its officers, directors and employees may
become the owner of, or acquire any interest in, any Warrants, with the
same rights that it or they would have if it were not the Agent
hereunder, may engage or be interested in any financial or other
transaction with the Company and may act on, or as depository, trustee
or agent for, any committee or body of Registered Owners of the
Warrants or holders of other obligations of the Company as freely as if
it were not the Agent hereunder.
(f) The recitals contained herein and in the Warrants (except
in the Agent's certificates of authentication) shall be taken as the
statements of the Company, and the Agent assumes no responsibility for
their correctness. The Agent makes no representation as to the validity
or sufficiency of this Agreement or the Warrants, provided that the
Agent shall not be relieved of its
<PAGE> 16
duty to authenticate Warrants as authorized by this Agreement. The
Agent shall not be accountable for the use or application by the
Company of the proceeds of the Warrants.
(g) The Agent shall be obligated to perform such duties and
only such duties as are herein and in the Warrants specifically set
forth and no implied duties or obligations shall be read into this
Agreement or the Warrants against the Agent.
(h) No provision of this Agreement shall be construed to
relieve the Agent from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct or that of its
officers or employees.
(i) The Agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the
Company.
SECTION 9.3. AGENT REQUIRED. The Company agrees that, until all
Warrants (i) shall have been delivered to the Agent for cancellation or (ii)
have become null and void because of the passage of the Expiry Date, there shall
at all times be a Agent hereunder which shall be a corporation doing business in
the United States and which alone or with its affiliates has a combined capital
and surplus of at least $[___,000,000].
SECTION 9.4. RESIGNATION AND REMOVAL OF AGENT; APPOINTMENT OF
SUCCESSOR. The Agent may at any time resign by giving written notice (in
accordance with Section 10.1 hereof) to the Company of such intention on its
part, specifying the date on which its desired resignation shall become
effective; provided, however, that such date shall never be less than [90] days
after the receipt of such notice by the Company unless the Company agrees to
accept less notice. Upon receipt of such notice of resignation, the Company
shall promptly act to appoint a successor Agent. The Agent may be removed at any
time by the Company by delivering written notice thereof specifying such removal
and the date when it is intended to become effective. Any resignation or removal
of the Agent shall take effect upon the date of the appointment by the Company
as hereinafter provided of a successor and the acceptance of such appointment by
such successor.
In case at any time the Agent shall resign, or shall be removed, or
shall become incapable of acting or shall be adjudged as bankrupt or insolvent,
or if a receiver of its or of its property shall be appointed, or if any public
officer shall take charge or control of its or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor agent,
eligible as aforesaid, shall be appointed by the Company. Upon the appointment
as aforesaid of a successor agent and acceptance by it of such appointment, the
Agent so superseded shall cease to be the Agent hereunder. If no successor Agent
shall have been so appointed by the Company and shall have accepted appointment
as hereinafter provided, then the Registered Owners of a majority in aggregate
principal amount of the Outstanding Warrants, on such Holders' behalf and on
behalf of all others similarly situated may petition any court of competent
jurisdiction for the appointment of a successor Agent.
Any successor Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Agent, without any further
act deed or conveyance, shall become vested with all the authority, rights,
powers, immunities, duties and obligations of such predecessor with like effect
as if originally named as such Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall simultaneously
therewith become obligated to transfer, deliver and pay over, and such successor
Agent shall be entitled to receive, all moneys, [Notes/Debentures] or other
property on deposit with or held by such predecessor, as such Agent hereunder.
The Company or, at the discretion of the Company, the successor Agent, will give
prompt written notice by U.S. Mail to each Registered Owner of the Warrants at
such owner's address as it appears on the Register of the appointment of a
successor Agent. Failure to give such notice or any defect therein shall not
affect the appoint of a successor Agent.
SECTION 9.5. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF AGENT. Any corporation into which the Agent may be merged or
converted, or with
<PAGE> 17
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the assets and business of
the Agent, shall be the successor to the Agent hereunder, provided such
corporation shall be otherwise eligible under this Article VII, without the
execution or filing of any document or any further act on the part of any of the
parties hereto.
In case any Warrants shall have been authenticated, but not delivered,
by the Agent then in office, any successor by merger, conversion or
consolidation to such authenticating Agent may adopt such authentication and
deliver the Warrants so authenticated with the same effect as if such successor
Agent had itself authenticated such Warrants.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES. All notices or demands hereunder upon the
Company or the Agent may be electronically communicated or hand delivered or
sent by overnight courier, addressed to any party hereto as provided in this
Section 10.1.
All communications intended for the Company shall be sent to:
Citadel Communications Corporation
City Center West
Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89129
Attention: [Chief Financial Officer]
Fax Number:
All communications intended for the Agent shall be sent to:
Agent-Name
Attention:
Fax Number:
or at any other address of which either of the foregoing shall have notified the
other in any manner prescribed in this Section 10.01.
For all purposes of this Agreement, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day it is
delivered unless (i) that day is not a day on which commercial banks
are open for business (a "Local Business Day") in the city specified in
the address for notice provided by the recipient or (ii) if delivered
after the close of business on a Local Business Day, then on the next
succeeding Local Business Day or
(b) if sent by facsimile transmission, on the date transmitted,
provided that oral or written confirmation of receipt is obtained by
the sender unless the date of transmission and confirmation is not a
Local Business Day, in which case, on the next succeeding Local
Business Day.
Any notice, direction, request, demand, consent or waiver by the Company or any
Registered Owner to or upon the Agent shall be deemed to have been sufficiently
given, made or filed, for all purposes, if given, made or filed in writing with
the Agent in accordance with the provisions of this Section 10.1.
<PAGE> 18
SECTION 10.2. DAY NOT A BUSINESS DAY. If any date on which a payment is
to be made, notice given or other action taken hereunder is not a Business Day,
then such payments, notice or other action shall be made, given or taken on the
next succeeding business day in such place, and in the case of any payment, no
interest shall accrue for the delay.
SECTION 10.3. CURRENCY. All amounts herein are expressed in [United
States Dollars].
SECTION 10.4. GOVERNING LAW. This Agreement and the Warrants shall be
construed in accordance with the laws of New York.
SECTION 10.5. LIMITATION OF RIGHTS TO PARTIES AND REGISTERED OWNERS OF
WARRANTS. Nothing in this Agreement or in the Warrants expressed or implied is
intended or shall be construed to give to any Person other than the Company, the
Agent and the Registered Owners of the Warrants any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or provision herein or in the Warrants. All such covenants, conditions and
provisions are and shall be held to be for the sole and exclusive benefit of the
Company, the Agent and the Registered Owners of the Warrants.
SECTION 10.6. SEPARABILITY OF INVALID PROVISIONS. In case any one or
more of the provisions contained in this Agreement or in the Warrants shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
SECTION 10.7. NO WAIVER OF RIGHTS. A failure or delay in exercising any
right, power or privilege in respect of this Warrant Agreement will not be
presumed to operate as a waiver, and a single or partial exercise of any right,
power or privilege will not be presumed to preclude any subsequent or further
exercise of that right, power or privilege or the exercise of any other right,
power or privilege.
SECTION 10.8. EXECUTION IN SEVERAL COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original; but such counterparts shall together constitute but
one and the same instrument.
SECTION 10.9. ARTICLE AND SECTION HEADINGS. The headings or titles of
the several Articles and Sections hereof and any table of contents appended to
copies hereof shall be solely for convenience of reference and shall not affect
the meaning, construction or effect of this Agreement.
SECTION 10.10. SUCCESSOR AND ASSIGNS. All the covenants and agreements
in this Agreement contained by or on behalf of the Company or the Agent shall
bind their respective successors and assigns, whether so expressed or not.
<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CITADEL COMMUNICATIONS CORPORATION
By
[AGENT NAME], as Agent
By
<PAGE> 1
EXHIBIT 4.15
-------------------------------------------------
CITADEL COMMUNICATIONS CORPORATION
STANDARD STOCK WARRANT
AGREEMENT PROVISIONS
-------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE 1 ISSUANCE, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES.......................................1
1.1. Issuance of Warrant Certificates...............................................................1
1.2. Execution and Delivery of Warrant Certificates.................................................1
1.3. Registration and Countersignature..............................................................2
ARTICLE 2 WARRANT PRICE, DURATION AND EXERCISE OF WARRANT CERTIFICATES...................................4
2.1. Warrant Price..................................................................................4
2.2. Duration of Warrant Certificates...............................................................4
2.3. Exercise of Warrant Certificates...............................................................4
ARTICLE 3 OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES.........................5
3.1. No Rights as Securityholders Conferred by Warrant Certificates.................................5
3.2. Lost, Stolen, Mutilated or Destroyed Warrant Certificates......................................5
3.3. Holder of Warrant Certificate May Enforce Rights...............................................6
3.4. Call of Warrants by the Company................................................................6
3.5. Optional Reduction of Warrant Price............................................................6
3.6. Reservation of Shares..........................................................................6
3.7. Obtaining of Governmental Approvals and Stock Exchange Listings................................7
3.8. Adjustment of Exercise Price and Number of Shares Purchasable or Number of Warrants............7
3.9. Fractional Warrants and Fractional Shares.....................................................10
3.10. Notices to Warrantholders.....................................................................11
ARTICLE 4 EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.................................................12
4.1. Exchange and Transfer.........................................................................12
4.2. Treatment of Holders of Warrant Certificates..................................................13
4.3. Cancellation of Warrant Certificates..........................................................13
ARTICLE 5 CONCERNING THE WARRANT AGENT..................................................................13
5.1. Warrant Agent.................................................................................13
5.2. Conditions of Warrant Agent's Obligations.....................................................13
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
5.3. Registration and Appointment of Successor Warrant Agent.......................................15
ARTICLE 6 MISCELLANEOUS.................................................................................17
6.1. Supplements and Amendments....................................................................17
6.2. Notices and Demands to the Company and Warrant Agent..........................................17
6.3. Addresses.....................................................................................17
6.4. Delivery of Prospectus........................................................................18
6.5. Obtaining of Governmental Approvals...........................................................18
6.6. Persons Having Rights under Warrant Agreement.................................................18
6.7. Headings......................................................................................18
6.8. Counterparts..................................................................................18
6.9. Inspection of Agreement.......................................................................18
6.10. Governing Law.................................................................................18
6.11. Successors....................................................................................18
6.12. Termination...................................................................................19
</TABLE>
<PAGE> 4
From time to time, Citadel Communications Corporation a Nevada
corporation (the "Company"), may enter into one or more warrant agreements that
provide for the issuance and sale of warrants ("Warrants") to purchase shares of
the Company's Common Stock, $0.01 par value and Preferred Stock, $0.01 par value
(collectively "Shares"). The standard provisions set forth herein may be
included or incorporated by reference in any such warrant agreement (a "Warrant
Agreement"). The Warrant Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement." The person named
as the "Warrant Agent" in the first paragraph of the Warrant Agreement is herein
referred to as the "Warrant Agent." Unless otherwise defined in this Agreement
or in the Warrant Agreement, as the case may be, terms defined in the Warrant
Agreement are used herein as therein defined and terms defined herein are used
in the Warrant Agreement as herein defined.
ARTICLE 1
ISSUANCE, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
1.1. Issuance of Warrant Certificates. Each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
such numbers of Shares as are set forth in the Warrant Agreement. The number of
Warrants which may be issued and delivered under this Agreement is unlimited.
There shall be established in or pursuant to a resolution of the Board
of Directors of the Company or any duly authorized committee thereof or
established in one or more warrant agreements supplemental hereto, prior to the
issuance of any Warrants: the designation of such Warrants; if the Warrants are
issued together as a unit with any other securities of the Company, the date
after which the Warrants shall be freely tradable separately from such other
securities (the "Distribution Date"); if the Company may at its option or under
circumstances described therein provide for an earlier Distribution Date; the
expiration date, pursuant to Section 2.2; the exercise price and any form of
consideration other than lawful money of the United States of America by which
the exercise price may be paid pursuant to Section 2.1; the Call Price, Call
Date and Call Terms pursuant to Section 3.4; the limitations, if any, upon the
Reduced Warrant Price and the Reduced Warrant Price Period, pursuant to Section
3.5; the circumstances, if any, under which the Exercise Price and the number of
Shares purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment and the manner of making any such
adjustment.
1.2. Execution and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form substantially in such
form or forms as shall be established by the Company from time to time pursuant
to one or more resolutions of the Board of Directors of the Company or in one or
more warrant agreements supplemental hereto, and in each case shall be dated as
of the date of issuance thereof, and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
Warrant Certificate may approve (execution thereof to be
<PAGE> 5
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with (i) any law
or with any rule or regulation made pursuant thereto or (ii) any rule or
regulation of any stock exchange on which the Warrant Certificates may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by its Chairman of the Board of Directors, a Vice Chairman
of the Board of Directors, its President, a Vice President or its Treasurer and
attested by its Secretary or Assistant Secretary, under its corporate seal. Such
signatures may be manual or facsimile signatures of such authorized officers and
may be imprinted or otherwise reproduced on the Warrant Certificates. The seal
of the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
delivered hereunder.
If any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been countersigned
and delivered to the Warrant Agent, such Warrant Certificates nevertheless may
be countersigned and delivered as though the person who signed such Warrant
Certificates had not cease to be such officer of the Company. Any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such persons was not an officer.
1.3. Registration and Countersignature. The Warrant Agent shall, upon
receipt of Warrant Certificates, duly executed on behalf of the Company,
countersign the Warrant Certificates evidencing Warrants to purchase the number
of Shares set forth in the Warrant Agreement and shall deliver such Warrant
Certificates to the appropriate person or entity upon the order of the Company.
After the original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for, or in connection with the registration of transfer
of, one or more previously countersigned Warrant Certificates, as hereinafter
provided. The warrant Certificates shall not be valid for any purpose unless so
countersigned.
2
<PAGE> 6
The Warrant Agent's countersignature on all Warrants shall be in
substantially the following form:
[NAME OF WARRANT AGENT],
as Warrant Agent
By
---------------------
Authorized Signatory
3
<PAGE> 7
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANT CERTIFICATES
2.1. Warrant Price. The exercise price of each Warrant and any other
form of consideration other than lawful money of the United States of America by
which the exercise price may be paid shall be as set forth in the Warrant
Agreement. The purchase price (including moneys and such other consideration) of
the Shares upon exercise of the Warrants is referred to in this Agreement as the
"Warrant Price" and is payable in full at the time of exercise.
2.2. Duration of Warrant Certificates. Warrant Certificates may be
exercised in whole at any time, and in part from time to time, during the period
set forth in the Warrant Agent (the "Expiration Date"). Each Warrant Certificate
not exercised on or before the close of business on the Expiration Date shall
become void, and all rights of the holder thereunder and under this Agreement
shall cease.
2.3. Exercise of Warrant Certificates.
(a) Prior to the Expiration Date, a Warrant Certificate, if
countersigned by the Warrant Agent, may be exercised in whole or in part by
providing certain information set forth on the reverse side of the Warrant
Certificate and, unless otherwise provided pursuant to Section 2.1, by paying in
full (in cash or by certified or official bank check in New York Clearing House
funds or by bank wire transfer in immediately available funds), in United States
dollars, the Warrant Price for the Shares as to which the Warrant Certificate is
exercised, to the Warrant Agent at its corporate trust office at the address set
forth in the Warrant Agreement. The payment must specify the name of the holder
and the number of Warrants exercised by such holder. Warrants will be deemed to
have been exercised upon receipt by the Warrant Agent of the Warrant Price and
the Warrant Certificate properly completed and duly executed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed (under the
Medallion Program) by a bank or trust company, by a broker or dealer which is a
member of the National Association of Securities Dealers, Inc. ("NASD") or by a
member of a national securities exchange. If the Warrant Agent receives moneys
in payment of the Warrant Price, the Warrant Agent shall deposit all funds
received by it in the account of the Company maintained with it for such
purpose. If the Warrant Agent receives consideration other than moneys for
purpose. If the Warrant Agent receives consideration other than moneys for
Warrants, the Warrant Agent shall deliver such consideration directly to the
Company. In either case, the Warrant Agent shall advise the Company by telex or
telecopy at the end of each day as to the Warrant Certificates that have been
exercised and the amount of moneys deposited to its account or the type and
amount of other consideration to be delivered to it.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Shares to which such holder is entitled
upon such exercise, (iii) delivery of Warrant
4
<PAGE> 8
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise and (iv) such other information as the Company shall reasonably
require.
(c) As soon as practicable after receipt of payment of the Warrant
Price and the Warrant Certificate properly completed and duly executed at the
corporate trust office of the Warrant Agent, the Company shall issue or deliver,
upon the order of the holder of such Warrant Certificate, the Shares in
authorized denominations to which such holder is entitled, in fully registered
form in such name or names as maybe directed by such holder, and if such Warrant
Certificate was not exercised in full, upon request of the holder a new Warrant
Certificate evidencing the number of Warrants remaining unexercised shall be
issued if sufficient time remains prior to the Expiration Date.
(d) The Company will pay all documentary stamp taxes attributable to
the initial issuance of Warrants and of Shares upon the exercise of Warrants;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in the issue of
any Warrant Certificates or any certificates for Shares in a name other than the
registered holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
3.1. No Rights as Securityholders Conferred by Warrant Certificates. No
Warrant Certificate shall entitle the holder thereof to any of the rights of a
stockholder of the Company, including the right to receive the payment of
dividends on or vote the Shares.
3.2. Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Company and the Warrant Agent of evidence reasonably satisfactory
to them of the ownership and the loss, theft, destruction or mutilation of the
Warrant Certificate, and of indemnity reasonably satisfactory to them, and, in
the case of mutilation, upon surrender thereof to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost, stolen
or destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and for a like number of Warrants. Upon the issuance of any new
Warrant Certificate under this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expense (including the fees and expenses of
the Warrant Agent) in connection therewith. Every substitute Warrant Certificate
executed and delivered pursuant to this Section in lieu of any lost, stolen or
destroyed Warrant Certificate shall constitute an additional contractual
obligation of the Company, whether or not the lost,
5
<PAGE> 9
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) any and all other rights or remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
3.3. Holder of Warrant Certificate May Enforce Rights. Notwithstanding
any of the provisions of this Agreement, any holder of any Warrant Certificate,
without the consent of the Warrant Agent, the holder of any Shares or the holder
of any other Warrant Certificate, may, in his or her own behalf and for his or
her own benefit, enforce, and may institute and maintain any audit, action or
proceeding against the Company to enforce or otherwise in respect of, his right
to exercise his or her Warrant Certificate in the manner provided in his or her
Warrant Certificate and in his or her Agreement.
3.4. Call of Warrants by the Company. If so provided in the Warrant
Agreement, the Company shall have the right to call and repurchase any or all
Warrants at the price (the "Call Price") and on or after the date (the "Call
Date") and upon the terms (the "Call Terms") as shall be established from time
to time in or pursuant to resolutions of the Board of Directors of the Company
or in the Warrant Agreement before the issuance of such Warrants. Notice of such
Call Price, Call Date and Call Terms shall be given to registered holders of
Warrants in writing by the Company or the Warrant Agent.
3.5. Optional Reduction of Warrant Price. Subject to the limits, if
any, established from time to time by the Board of Directors of the Company or
in the Warrant Agreement, the Company shall have the right, at any time or from
time to time, voluntarily to reduce the then current Warrant Price to such
amount (the "Reduced Warrant Price") and for such period or periods of time,
which may be through the close of business on the Expiration Date (the "Reduced
Warrant Price Period"), as may be deemed appropriate by the Board of Directors
of the Company. Notice of any such Reduced Warrant Price and Reduced Warrant
Price Period shall be given to registered holders of Warrants in writing by the
Company or the Warrant Agent. After the termination of the Reduced Warrant Price
Period, the Warrant Price shall be such Warrant Price that would have been in
effect had there been no reduction in the Warrant Price pursuant to the
provisions of this Section 3.5.
3.6. Reservation of Shares. For the purpose of enabling it to satisfy
any obligation to issue shares upon exercise of Warrants, the Company will at
all times through the close of business on the Expiration Date, reserve and keep
available, free from preemptive rights and out of its aggregate authorized but
unissued or treasury shares of [Common/Preferred Stock], the number of Shares
deliverable upon the exercise of all outstanding Warrants, and the transfer
agent for the shares is hereby irrevocably authorized and directed at all times
to reserve such number of authorized and unissued or treasury shares of
[Common/Preferred Stock] as shall be required for such purpose. The Company will
keep a copy of this Agreement on file with such transfer agent and with every
transfer agent for any shares of the Company's capital stock issuable upon the
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exercise of Warrants. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from such transfer agent stock certificates
issuable upon exercise of outstanding Warrants, and the Company will supply such
transfer agent with duly executed stock certificates for such purpose.
Before taking any action that would cause an adjustment pursuant to
Section 3.7 reducing the Exercise Price below the then par value (if any) of the
Shares issuable upon exercise of the Warrants, the Company will take any
corporate action that may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
Shares at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the
Warrants will, upon issuance in accordance with the terms of this Agreement, be
fully paid and nonassessable and free from all taxes, liens, charges and
security interests created by or imposed upon the Company with respect to the
issuance and holding thereof.
3.7. Obtaining of Governmental Approvals and Stock Exchange Listings.
So long as any Warrants remain outstanding, the Company will take all necessary
steps (a) to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and to make filings under
federal and state securities acts and laws, which may be or become requisite in
connection with the issuance, sale, transfer and delivery of the Warrant
Certificates, the exercise of the Warrants and the issuance, sale, transfer and
delivery of the Shares issued upon excise of Warrants, and (b) to have the
shares of Stock immediately upon their issuance upon exercise of Warrants, (i)
listed on each national securities exchange on which the [Common/Preferred
Stock] is then listed or (ii) if the Preferred Stock is not then listed on any
national securities exchange, listed for quotation on the NASD Automated
Quotations System ("Nasdaq") National Market ("Nasdaq National Market") or such
other over-the-counter quotation system on which the Stock may then be listed.
3.8. Adjustment of Exercise Price and Number of Shares Purchasable or
Number of Warrants. The Exercise Price, the number of Shares purchasable upon
the exercise of each Warrant and the number of Warrants outstanding are subject
to adjustment from time to time upon the occurrence of the events enumerated in
this Section 3.8.
(a) If the Company shall (i) pay a dividend on its capital stock
(including [Common/Preferred Stock]) in shares of Stock, (ii) subdivide its
outstanding shares of [Common/Preferred Stock], (iii) combine its outstanding
shares of [Common/Preferred Stock] into smaller number of shares of
[Common/Preferred Stock] or (iv) issue any shares of its capital stock in a
reclassification of the [Common/Preferred Stock] (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the number of Shares purchasable upon
exercise of each Warrant immediately prior thereto shall be adjusted so that the
holder of each Warrant shall be entitled to receive the kind and number of
Shares or other securities of the Company which such holder would have owned or
have been entitled to receive after the happening of any of the events described
above, had such Warrant been
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exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this paragraph (a) shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event.
(b) In the event of any capital reorganization or any reclassification
of the [Common/Preferred Stock] (except as provided in paragraph (a) above or
paragraph (h) below), any holder of Warrants upon exercise thereof shall be
entitled to receive, in lieu of the [Common/Preferred Stock] to which he would
have become entitled upon exercise immediately prior to such reorganization or
reclassification, the shares (of any class or classes) or other securities or
property of the Company that he or she would have been entitled to receive at
the same aggregate Exercise Price upon such reorganization or reclassification
if his or her Warrants had been exercised immediately prior thereto; and in any
such case, appropriate provision (as determined in good faith by the Board of
Directors of the Company, whose determination shall be conclusive and shall be
evidenced by a resolution filed with the Warrant Agent) shall be made for the
application of this Section 3.8 with respect to the rights and interests
thereafter of the holders of Warrants (including the allocation of the adjusted
Warrant Price between or among shares of classes of capital stock), to the end
that this Section 3.8 (including the adjustments of the number of shares of
[Common/Preferred Stock] or other securities purchasable and the Warrant Price
thereof) shall thereafter be reflected, as nearly as reasonably practicable, in
all subsequent exercises of the Warrants for any shares or securities or other
property thereafter deliverable upon the exercise of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof, no
adjustment in the number of Shares purchasable hereunder shall be required
unless such adjustment would require an increase or decrease of at least one
percent (1%)in the number of Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of this
paragraph (c) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the
nearest cent and to the nearest one- hundredth of a Share, as the case may be.
(d) Whenever the number of Shares purchasable upon the exercise of each
Warrant is adjusted as herein provided (whether or not the Company then or
thereafter elects to issue additional Warrants in substitution for an adjustment
in the number of Shares as provided in paragraph (f), the Exercise Price payable
upon exercise of each Warrant shall be adjusted by multiplying such Exercise
Price immediately prior to such adjustment by a fraction, of which the numerator
shall be the number of Shares purchasable upon the exercise of each Warrant
immediately prior to such adjustment, and of which the denominator shall be the
number of Shares so purchasable immediately thereafter.
(e) For the purpose of this Section 3.8, the term "shares of Stock"
shall mean (i) the class of stock designated as the [Common/Preferred Stock] of
the Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassification of such shares consisting
solely of changes in par value, of from par value to no par value, or from no
par value to par value. If at any time, as a result of an
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adjustment made pursuant to paragraph (a) or (b) above, the holders of Warrants
shall become entitled to purchase any shares of the Company other than shares of
Stock, thereafter the number of such other shares so purchasable upon exercise
of each Warrant and the Exercise Price of such shares shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Shares contained in paragraphs
(a) through (d), inclusive, above, and the provisions of Section 2.1, 2.2, 2.3,
3.6, 3.7(a) and 3.10, with respect to the Shares, shall apply on like terms to
any such other shares.
(f) The Company may elect, on or after the date of any adjustment
required by paragraphs (a) through (b) of this Section 3.8, to adjust the number
of Warrants in substitution for an adjustment in the number of Shares
purchasable upon the exercise of a Warrant. Each of the Warrants outstanding
after such adjustment of the number of Warrants shall be exercisable for the
same number of shares as immediately prior to such adjustment. Each Warrant held
of record prior to such adjustment of the number of Warrants shall become that
number of Warrants (calculated to the nearest hundredth) obtained by dividing
the Warrant Price in effect prior to adjustment of the Warrant Price by the
Warrant Price in effect after adjustment of the Warrant Price. The Company shall
notify the holders of Warrants in the same manner as provided in the first
paragraph of Section 3.10, of its election to adjust the number of Warrants,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Exercise Price is adjusted or any day thereafter. Upon each adjustment of
the number of Warrants pursuant to this paragraph (f) the Company shall, as
promptly as practicable, cause to be distributed to holders of record of
Warrants on such record date Warrant Certificates evidencing, subject to Section
3.9, the additional Warrants to which such holders shall be entitled as a result
of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the
Warrant Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to be issued, executed and registered in the manner
specified in Section 1.3 and Article 4 (and which may bear, at the option of the
Company, the adjusted Exercise Price) and shall be registered in the names of
the holders of record of Warrant Certificates on the record date specified in
the notice.
(g) Except as provided in paragraph (a) of this Section 3.8, no
adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(h) In case of any consolidation of the Company with or merger of the
Company into another corporation or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, the Company or such successor or purchasing corporation, as the case
may be, shall execute with the Warrant Agent an agreement that each holder of a
Warrant shall have the right thereafter upon payment of the Warrant Price in
effect immediately prior to such action to purchase upon exercise of each
Warrant the kind and amount of shares and other securities and property which he
or she would have owned or have been entitled to
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receive after the happening of such consolidation, merger, sale or conveyance
had such Warrant been exercised immediately prior to such action. The Company
shall mail by first class mail, postage prepaid, to each holder of a Warrant,
notice of the execution of any such agreement. Such agreement shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 3.8. The provisions of this paragraph
(h) shall similarly apply to successive consolidations, mergers, sales or
conveyances. The Warrant Agent shall be under no duty or responsibility to
determine the correctness of any provisions contained in any provisions
contained in any such agreement relating either to the kind or amount of shares
of stock or other securities or property receivable upon exercise of Warrants or
with respect to the method employed and provided therein for any adjustments and
shall be entitled to rely upon the provisions contained in any such agreement.
(i) Irrespective of any adjustments in the Exercise Price or the number
or kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
3.9. Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of Warrants on
any distribution of Warrants to holders of Warrant Certificates or to distribute
Warrant Certificates that evidence fractional Warrants. In lieu of such
fractional Warrants, there shall be paid to the registered holder of the Warrant
Certificates with regard to which such fractional Warrants would otherwise be
issuable, an amount in cash equal to the same fraction of the current market
value of a full Warrant. For purposes of this Section, the current market value
of a Warrant shall be the closing price of one Warrant (as determined pursuant
to paragraph (c) below) for the trading day immediately prior to the date on
which such fractional Warrant would have been otherwise issuable.
(b) Notwithstanding any adjustment pursuant to Section 3.9 in the
number of Shares purchasable upon the exercise of a Warrant, the Company shall
not be required to issue fractions of Shares upon exercise of the Warrants or to
distribute certificates which evidence fractional Shares. In lieu of fractional
Shares, there shall be paid to the registered holders of Warrant Certificates at
the time such Warrant Certificates are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of a share of
[Common/Preferred Stock]. For purposes of this Section 3.9, the current market
value of a share of [Common/Preferred Stock] shall be the closing price of a
share of Common/Preferred Stock] (as determined pursuant to paragraph (c) below)
for the trading day immediately prior to the date of such exercise.
(c) The closing price for each day shall be the last sale price,
regular way, or, if no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, for such day, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Warrants or Stock, as the case may be, is not listed or admitted to
trading on such exchange, as reported on the principal consolidated
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transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Warrants or [Common/Preferred Stock],
respectively, is listed or admitted to trading, or if the Warrants or
[Common/Preferred Stock], as the case may be, is not listed or admitted to
trading on any national securities exchange, as reported on Nasdaq National
Market or, if the Warrants or Stock, as the case may be, is not listed or
admitted to trading on the Nasdaq National Market, as reported on Nasdaq.
3.10. Notices to Warrantholders. Upon any adjustment of the number of
Shares purchasable upon exercise of each Warrant, the Warrant Price or the
number of Warrants outstanding, the Company within 20 calendar days thereafter
shall (i) cause to be filed with the Warrant Agent a certificate of a firm of
independent public accountants of recognized standing selected by the Company
(who may be the regular auditors of the Company) setting forth the Warrant Price
and either the number of Shares purchasable upon exercise of each Warrant or the
additional number of Warrants to be issued for each previously outstanding
Warrant, as the case may be, after such adjustment and setting forth in
reasonable detail the method of calculation and the facts upon which such
adjustment was made, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause to be given to each
of the registered holders of the Warrant Certificates at such holder's address
appearing on the Warrant Register written notice of such adjustments by first
class mail, postage prepaid. Where appropriate, such notice may be given in
advance and included as part of the notice required to be mailed under the other
provisions of this Section 3.10.
The Company shall cause written notice of such later Distribution Date,
such later Expiration Date, such Call Price, Call Date and Call Terms and such
Reduced Exercise Price and Reduced Exercise Price Period, as the case may be, to
be given as soon as practicable to the Warrant Agent and to each of the
registered holders of the Warrant Certificates by first class mail, postage
prepaid, at such holder's address appearing on the Warrant Register. In addition
to the written notice referred to in the preceding sentence, the Company shall
make a public announcement in a daily morning newspaper of general circulation
in New York City and in San Francisco of such earlier Distribution Date, such
later Expiration Date, such Call Price, Call Date and Call Terms and such
Reduced Exercise Price and Reduced Exercise Price Period, as the case may be, at
least on week for two successive weeks prior to the implementation of such
terms.
If:
(a) the Company shall declare any dividend payable in any securities
upon its shares of [Common/Preferred Stock] or make any distribution (other than
a cash dividend) to the holders of is shares of [Common/Preferred Stock], or
(b) the Company shall offer to the holders of its shares of
[Common/Preferred Stock] any additional shares of [Common/Preferred Stock] or
securities convertible into shares of [Common/Preferred Stock] or any right to
subscribe thereto, or
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(c) there shall be a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger or sale of all or
substantially all of its property, assets and business as an entirety),
(d) the Company shall cause written notice of such event to be filed
with the Warrant Agent and shall cause written notice of such event to be given
to each of the registered holders of the Warrant Certificates as such holder's
address appearing on the Warrant Register, by first class mail, postage prepaid,
and (ii) make a public announcement in a daily newspaper of general circulation
in New York City and in San Francisco of such event, such giving of notice and
publication to be completed at least 10 calendar days (or 20 calendar days in
any case specified in clause (c) above) prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be. The failure
to give the notice required by this Section 3.10 or any defect therein shall not
affect the legality or validity of any distribution, right, warrant,
dissolution, liquidation or winding up or the vote upon or any other action
taken in connection therewith.
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1. Exchange and Transfer. Upon surrender at the corporate trust
office of the Warrant Agent, Warrant Certificates evidencing Warrants may be
exchanged for Warrant Certificates in other denominations evidencing such
Warrants and the transfer of Warrants may be registered in whole or in part;
provided that such other Warrant Certificates shall evidence the same aggregate
number of Warrants as the Warrant Certificates surrendered for exchange or
registration of transfer. The Warrant Agent shall keep, at its corporate trust
office, books in which it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office for exchange or
registration of transfer, properly completed and duly endorsed and duly signed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed (under the Medallion Program) by (a) a bank or trust company, (b) a
broker or dealer that is a member of the Nasdaq or (c) a member of a national
securities exchange and accompanied by appropriate instruments of registration
of transfer and written instructions for transfer, all in form satisfactory to
the Company and the Warrant Agent. No service charge shall be made for any
exchange or registration of transfer of Warrant Certificates, but the Company
may require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are surrendered for
exchange or registration of transfer, an authorized officer of the Warrant Agent
shall mutually countersign and deliver to the person or persons entitled thereto
a Warrant Certificate or Warrant Certificate duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect any
exchange or registration of transfer that
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will result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same
obligations and entitled to the same benefits under this Agreement as the
Warrant Certificates surrendered for such exchange or registration of transfer.
4.2. Treatment of Holders of Warrant Certificates. Every holder of a
Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and with every subsequent holder of such Warrant
Certificate that, until the transfer of the Warrant Certificate is registered on
the books of the Warrant Agent, the Company and the Warrant Agent may treat the
registered holder as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
4.3. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exercise, registration of transfer or exchange shall, if
surrendered to the Company, be delivered to the Warrant Agent, and all Warrant
Certificates surrendered or so delivered to the Warrant Agent shall be promptly
canceled by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in
lieu thereof. The Warrant Agent shall deliver to the Company from time to time,
or otherwise dispose of, canceled Warrant Certificates in manner satisfactory to
the Company.
ARTICLE 5
CONCERNING THE WARRANT AGENT
5.1. Warrant Agent. The Company hereby appoints the Warrant Agent as
the Warrant Agent of the Company in respect of the Warrant Certificates upon the
terms and subject to the conditions herein set forth, and the Warrant Agent
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and by
this Agreement, and such further powers and authority to act on behalf of the
Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
5.2. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following (to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject):
(a) Performance by the Company. The Company agrees that it will take
any corporate action that may be reasonably necessary in order to fulfill its
obligations under this Agreement, and the Warrant Certificates, and that it will
not take any action that would impair its ability to perform its obligations
under this Agreement and the Warrant Certificates.
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(b) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including reasonable counsel fees)
incurred by the Warrant Agent in connection with the services rendered hereunder
by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent,
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as the Warrant Agent hereunder, as well as the costs
and expenses of defending against any claim of liability in the premises.
(c) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as an agent of the Company, and the Warrant Agent does not assume any obligation
or relationship of agency or trust for or with any of the owners or holders of
the Warrant Certificates.
(d) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion of such counsel.
(e) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(f) Certain Transactions. The Warrant Agent and its officers, directors
and employees may buy, sell or deal in any of the Shares or other securities of
the Company and may become the owner of, or acquire any interest in, any Warrant
Certificates, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, they
may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of the Shares or other obligations of the Company as freely as
if it were not the Warrant Agent.
(g) No Liability for Interest. Except as set forth in the Warrant
Agreement, the Warrant Agent shall not be under any liability for interest on
any moneys or other consideration at any time received by it pursuant to any of
the provisions of this Agreement or of the Warrant Certificates.
(h) No Liability for Invalidity. The Warrant Agent shall not incur any
liability with respect to the validity of this Agreement or any of the Warrant
Certificates.
(i) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals or representations contained herein or in
the Warrant Certificates (except the Warrant Agent shall be responsible for any
representations of the
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Warrant Agent herein and for its countersignature on the Warrant Certificates),
all of which are made solely by the Company.
(j) No Implied Obligations. The Warrant Agent shall be obligated to
perform such duties as are herein and in the Warrant Certificates specifically
set forth, but no implied duties or obligations shall be read into this
Agreement or the Warrant Certificates against the Warrant Agent. The Warrant
Agent shall not be under any obligation to take any action hereunder which may
tend to involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The Warrant
Agent shall not be accountable or under any duty or responsibility for the use
by the Company of any of the Warrant Certificates authenticated by the Warrant
Agent and delivered by it to the Company pursuant to this Agreement or for the
application or by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have not duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained in the
Warrant Certificates or in the case of the receipt of any written demand from a
holder or a Warrant Certificate with respect to such default, including any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or to make any demands upon the Company.
(k) Instructions. The Warrant Agent is hereby authorized and directed
to accept instructions with respect to the performance of its duties hereunder
from the Chairman of the Board, the Chief Executive Officer, the President, any
Vice President, the Treasurer, the Secretary or any Assistant Secretary of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such officer or
in good faith reliance upon any statement signed by any one of such officer of
the Company with respect to any fact or matter (unless other evidence in respect
thereof is herein specifically prescribed) which may be deemed to be
conclusively proved and established by such signed statement.
5.3. Registration and Appointment of Successor Warrant Agent.
(a) The Company agrees, for the benefit of the holders from time to
time of the Warrant Certificates, that at all times there shall be a Warrant
Agent hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than 60 days after the date on which such notice is given
unless the Company agrees to accept less notice. The Warrant Agent may be
removed at any time by the filing with it of an instrument in writing signed by
or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized and doing business under
the laws of the United States of America or of any State, in good standing, and
authorized under such laws to exercise corporate trust powers) and the
acceptance of such
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appointment by such successor Warrant Agent. Upon its resignation or removal,
the Warrant Agent shall be entitled to the payment by the Company of the
compensation agreed to under Section 5.2(b) hereof for, and to the reimbursement
of all reasonable out-of-pocket expenses incurred in connection with, the
services rendered hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be removed,
or shall become incapable of acting, or shall be adjudged bankrupt or insolvent,
or shall file a petition seeking relief under the Federal Bankruptcy Code, as
now constituted or hereafter amended, or under any other applicable federal or
state bankruptcy law or similar law or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to pay
or meet its debts as they mature, or if a receiver or custodian of it or of all
or any substantial part of its property shall be appointed, or if an order of
any court shall be entered for relief against it under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy or similar law or if any public officer shall have
taken charge or control of the Warrant Agent or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor Warrant
Agent, qualified in accordance with the terms of this Agreement, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment of a successor Warrant Agent and acceptance
by the latter of such appointment, the Warrant Agent so superseded shall cease
to be the Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all moneys,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that is shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of the parties hereto.
16
<PAGE> 20
ARTICLE 6
MISCELLANEOUS
6.1. Supplements and Amendments. This Agreement may be amended or
supplemented from time to time by the parties hereto, without the consent of the
holder of any Warrant Certificate, for the purpose of curing any ambiguity, or
of curing, correcting or supplementing any defective provision contained herein,
or in regard to matters or questions arising under this Agreement as the Company
and the Warrant Agent may deem necessary or desirable, provided such action
shall not adversely affect the interest of the holders of the Warrant
Certificates.
6.2. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
6.3. Addresses. Any communication to the Warrant Agent with respect to
this Agreement shall be addressed to the address set forth in the Warrant
Agreement, and any such communication to the Company shall be addressed to the
Company at the following address:
Citadel Communications Corporation
City Center West
Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
Attention: Chief Financial Officer
or such other address as shall be specified in writing by the Warrant Agent or
by the Company.
17
<PAGE> 21
6.4. Delivery of Prospectus. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver to
such holder, prior to or concurrently with the delivery of the Shares issued
upon such exercise, a copy of the prospectus.
6.5. Obtaining of Governmental Approvals. The Company will from time to
time take all action that may be necessary to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities and
securities acts filings under federal and state laws, which may be or become
requisite in connection with the issuance, sale, transfer and delivery of the
Warrant Certificates, the exercise of the Warrants, and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of the Warrants or upon
the expiration of the period during which the Warrants are exercisable.
6.6. Persons Having Rights under Warrant Agreement. Nothing in this
Agreement is intended, or shall be construed, to confer upon, or give to, any
person or corporation other than the Company, the Warrant Agent and the holders
of the Warrant Certificates, any right, remedy or claim under or by reason of
this Agreement or of any covenant, condition, stipulation, promise or agreement
hereof. All covenants, conditions, stipulations, promises and agreements
contained in this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and their successors and of the holders of the
Warrant Certificates.
6.7. Headings. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
6.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
6.9. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
6.10. Governing Law. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
California and for all purposes shall be construed in accordance with the laws
of such State.
6.11. Successors. All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Warrant Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
18
<PAGE> 22
6.12. Termination. This Agreement shall terminate at the close of
business on the Expiration Date. Notwithstanding the foregoing, this Agreement
will terminate on any earlier date when the Warrants have been exercised.
19
<PAGE> 1
EXHIBIT 4.16
CERTIFICATE OF TRUST OF
CCC CAPITAL TRUST I
THIS CERTIFICATE OF TRUST OF CCC CAPITAL TRUST I (the "Trust"), dated
December 6, 1999, is being duly executed and filed by the undersigned trustees
for the purposes of organizing a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. Section 3801 et seq.).
1. NAME. The name of the business trust formed hereby is CCC Capital
Trust I.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust with its principal place of business in the State of Delaware is The
Bank of New York (Delaware), Route 273, 110 White Clay Center, Newark, Delaware
19711.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely
as trustee of the Trust
By: /s/ Frederick W. Clark
---------------------------------------
Name: Frederick W. Clark
Title: Authorized Signatory
THE BANK OF NEW YORK,
not in its individual capacity but solely
as trustee of the Trust
By: /s/ Van K. Brown
---------------------------------------
Name: Van K. Brown
Title: Assistant Vice President
<PAGE> 1
EXHIBIT 4.17
CERTIFICATE OF TRUST OF
CCC CAPITAL TRUST II
THIS CERTIFICATE OF TRUST OF CCC CAPITAL TRUST II (the "Trust"), dated
December 6, 1999, is being duly executed and filed by the undersigned trustees
for the purposes of organizing a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. Section 3801 et seq.).
1. NAME. The name of the business trust formed hereby is CCC Capital
Trust II.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust with its principal place of business in the State of Delaware is The
Bank of New York (Delaware), Route 273, 110 White Clay Center, Newark, Delaware
19711.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely
as trustee of the Trust
By: /s/ Frederick W. Clark
---------------------------------------
Name: Frederick W. Clark
Title: Authorized Signatory
THE BANK OF NEW YORK,
not in its individual capacity but solely
as trustee of the Trust
By: /s/ Van K. Brown
---------------------------------------
Name: Van K. Brown
Title: Assistant Vice President
<PAGE> 1
EXHIBIT 4.18
CCC CAPITAL TRUST I
DECLARATION OF TRUST
THIS DECLARATION OF TRUST, dated as of December 6, 1999,
is by and between Citadel Communications Corporation, a Nevada corporation,
as depositor (the "Depositor"), The Bank of New York, a New York banking
corporation, as property trustee (the "Property Trustee") and The Bank of New
York (Delaware), a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee" and jointly with the Property Trustee, the "Trustees"). The
Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"CCC CAPITAL TRUST I".
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. Such amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Sections 3801 et seq. (the "Business Trust Act"),
and that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended
and restated Declaration of Trust, satisfactory to each such party and
substantially in the form to be included as an Exhibit to the Registration
Statement referred to below, to provide for the contemplated operation of the
Trust created hereby and the issuance of the preferred securities (the
"Preferred Securities") and common securities referred to therein. Prior to the
execution and delivery of such amended and restated Declaration of Trust, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise.
4. The Depositor, in each case on behalf of the Trust as the
depositor of the Trust, is hereby authorized, in its discretion (i) to execute
and file with the Securities and Exchange Commission (the "Commission") (a) a
Registration Statement on Form S-3 (the "Registration Statement") and any
pre-effective or post-effective amendments to such Registration Statement,
relating to the registration under the Securities Act of 1933, as amended, of
the Preferred Securities of the Trust, and (b) a Registration Statement on Form
8-A (the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto)
<PAGE> 2
-2-
relating to the registration of the Preferred Securities of the Trust under
Section 12(b) of the Securities Exchange Act of 1934, as amended; (ii) to
execute and file with the New York Stock Exchange, the American Stock Exchange
or such other national securities exchange or the Nasdaq National Market, as the
Depositor shall determine, a listing or similar application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
or approved for quotation on the New York Stock Exchange, the American Stock
Exchange or such other national securities exchange or the Nasdaq National
Market; (iii) to execute and file such applications, reports, surety bonds,
irrevocable consents, appointments of attorneys for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor on behalf of the Trust, may deem necessary or
desirable and (iv) to execute on behalf of the Trust such purchase agreements or
underwriting agreements relating to the Preferred Securities as the Depositor
may deem necessary or desirable. It is hereby acknowledged and agreed that in
connection with any filing referred to in clauses (i) - (iii) above, the
Trustees shall not be required to join in any such filing or execute on behalf
of the Trust any such document unless required by the rules and regulations of
the Commission, the New York Stock Exchange, the American Stock Exchange or such
other national securities exchange, or the Nasdaq National Market or state
securities or "Blue Sky" laws, and in such case only to the extent so required.
In connection with all of the foregoing, the Depositor hereby constitutes and
appoints Lawrence R. Wilson and Donna L. Heffner and each of them, as its true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor in the Depositor's name, place and stead, in
any and all capacities, to sign and file with the Commission (i) the
Registration Statement and the 1934 Act Registration Statement and any and all
amendments (including post-effective amendments) to the Registration Statement
and the 1934 Act Registration Statement with all exhibits thereto, and other
documents in connection therewith, and (ii) a registration statement and any and
all amendments thereto filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, with all exhibits thereto, and all other documents in
connection therewith, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Depositor might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of trustees initially shall be two (2) and
thereafter the number of trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of trustees; provided that to the extent required by the
Business Trust Act, one trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal
<PAGE> 3
-3-
place of business in the State of Delaware. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
time. Any Trustee may resign upon thirty days prior notice to the Depositor.
7. This Declaration of Trust shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to conflict of laws principles.
8. The Depositor hereby agrees to (i) reimburse the Trustees
for all reasonable expenses (including reasonable fees and expenses of counsel
and other experts) and (ii) indemnify, defend and hold harmless the Trustees and
any of the officers, directors, employees and agents of the Trustees (the
"Indemnified Persons") from and against any and all losses, damages,
liabilities, claims, actions, suits, costs, expenses, disbursements (including
the reasonable fees and expenses of counsel), taxes and penalties of any kind
and nature whatsoever (collectively, "Expenses"), to the extent that such
Expenses arise out of or are imposed upon or asserted at any time against such
Indemnified Persons with respect to the performance of this Declaration of
Trust, the creation, operation or termination of the Trust or the transactions
contemplated hereby; provided, however, that the Depositor shall not be required
to indemnify any Indemnified Person for any Expenses which are a result of the
willful misconduct, bad faith or gross negligence of such Indemnified Person.
9. The Trust may be dissolved and terminated before the
issuance of the Preferred Securities at the election of the Depositor.
<PAGE> 4
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of Trust to
be duly executed as of the day and year first above written.
CITADEL COMMUNICATIONS CORPORATION,
as Depositor
By: /s/ Lawrence R. Wilson
----------------------------------------
Name: Lawrence R. Wilson
Title: Chairman of the Board,
Chief Executive Officer
and President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely
as Delaware Trustee
By: /s/ Walter N. Gitlin
----------------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
THE BANK OF NEW YORK,
not in its individual capacity but solely
as Property Trustee
By: /s/ Van K. Brown
-----------------------------------------
Name: Van K. Brown
Title: Assistant Vice President
<PAGE> 1
EXHIBIT 4.19
CCC CAPITAL TRUST II
DECLARATION OF TRUST
THIS DECLARATION OF TRUST, dated as of December 6, 1999,
is by and between Citadel Communications Corporation, a Nevada corporation,
as depositor (the "Depositor"), The Bank of New York, a New York banking
corporation, as property trustee (the "Property Trustee") and Bank of New York
(Delaware), a Delaware banking corporation, as Delaware trustee (the "Delaware
Trustee" and jointly with the Property Trustee, the "Trustees"). The Depositor
and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "CCC CAPITAL
TRUST II".
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. Such amount shall constitute the initial trust estate.
The Trustees hereby declare that they will hold the trust estate in trust for
the Depositor. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"), and that this
document constitute the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and restated
Declaration of Trust, satisfactory to each such party and substantially in the
form to be included as an Exhibit to the Registration Statement referred to
below, to provide for the contemplated operation of the Trust created hereby and
the issuance of the preferred securities (the "Preferred Securities") and common
securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor, in each case on behalf of the Trust as the depositor of
the Trust, is hereby authorized, in its discretion (i) to execute and file with
the Securities and Exchange Commission (the "Commission") (a) a Registration
Statement on Form S-3 (the "Registration Statement") and any pre-effective or
post-effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust, and (b) a Registration Statement on Form 8-A (the "1934
Act Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the
<PAGE> 2
-2-
Securities Exchange Act of 1934, as amended; (ii) to execute and file with the
New York Stock Exchange, the American Stock Exchange or such other national
securities exchange or the Nasdaq National Market, as the Depositor shall
determine, a listing or similar application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed or approved for
quotation on the New York Stock Exchange, the American Stock Exchange or such
other national securities exchange or the Nasdaq National Market; (iii) to
execute and file such applications, reports, surety bonds, irrevocable consents,
appointments of attorneys for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor on
behalf of the Trust, may deem necessary or desirable and (iv) to execute on
behalf of the Trust such purchase agreements or underwriting agreements relating
to the Preferred Securities as the Depositor may deem necessary or desirable. It
is hereby acknowledged and agreed that in connection with any filing referred to
in clauses (i) - (iii) above, the Trustees shall not be required to join in any
such filing or execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the New York Stock Exchange, the
American Stock Exchange our such other national securities exchange, or the
Nasdaq National Market or state securities or "Blue Sky" laws, and in such case
only to the extent so required. In connection with all of the foregoing, the
Depositor hereby constitutes and appoints Lawrence R. Wilson and Donna L.
Heffner and each of them, as its true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for the Depositor in the
Depositor's name, place and stead, in any and all capacities, to sign and file
with the Commission (i) the Registration Statement and the 1934 Act Registration
Statement and any and all amendments (including post-effective amendments) to
the Registration Statement and the 1934 Act Registration Statement with all
exhibits thereto, and other documents in connection therewith, and (ii) a
registration statement and any and all amendments thereto filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with all exhibits thereto,
and all other documents in connection therewith, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or his substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration of Trust may be executed in one or more counterparts.
6. The number of trustees initially shall be two (2) and thereafter the
number of trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of trustees; provided that to the extent required by the Business Trust
Act, one trustee shall either be a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware. Subject to the foregoing, the Depositor is
entitled to
<PAGE> 3
-3-
appoint or remove without cause any Trustee at any time. Any Trustee may resign
upon thirty days prior notice to the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to conflict
of laws principles.
8. The Depositor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against any and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such Indemnified Persons with
respect to the performance of this Declaration of Trust, the creation, operation
or termination of the Trust or the transactions contemplated hereby; provided,
however, that the Depositor shall not be required to indemnify any Indemnified
Person for any Expenses which are a result of the willful misconduct, bad faith
or gross negligence of such Indemnified Person.
9. The Trust may be dissolved and terminated before the issuance of the
Preferred Securities at the election of the Depositor.
<PAGE> 4
-4-
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
CITADEL COMMUNICATIONS
CORPORATION,
as Depositor
By: /s/ Lawrence R. Wilson
-------------------------------------
Name: Lawrence R. Wilson
Title: Chairman of the Board,
Chief Executive Officer
and President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely
as Delaware Trustee
By: /s/ Walter N. Gitlin
--------------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
THE BANK OF NEW YORK,
not in its individual capacity but solely
as Property Trustee
By: /s/ Van K. Brown
--------------------------------------
Name: Van K. Brown
Title: Assistant Vice President
<PAGE> 1
EXHIBIT 4.20
AMENDED AND RESTATED DECLARATION OF TRUST
among
CITADEL COMMUNICATIONS CORPORATION
as Depositor
THE BANK OF NEW YORK,
as Property Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
and the several Holders of the Trust Securities
-------------------
Dated as of [ ], 1999
-------------------
CCC CAPITAL TRUST I
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C> <C>
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions.........................................................................................1
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name...............................................................................................12
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business........................................13
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses....................................13
SECTION 2.4. Issuance of the Preferred Securities...............................................................13
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures.........................................................................13
SECTION 2.6. Continuation of Trust..............................................................................14
SECTION 2.7. Authorization to Enter into Certain Transactions...................................................14
SECTION 2.8. Assets of Trust....................................................................................18
SECTION 2.9. Title to Trust Property............................................................................18
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account....................................................................................18
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions......................................................................................19
SECTION 4.2. Redemption.........................................................................................20
SECTION 4.3. Subordination of Common Securities.................................................................22
SECTION 4.4. Payment Procedures.................................................................................23
SECTION 4.5. Withholding Tax....................................................................................23
SECTION 4.6. Tax Returns and Reports............................................................................24
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Issuer Trust.................................................24
SECTION 4.8. Payments Under Indenture or Pursuant to Direct Actions.............................................24
</TABLE>
i
<PAGE> 3
<TABLE>
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Page
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<S> <C> <C>
SECTION 4.9. Liability of the Holder of Common Securities......................................................24
SECTION 4.10. Other Purchases of Preferred Securities...........................................................24
ARTICLE V.
SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.................................................................................25
SECTION 5.2. The Securities Certificates.......................................................................25
SECTION 5.3. Execution and Delivery of Securities Certificates.................................................26
SECTION 5.4. Book-Entry Preferred Securities ..................................................................26
SECTION 5.5. Registration of Transfer and Exchange of Preferred Securities Certificates........................28
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Securities Certificates......................................29
SECTION 5.7. Persons Deemed Holders............................................................................30
SECTION 5.8. Access to List of Holders' Names and Addresses....................................................30
SECTION 5.9. Maintenance of Office or Agency...................................................................30
SECTION 5.10. Appointment of Paying Agents......................................................................30
SECTION 5.11. Ownership of Common Securities by Depositor.......................................................31
SECTION 5.12. Notices to Clearing Agency........................................................................31
SECTION 5.13. Rights of Holders; Waivers of Past Defaults.......................................................31
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.......................................................................33
SECTION 6.2. Notice of Meetings.................................................................................34
SECTION 6.3. Meetings of Holders of the Preferred Securities....................................................35
SECTION 6.4. Voting Rights......................................................................................35
SECTION 6.5. Proxies, Etc.......................................................................................35
SECTION 6.6. Holder Action by Written Consent...................................................................35
SECTION 6.7. Record Date for Voting and Other Purposes..........................................................36
SECTION 6.8. Acts of Holders....................................................................................36
SECTION 6.9. Inspection of Records..............................................................................37
</TABLE>
ii
<PAGE> 4
<TABLE>
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ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee..................................................................37
SECTION 7.2. Representations and Warranties of Depositor........................................................38
ARTICLE VIII.
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities...............................................................39
SECTION 8.2. Certain Notices...................................................................................42
SECTION 8.3. Certain Rights of Property Trustee................................................................42
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities............................................44
SECTION 8.5. May Hold Securities...............................................................................44
SECTION 8.6. Compensation; Indemnity; Fees.....................................................................44
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer Trustees
and Administrators....................................................................46
SECTION 8.8. Conflicting Interests.............................................................................46
SECTION 8.9. Co-Trustees and Separate Trustee..................................................................47
SECTION 8.10. Resignation and Removal; Appointment of Successor.................................................48
SECTION 8.11. Acceptance of Appointment by Successor............................................................49
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.......................................50
SECTION 8.13. Preferential Collection of Claims Against Depositor or Issuer Trust...............................50
SECTION 8.14. Property Trustee May File Proofs of Claim.........................................................50
SECTION 8.15. Reports by Property Trustee.......................................................................51
SECTION 8.16. Reports to the Property Trustee...................................................................52
SECTION 8.17. Evidence of Compliance with Conditions Precedent..................................................52
SECTION 8.18. Number of Issuer Trustees.........................................................................52
SECTION 8.19. Delegation of Power...............................................................................52
SECTION 8.20. Appointment of Administrators.....................................................................53
ARTICLE IX.
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution upon Expiration Date..................................................................53
SECTION 9.2. Early Dissolution.................................................................................53
SECTION 9.3. Termination.......................................................................................54
SECTION 9.4. Liquidation.......................................................................................54
</TABLE>
iii
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<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of Issuer Trust.............................55
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders..................................................................57
SECTION 10.2. Agreed Tax Treatment of Issuer Trust and Trust Securities........................................57
SECTION 10.3. Amendment........................................................................................57
SECTION 10.4. Separability.....................................................................................59
SECTION 10.5. Governing Law....................................................................................59
SECTION 10.6. Payments Due on Non-Business Day.................................................................59
SECTION 10.7. Successors.......................................................................................60
SECTION 10.8. Headings.........................................................................................60
SECTION 10.9. Reports, Notices and Demands.....................................................................60
SECTION 10.10. Agreement Not to Petition........................................................................61
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture Act...........................................61
SECTION 10.12. Acceptance of Terms of Declaration of Trust, Guarantee Agreement
and Indenture.........................................................................61
Exhibit A Certificate of Trust of CCC Capital Trust I
Exhibit B Form of Letter of Representations
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities Certificate
</TABLE>
iv
<PAGE> 6
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of [ ],
1999, among (i) Citadel Communications Corporation, a Nevada corporation
(including any successors or assigns, the "Depositor"), (ii) The Bank of New
York, a New York banking corporation, as property trustee (in such capacity, the
"Property Trustee"), (iii) The Bank of New York (Delaware), a Delaware banking
corporation, as Delaware trustee (in such capacity, the "Delaware Trustee") (the
Property Trustee and the Delaware Trustee being referred to collectively as the
"Issuer Trustees"), and (iv) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee, and the Delaware
Trustee have heretofore duly created a business trust pursuant to the Delaware
Business Trust Act by entering into a Declaration of Trust, dated as of December
, 1999 (the "Original Declaration of Trust), and by the execution and filing by
the Delaware Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on December , 1999, attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees desire to
amend and restate the Original Declaration of Trust in its entirety as set forth
herein to provide for, among other things, (i) the issuance of the Common
Securities by the Issuer Trust to the Depositor, (ii) the issuance and sale of
the Preferred Securities by the Issuer Trust pursuant to the Underwriting
Agreement, (iii) the acquisition by the Issuer Trust from the Depositor or
Subsidiary of all of the right, title and interest in the Debentures, and (iv)
the appointment of the Administrators;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each party, for the
benefit of the other parties and for the benefit of the Holders, hereby amends
and restates the Original Declaration of Trust in its entirety and agrees as
follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions. For all purposes of this Declaration
of Trust, except as otherwise expressly provided or unless the context otherwise
requires:
(a) The terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
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<PAGE> 7
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
(e) Unless the context otherwise requires, any reference to an
"Article", a "Section" or an "Exhibit" refers to an Article, a Section
or an Exhibit, as the case may be, of or to this Declaration of Trust;
and
(f) The words "hereby", "herein", "hereof" and "hereunder" and
other words of similar import refer to this Declaration of Trust as a
whole and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6 of
the Indenture.
"Additional Taxes" has the meaning specified in Section 1.1 of
the Indenture.
"Administrators" means each Person appointed in accordance
with Section 8.20 solely in such Person's capacity as Administrator of the
Issuer Trust and not in such Person's individual capacity, or any successor
Administrator appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Preferred Security, the rules and procedures
of the Clearing Agency for such Book-Entry Preferred Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
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<PAGE> 8
respect of such Person under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of
its property or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or
of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.10.
"Board of Directors" means the board of directors of the
Depositor or the Executive Committee of the board of directors of the Depositor
(or any other committee of the board of directors of the Depositor performing
similar functions) or a committee designated by the board of directors of the
Depositor (or any such committee), comprised of two or more members of the board
of directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or officers of the Depositor to
which authority to act on behalf of the Board of Directors has been delegated
and to be in full force and effect on the date of such certification, and
delivered to the Issuer Trustees.
"Book-Entry Preferred Security" means a Preferred Security,
the ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 5.4.
"Business Day" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed or (c) a day
on which the Property Trustee's Corporate Trust Office or the Corporate Trust
Office of the Debenture Trustee is closed for business.
"Cedel" means Cedel Bank, societe anonyme (or any successor
securities clearing agency).
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<PAGE> 9
"Certificate Depository Agreement" means the agreement among
the Issuer Trust, the Depositor and DTC, as the initial Clearing Agency, dated
as of the Closing Date, substantially in the form attached as Exhibit B, as the
same may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. DTC will be the
initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the Time of Delivery, which date is also
the date of execution and delivery of this Declaration of Trust.
"Code" means the United States Internal Revenue Code of 1986,
as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Securities and Exchange
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $__ and having
the rights provided therefor in this Declaration of Trust, including the right
to receive Distributions and a Liquidation Distribution to the extent provided
herein.
"Common Securities Default" has the meaning specified in
Section 4.3(b).
"Corporate Trust Office" means (i) when used with respect to
the Property Trustee, the principal corporate trust office of the Property
Trustee located in the City of New York, which at the time of the execution of
this Declaration of Trust is located at 101 Barclay Street, Floor 21 West, New
York, New York 10286; Attention: Corporate Trust Administration.
"Debenture Issuer" means the issuer of Debentures, which could
be the Depositor or the Subsidiary.
"Debenture Event of Default" means any "Event of Default"
specified in Section 5.1 of the Indenture.
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<PAGE> 10
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for redemption of
such Debentures under the Indenture, including any date fixed for redemption
pursuant to the exercise by the Debenture Issuer of its optional right to redeem
the Debentures prior to their stated maturity [either (i) in whole or in part
after a certain date specified in the applicable prospectus supplement or (ii)]
in whole but not in part after the occurrence of a Tax Event or an Investment
Company Act Event.
"Debenture Trustee" means the Person identified as the
"Trustee" in the Indenture, solely in its capacity as Trustee pursuant to the
Indenture and not in its individual capacity, or its successor in interest in
such capacity, or any successor Trustee appointed as provided in the Indenture.
"Debentures" means either the Depositor's [ ]% Junior
Subordinated Debentures issued pursuant to the Indenture or the Subsidiary's [
]% Junior Subordinated Debentures issued pursuant to the Indenture, as the case
may be.
"Declaration of Trust" means this Amended and Restated
Declaration of Trust, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including (i) all exhibits,
and (ii) for all purposes of this Declaration of Trust and any such
modification, amendment or supplement, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this Declaration of Trust and any
such modification, amendment or supplement, respectively.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (i) Preferred Securities Certificates issued
as Global Preferred Securities as provided in Section 5.2 or 5.4, and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.2, 5.4 or 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et seq., or any successor statute
thereto, in each case as amended from time to time.
"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Declaration of Trust, solely in its
capacity as Delaware Trustee of the Issuer Trust and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Delaware trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration of Trust.
"Distribution Date" has the meaning specified in Section
4.1(a).
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<PAGE> 11
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust and Clearing Company or any
successor thereto.
"Early Dissolution Event" has the meaning specified in Section
9.2.
"ERISA" means the Employee Retirement Income Security Act of
1974, and any successor statute thereto, in each case as amended from time to
time.
"Euroclear" means the Euroclear Clearance System (or any
successor securities clearing agency), as operated by Morgan Guaranty Trust
Company of New York, Brussels office.
"European Preferred Securities" means Preferred Securities
that are sold to investors in Europe and settled through Euroclear and Cedel.
"Event of Default" means any one of the following events
(whatever the reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Issuer Trust in the payment of any
Redemption Price of any Trust Security when it becomes due and payable;
or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Issuer Trustees in this
Declaration of Trust (other than those specified in clause (b) or (c)
above) and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the Issuer Trustees and to the Depositor by the Holders of at least 25%
in aggregate Liquidation Amount of the Outstanding Preferred Securities
a written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee if a successor Property Trustee has not been appointed
within 90 days thereof.
6
<PAGE> 12
"Exchange Act" means the Securities Exchange Act of 1934, and
any successor statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities, dated as of the Closing Date, between the Depositor, in its
capacity as holder of the Common Securities, and the Issuer Trust, substantially
in the form attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Extension Period" has the meaning specified in Section 3.12.
of the Indenture.
"Global Preferred Security" means a Preferred Securities
Certificate evidencing ownership of Book-Entry Preferred Securities.
"Guarantee Agreement" means the Guarantee Agreement executed
and delivered by the Depositor and The Bank of New York, as guarantee trustee,
contemporaneously with the execution and delivery of this Declaration of Trust,
for the benefit of the holders of the Preferred Securities, as amended from time
to time.
"Holder" means a Person in whose name a Trust Security or
Trust Securities are registered in the Securities Register; any such Person
shall be a beneficial owner within the meaning of the Delaware Business Trust
Act.
"Indenture" means either the Junior Subordinated Indenture,
dated as of [ ], between the Depositor and the Debenture Trustee, as trustee, as
amended or supplemented from time to time, under which the Depositor's
Debentures are issued or the Junior Subordinated Indenture, dated as of [ ],
between the Subsidiary and the Debenture Trustee, as trustee, as amended or
supplemented from time to time, under which the Subsidiary's Debentures are
issued.
"Investment Company Act" means the Investment Company Act of
1940, or any successor statute thereto, in each case as amended from time to
time.
"Investment Company Act Event" means the receipt by the Issuer
Trust of an Opinion of Counsel experienced in such matters to the effect that,
as a result of the occurrence of a change in law or regulation or a written
change (including any announced prospective change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Issuer Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act, which change or
prospective change becomes effective or would become effective, as the case may
be, on or after the date of the issuance of the Preferred Securities.
7
<PAGE> 13
"Issuer Trust" means the Delaware business trust known as "CCC
Capital Trust I" which was created on December 6, 1999 under the Delaware
Business Trust Act pursuant to the Original Declaration of Trust and the filing
of the Certificate of Trust, and continued pursuant to this Declaration of
Trust.
"Issuer Trustees" has the meaning specified in the preamble to
this Declaration of Trust.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any
Trust Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Debentures to be contemporaneously redeemed in accordance
with the Indenture, the proceeds of which will be used to pay the Redemption
Price of such Trust Securities, (b) with respect to a distribution of Debentures
to Holders of Trust Securities in connection with a dissolution or liquidation
of the Issuer Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such Debentures
are distributed, and (c) with respect to any distribution of Additional Amounts
to Holders of Trust Securities, Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities in respect of which such
distribution is made.
"Liquidation Amount" means the stated amount of $__ per Trust
Security.
"Liquidation Date" means the date of dissolution of the Issuer
Trust pursuant to Sections 9.1 or 9.2.
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities"
or "Majority in Liquidation Amount of the Common Securities" means, except as
provided by the Trust Indenture Act, Preferred Securities or Common Securities,
as the case may be, representing more than 50% of the aggregate Liquidation
Amount of all then Outstanding Preferred Securities or Common Securities, as the
case may be.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the Chief Executive Officer, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
Issuer Trustees. Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Declaration of Trust shall
include:
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<PAGE> 14
(a) a statement by each officer signing the Officers'
Certificate that such officer has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in rendering
the Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Depositor or any Affiliate of the
Depositor.
"Original Declaration of Trust" has the meaning specified in
the recitals to this Declaration of Trust.
"Outstanding", when used with respect to Trust Securities,
means, as of the date of determination, all Trust Securities theretofore
executed and delivered under this Declaration of Trust, except:
(a) Trust Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent; provided that, if such Trust Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Declaration of Trust; and
(c) Trust Securities that have been paid or in exchange for or
in lieu of which other Trust Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.6 and 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Issuer Trustee, any
Administrator or any Affiliate of the Depositor, any Issuer Trustee or any
Administrator shall be disregarded and deemed not to be Outstanding, except that
(a) in determining whether any Issuer Trustee or any Administrator shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that a Responsible Officer
of such Issuer Trustee or such Administrator, as the case
9
<PAGE> 15
may be, actually knows to be so owned shall be so disregarded, and (b) the
foregoing shall not apply at any time when all of the Outstanding Preferred
Securities are owned by the Depositor, one or more of the Issuer Trustees, one
or more of the Administrators and/or any such Affiliate. Preferred Securities so
owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrators the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of
Book-Entry Preferred Securities as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee in its trust
department for the benefit of the Holders in which all amounts paid in respect
of the Debentures will be held and from which the Property Trustee, through the
Paying Agent, shall make payments to the Holders in accordance with Sections 4.1
and 4.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, company, limited liability company, trust, unincorporated association,
or government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Preferred Security" means an undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $__ and having
the rights provided therefor in this Declaration of Trust, including the right
to receive Distributions and a Liquidation Distribution to the extent provided
herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit E.
"Property Trustee" means the Person identified as the
"Property Trustee" in the preamble to this Declaration of Trust, solely in its
capacity as Property Trustee of the Issuer Trust and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this
Declaration of Trust; provided that each
10
<PAGE> 16
Debenture Redemption Date and the stated maturity of the Debentures shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security,
the Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer", when used with respect to the Property
Trustee or Issuer Trustee, means any officer assigned to the Corporate Trust
Office, including any vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration of
this Declaration of Trust, and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, and any
successor statute thereto, in each case as amended from time to time.
"Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.5.
"Subsidiary" means Citadel Broadcasting Company, a Nevada
corporation, all of the outstanding capital stock of which is owned by the
Depositor.
"Successor Preferred Securities" of any particular Preferred
Securities Certificate means every Preferred Securities Certificate issued
after, and evidencing all or a portion of the same beneficial interest in the
Issuer Trust as that evidenced by, such particular Preferred Securities
Certificate; and, for the purposes of this definition, any Preferred Securities
Certificate executed and delivered under Section 5.6 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Preferred Securities Certificate shall
be deemed to evidence the same beneficial interest in the Issuer Trust as the
mutilated, destroyed, lost or stolen Preferred Securities Certificate.
"Tax Event" means the receipt by the Issuer Trust of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of (a) any amendment to or change (including any announced prospective change)
in the laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, or (b) any judicial decision
or any official administrative pronouncement (including any private letter
ruling,
11
<PAGE> 17
technical advice memorandum or field service advice) or regulatory procedure (an
"Administrative Action"), regardless of whether such judicial decision or
Administrative Action is issued to or in connection with a proceeding involving
the Corporation or the Issuer Trust and whether or not subject to review or
appeal, which amendment, change, Administrative Action or decision is enacted,
promulgated or announced, in each case, on or after the date hereof, there is
more than an insubstantial risk that (i) the Issuer Trust is, or will be within
90 days of the date of such opinion, subject to United States federal income tax
with respect to income received or accrued on the Debentures, (ii) interest
payable by the Debenture Issuer or original issue discount accruing on the
Debentures is not, or within 90 days of the date of such opinion, will not be,
deductible by the Debenture Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Issuer Trust is, or will be within 90
days of the date of such opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that if the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on
deposit in, or owing to, the Payment Account, and (c) all proceeds and rights in
respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to the trusts of this
Declaration of Trust.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriting Agreement" means the Pricing Agreement, dated as
of [ ], 1999, among the Issuer Trust, the Depositor and the Underwriters named
therein, as the same may be amended from time to time and includes the
Underwriting Agreement incorporated therein by reference.
"Vice President," when used with respect to the Depositor,
means any duly appointed vice president, whether or not designated by a number
or a word or words added before or after the title "vice president."
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ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name. The trust continued hereby shall be known
as "CCC Capital Trust I", as such name may be modified from time to time by the
Administrators following written notice to the Holders of Trust Securities and
the Issuer Trustees, in which name the Administrators and the Trustees may
conduct the business of the Issuer Trust, make and execute contracts and other
instruments on behalf of the Issuer Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place
of Business. The address of the Delaware Trustee in the State of Delaware is The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711; Attention: Corporate Trust Administration, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to the
Holders, the Depositor, the Property Trustee and the Administrators. The
principal executive office of the Issuer Trust is ______________________,
Attention: _________.
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges receipt from the
Depositor in connection with the Original Declaration of Trust of the sum of
$10, which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Issuer Trust as they arise or shall, upon request
of any Issuer Trustee, promptly reimburse such Issuer Trustee for any such
expenses paid by such Issuer Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities. On [ ] the
Depositor, both on its own behalf and on behalf of the Issuer Trust pursuant to
the Original Declaration of Trust, executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of this Declaration
of Trust, an Administrator, on behalf of the Issuer Trust, shall manually or by
facsimile signature execute in accordance with Sections 5.3 and 8.9(a) and the
Property Trustee shall hold such Preferred Securities Certificates [as nominee
for Cede & Co.], registered in the names requested by the underwriters,
evidencing an aggregate of [ ] Preferred Securities having an aggregate
Liquidation Amount of $[ ], against receipt of the aggregate purchase price of
such Preferred Securities of $[ ] by the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debentures. Contemporaneously with the execution and delivery of
this Declaration of Trust, an Administrator, on behalf of the Issuer Trust,
shall execute in accordance with Sections 5.2 and 5.3 and the Property Trustee
shall deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, evidencing an aggregate of [ ] Common Securities having
an aggregate Liquidation Amount of $[ ], against receipt of the aggregate
purchase price of such Common Securities of $[ ], to the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the Issuer Trust,
shall subscribe for and purchase from the Depositor or Subsidiary Debentures,
registered in the name of the Property Trustee, not in its individual capacity
but solely as Property Trustee, on behalf of the Issuer Trust and having an
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aggregate principal amount equal to $[ ], and, in satisfaction of the purchase
price for such Debentures, the Property Trustee, on behalf of the Issuer Trust,
shall deliver to the Debenture Issuer the sum of $[ ] (being the sum of the
amounts delivered to the Property Trustee pursuant to (i) the second sentence of
Section 2.4, and (ii) the first sentence of this Section 2.5).
SECTION 2.6. Continuation of Trust. The exclusive purposes and
functions of the Issuer Trust are (a) to issue and sell Trust Securities and use
the proceeds from such sale to acquire the Debentures, and (b) to engage in only
those activities necessary, or incidental thereto. The Property Trustee hereby
declares that it will hold the Trust Property upon and subject to the conditions
set forth herein for the benefit of the Issuer Trust and the Holders. The
Administrators shall have only those ministerial duties set forth herein with
respect to accomplishing the purposes of the Issuer Trust and shall not be
trustees or, to the fullest extent permitted by law, fiduciaries with respect to
the Issuer Trust or the Holders. The Property Trustee shall have the right and
power to perform those duties assigned to the Administrators. The Delaware
Trustee shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Property Trustee or
the Administrators set forth herein. The Delaware Trustee shall be one of the
trustees of the Issuer Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act and for taking
such actions as are required to be taken by a Delaware trustee under the
Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrators shall conduct the affairs of the
Issuer Trust in accordance with the terms of this Declaration of Trust. Subject
to the limitations set forth in paragraph (b) of this Section, and in accordance
with the following provisions (i) and (ii), the Issuer Trustees and the
Administrators shall have the authority to enter into all transactions and
agreements determined by the Issuer Trustees or the Administrators to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Issuer Trustees or the Administrators, as the case may be, under this
Declaration of Trust, and to perform all acts in furtherance thereof, including
the following:
(i) Each Administrator shall have the power and authority to
act on behalf of the Issuer Trust with respect to the following
matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to enter into, and to
execute, deliver and perform on behalf of the Issuer Trust,
the Expense Agreement and the Certificate Depository Agreement
and such other agreements as may be necessary or desirable in
connection with the purposes and function of the Issuer Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act, and under applicable
state securities or blue sky laws and the
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qualification of this Declaration of Trust as a trust
indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor, with the registration of the
Preferred Securities under the Exchange Act, and with the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(E) assisting in the sending of notices (other than
notices of default) and other information regarding the Trust
Securities and the Debentures to the Holders in accordance
with this Declaration of Trust;
(F) the consent to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance
with this Declaration of Trust (which consent shall not be
unreasonably withheld);
(G) execution of the Trust Securities on behalf of
the Trust in accordance with this Declaration of Trust;
(H) execution and delivery of closing certificates,
if any, pursuant to the Underwriting Agreement and application
for a taxpayer identification number for the Issuer Trust;
(I) unless otherwise determined by the Property
Trustee or Holders of at least a Majority in Liquidation
Amount of the Preferred Securities or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to
execute on behalf of the Issuer Trust (either acting alone or
together with any or all of the Administrators) any documents
that the Administrators have the power to execute pursuant to
this Declaration of Trust; and
(J) the taking of any action incidental to the
foregoing as the Issuer Trustees may from time to time
determine is necessary or advisable to give effect to the
terms of this Declaration of Trust.
(ii) The Property Trustee shall have the power, duty and
authority to act on behalf of the Issuer Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
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(C) the collection of interest, principal and any
other payments made in respect of the Debentures and the
holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of
amounts distributable to the Holders in respect of the Trust
Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Holders in accordance with this Declaration of Trust;
(G) the distribution of the Trust Property in
accordance with the terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of
Trust, the winding up of the affairs of and liquidation of the
Issuer Trust and the preparation of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) the taking of any action incidental to the foregoing
as the Property Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this
Declaration of Trust and protect and conserve the Trust
Property for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder);
and
(J) any of the duties, liabilities, powers or the
authority of the Administrators set forth in Section
2.7(a)(i)(E), (F) and (J) herein; and in the event of a
conflict between the action of the Administrators and the
action of the Property Trustee, the action of the Property
Trustee shall prevail.
(b) So long as this Declaration of Trust remains in effect,
the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of
the Issuer Trust) shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby. In particular,
neither the Issuer Trustees nor the Administrators, acting on behalf of the
Issuer Trust, shall (i) acquire any investments or engage in any activities not
authorized by this Declaration of Trust, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as expressly provided herein,
(iii) take any action that would reasonably be expected to cause the Issuer
Trust to become taxable as a corporation or classified as other than a grantor
trust for United States
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federal income tax purposes, (iv) take or consent to any action that would cause
the Debentures to be treated as other than indebtedness of the Debenture Issuer
for United States federal income tax purposes, (v) incur any indebtedness for
borrowed money or issue any other debt, or (vi) take or consent to any action
that would result in the placement of a Lien on any of the Trust Property. The
Property Trustee shall, at the expense of the Issuer Trust or the Holders defend
all claims and demands of all Persons at any time claiming any Lien on any of
the Trust Property adverse to the interest of the Issuer Trust or the Holders in
their capacity as Holders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor and Administrators shall have the right and
responsibility to assist the Issuer Trust with respect to, or effect on behalf
of the Issuer Trust, the following (and any actions taken by the Depositor in
furtherance of the following prior to the date of this Declaration of Trust are
hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the
Preferred Securities, including any amendments thereto and the taking
of any action necessary or desirable to sell the Preferred Securities
in a transaction or a series of transactions pursuant thereto;
(ii) the determination of the States or other jurisdictions,
if any, in which to take appropriate action to qualify or register for
sale all or part of the Preferred Securities and the determination of
any and all such acts, other than actions that must be taken by or on
behalf of the Issuer Trust, and the advice to the Issuer Trust of
actions they must take on behalf of the Issuer Trust, and the
preparation for execution and filing of any documents to be executed
and filed by the Issuer Trust or on behalf of the Issuer Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States in connection with the sale of the
Preferred Securities;
(iii) the preparation for filing by the Issuer Trust and
execution on behalf of the Issuer Trust of any application to the New
York Stock Exchange or any other national stock exchange or the NASDAQ
National Market for listing upon notice of issuance of any Preferred
Securities;
(iv) the preparation for filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of any
registration statement on Form 8-A relating to Preferred Securities
under Section 12(b) or 12(g) of the Exchange Act, including any
amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
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(vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrators and the Issuer Trustees are authorized and directed to conduct
the affairs of the Issuer Trust and to operate the Issuer Trust so that the
Issuer Trust will not be deemed to be an "investment company" required to be
registered under the Investment Company Act, and will not be taxable as a
corporation or classified as other than a grantor trust for United States
federal income tax purposes and so that the Debentures will be treated as
indebtedness of the Debenture Issuer for United States federal income tax
purposes. In this connection, each Administrator, the Property Trustee and the
Holders of at least a Majority in Liquidation Amount of the Common Securities
are authorized to take any action, in the Opinion of Counsel not inconsistent
with applicable law, the Certificate of Trust or this Declaration of Trust, that
such Administrator, the Property Trustee or Holders of Common Securities
determine in their discretion to be necessary or desirable for such purposes, as
long as such action does not adversely affect in any material respect the
interests of the Holders of the Outstanding Preferred Securities. [In no event
shall the Administrator take any action pursuant to the preceding sentence or
any other provision herein that would constitute discretionary control over the
assets of the Trust for purposes of Section 3(21) of ERISA.] In no event shall
the Administrators or the Issuer Trustees be liable to the Issuer Trust or the
Holders for any failure to comply with this section that results from a change
in law or regulation or in the interpretation thereof.
SECTION 2.8. Assets of Trust. The assets of the Issuer Trust
shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee in trust for
the benefit of the Issuer Trust and the Holders in accordance with this
Declaration of Trust.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account. (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The Property
Trustee and its agents shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Declaration of
Trust. All monies and other property deposited or held from time to time in the
Payment Account shall be held by the Property Trustee in the Payment Account for
the exclusive benefit of the Holders and for distribution as herein provided,
including (and subject to) any priority of payments provided for herein.
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(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions. (a) The Trust Securities represent
undivided beneficial interests in the Trust Property, and Distributions
(including of Additional Amounts) will be made on the Trust Securities at the
rate and on the dates that payments of interest (including any Additional
Interest, as defined in the Indenture) are made on the Debentures.
Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and shall accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accumulate from [ ], 1999, and, except as provided in clause (ii)
below, shall be payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year, commencing on [ ], 2000. If
any date on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on the date
on which such payment was originally payable (each date on which
distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) In the event (and to the extent) of an Extension Period,
quarterly Distributions on the Preferred Securities shall continue to
accumulate but shall be deferred. Any Distributions that would
otherwise become due and payable during such deferral will not become
due and payable until the day after the period ends.
(iii) Distributions shall accumulate in respect of the
Preferred Securities at a rate of [ ]% per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions payable for
any period less than a full Distribution period shall be computed on
the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in a partial month in a period. Distributions
payable for each full Distribution period will be computed by dividing
the rate per annum by four. The amount of Distributions payable for any
period shall include any Additional Amounts in respect of such period.
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(iv) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Issuer Trust has
funds then on hand and available in the Payment Account for the payment
of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be at the close of business on the fifteenth
day (whether or not a Business Day) next preceding the relevant Distribution
Date.
SECTION 4.2. Redemption. (a) On each Debenture Redemption Date
and on the stated maturity of the Debentures, the Issuer Trust will be required
to redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register.
Notwithstanding the aforementioned sentence, if the redemption results from the
acceleration of the maturity of the Debentures and the Property Trustee cannot
reasonably give such notice of redemption within the prescribed period, then the
notice will be given as soon as practicable. All notices of redemption shall
state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to (and as defined
in) the Indenture together with a statement that it is an estimate and
that the actual Redemption Price will be calculated on the third
Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption Price
on the date that such Redemption Price is calculated);
(iii) the CUSIP number or CUSP numbers of the Preferred
Securities affected;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the aggregate Liquidation Amount of
the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accumulate on and after said
date, except as provided in Section 4.2(d) below; and
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(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use
"CUSP" numbers (if then generally in use), and, if so, the Property Trustee
shall indicate the "CUSP" numbers of the Trust Securities in notices of
redemption and related materials as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Trust Securities or as contained in any
notice of redemption and related materials.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be payable on each Redemption Date
only to the extent that the Issuer Trust has funds then on hand and available in
the Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Book-Entry Preferred Securities, irrevocably deposit with the
Clearing Agency for such Book-Entry Preferred Securities, to the extent
available therefor, funds sufficient to pay the applicable Redemption Price and
will give such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities. With respect to
Preferred Securities that are not Book-Entry Preferred Securities, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent or Paying Agents, to the extent available therefor, funds sufficient to
pay the applicable Redemption Price and will give the Paying Agent or Paying
Agents irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Securities
Register on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest, and such
Securities will cease to be Outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Issuer
Trust or by the Depositor pursuant to the Guarantee
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Agreement, Distributions on such Trust Securities will continue to accumulate,
as set forth in Section 4.1, from the Redemption Date originally established by
the Issuer Trust for such Trust Securities to the date such Redemption Price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Subject to Section 4.3(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated pro rata to the Common Securities and the Preferred Securities based
upon the relative Liquidation Amounts. The particular Preferred Securities to be
redeemed shall be selected by the Property Trustee based upon any method of
selection that it deems to be fair and appropriate (which may be by lot),
including any method that involves the redemption of a portion of the aggregate
Liquidation Amount of any particular holder's Preferred Securities not more than
60 days prior to the Redemption Date from the Outstanding Preferred Securities
not previously called for redemption, provided that so long as the Preferred
Securities are in book-entry-only form, such selection shall be made in
accordance with the customary procedures for the Clearing Agency for the
Preferred Securities. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Declaration
of Trust, unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
aggregate Liquidation Amount of Preferred Securities that has been or is to be
redeemed.
SECTION 4.3. Subordination of Common Securities. (a) Payment
of Distributions (including any Additional Amounts) on, the Redemption Price of,
and the Liquidation Distribution in respect of the Trust Securities, as
applicable, shall be made, subject to Section 4.2(e), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date,
Redemption Date or Liquidation Date any Event of Default shall have occurred and
be continuing, no payment of any Distribution (including any Additional Amounts)
on, Redemption Price of, or Liquidation Distribution in respect of any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including any Additional
Amounts) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount in cash of such Redemption Price on all Outstanding
Preferred Securities then called for redemption, or in the case of payment of
the Liquidation Distribution the full amount of such Liquidation Distribution on
all Outstanding Preferred Securities, shall have been made or provided for, and
all funds immediately available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions (including any Additional
Amounts) on, or the Redemption Price of, the Preferred Securities then due and
payable.
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(b) In the case of the occurrence of any Event of Default, the
Holders of the Common Securities shall have no right to act with respect to any
such Event of Default under this Declaration of Trust until the effect of all
such Events of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated. Until all such Events of Default under this
Declaration of Trust with respect to the Preferred Securities have been so
cured, waived or otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Preferred Securities and not on behalf of the
Holders of the Common Securities, and only the Holder of all the Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf. Notwithstanding the foregoing, the Holders of Common Securities may act
with respect to an Event of Default that results solely from a default in the
payment of any amount due and payable on the Common Securities, or from a
default or breach under any covenant herein made solely for the benefit of the
Holders of Common Securities (a "Common Securities Default"), subject to the
following conditions. The action of the Holders of the Common Securities must
not adversely affect the interests of the Holders of Preferred Securities and no
Event of Default (and no event or condition that after the passage of time or
giving of notice would result in an Event of Default) that is not a Common
Securities Default may have occurred and be continuing.
The Issuer Trust will not make any payment or other
distribution in respect of the Common Securities (including on account of any
purchase or other acquisition) while the Preferred Securities are outstanding,
other than Distributions, the Redemption Price and the Liquidation Distribution
on the terms set forth herein.
SECTION 4.4. Payment Procedures. Payments of Distributions
(including any Additional Amounts) or of the Redemption Price, Liquidation
Amount or any other amounts in respect of the Preferred Securities shall be made
at the option of the Issuer Trust, either at the offices of any Paying Agent or
by check mailed to the address of the Person entitled thereto as such address
shall appear on the Securities Register or, if the Preferred Securities are held
by a Clearing Agency, such Distributions shall be made to the Clearing Agency in
immediately available funds. Payments in respect of the Common Securities shall
be made in such manner as shall be mutually agreed between the Property Trustee
and the Holder of all the Common Securities.
SECTION 4.5. Withholding Tax. The Issuer Trust and the
Administrators shall comply with all withholding and backup withholding tax
requirements under United States federal, state and local law. The Issuer Trust
shall request, and the Holders shall provide to the Issuer Trust, such forms or
certificates as are necessary to establish an exemption from withholding and
backup withholding tax with respect to each Holder, and any representations and
forms as shall reasonably be requested by the Issuer Trust to assist it in
determining the extent of, and in fulfilling, its withholding and backup
withholding tax obligations. The Administrators shall file required forms with
applicable jurisdictions and, unless an exemption from withholding and backup
withholding tax is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the
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Issuer Trust is required to withhold and pay over any amounts to any authority
with respect to Distributions or allocations to any Holder, the amount withheld
shall be deemed to be a Distribution in the amount of the withholding to the
Holder. In the event of any claimed overwithholding, Holders shall be limited to
an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Issuer Trust may
reduce subsequent Distributions by the amount of such required withholding.
SECTION 4.6. Tax Returns and Reports. The Administrators shall
prepare (or cause to be prepared), at the Depositor's expense, and file all
United States federal, state and local tax and information returns and reports
required to be filed by or in respect of the Issuer Trust. In this regard, the
Administrators shall (a) prepare and file (or cause to be prepared and filed)
all Internal Revenue Service forms and returns required to be filed in respect
of the Issuer Trust in each taxable year of the Issuer Trust, and (b) prepare
and furnish (or cause to be prepared and furnished) to each Holder all Internal
Revenue Service forms and returns required to be provided by the Issuer Trust.
The Administrators shall provide the Depositor and the Property Trustee with a
copy of all such returns and reports promptly after such filing or furnishing.
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Issuer
Trust. Upon receipt under the Debentures of Additional Sums, the Property
Trustee shall promptly pay at the written direction of an Administrator or
Depositor any Additional Taxes imposed on the Issuer Trust by the United States
or any other taxing authority.
SECTION 4.8. Payments Under Indenture or Pursuant to Direct
Actions. Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received pursuant to Section 5.8 of the Indenture or Section 5.13 of
this Declaration of Trust.
SECTION 4.9. Liability of the Holder of Common Securities. Any
Holder of the Common Securities shall be liable for the debts and obligations of
the Issuer Trust in the manner and to the extent set forth with respect to the
Corporation (as defined in the Expense Agreement) and agrees that it shall be
subject to all liabilities to which the Corporation may be subject, and shall
make all payments that the Corporation is required to make, under the terms of
the Expense Agreement.
SECTION 4.10. Other Purchases of Preferred Securities. Subject
to applicable law (including United States federal securities laws), the Issuer
Trust may purchase Outstanding Preferred Securities by tender, in the open
market or by private agreement. These purchases may occur at any time and from
time to time other than during an Extension Period.
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ARTICLE V.
SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the creation of the
Issuer Trust and the contribution by the Depositor referred to in Section 2.3
and until the issuance of the Trust Securities, and at any time during which no
Trust Securities are Outstanding, the Depositor shall be the sole beneficial
owner of the Issuer Trust.
SECTION 5.2. The Securities Certificates. (a) The Preferred
Securities Certificates shall be issued in minimum denominations of $__
Liquidation Amount and integral multiples of $__ in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $__
Liquidation Amount and integral multiples thereof. The Securities Certificates
shall be executed on behalf of the Issuer Trust by manual signature of at least
one Administrator. Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Issuer Trust, shall be validly issued and
entitled to the benefits of this Declaration of Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Securities Certificates or did not hold such offices at the
date of delivery of such Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.5.
(b) Upon their original issuance, Preferred Securities
Certificates shall be issued in the form of one or more Global Preferred
Securities registered in the name of DTC, as Clearing Agency, or its nominee and
deposited with DTC or a custodian for DTC for credit by DTC to the respective
accounts of the Owners thereof (or such other accounts as they may direct),
provided that upon deposit all European Trust Securities shall be credited to or
through accounts maintained at DTC by or on behalf of Euroclear or Cedel.
(c) Upon their original issuance, Preferred Securities
Certificates may be issued in whole or in part in the form of one or more
Definitive Preferred Securities Certificates registered in the name of holders
as designated by the underwriters in a particular offering.
(d) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
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SECTION 5.3. Execution and Delivery of Securities
Certificates. At the Time of Delivery, the Administrators shall cause Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and
2.5, to be executed on behalf of the Issuer Trust and delivered to or upon the
written order of the Depositor, executed by an authorized officer thereof,
without further corporate action by the Depositor, in authorized denominations.
SECTION 5.4. Book-Entry Preferred Securities. (a) Each Global
Preferred Security issued under this Agreement shall be registered in the name
of the Clearing Agency or a nominee thereof and delivered to such Clearing
Agency or a nominee thereof or custodian therefor, and each such Global
Preferred Security shall constitute a single Preferred Securities Certificate
for all purposes of this Agreement.
(b) Notwithstanding any other provision in this Declaration of
Trust, no Global Preferred Security may be exchanged in whole or in part for
Preferred Securities Certificates registered, and no transfer of a Global
Preferred Security in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Global Preferred Security or a
nominee thereof unless (i) the Clearing Agency advises the Property Trustee in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Global Preferred Security,
and the Property Trustee is unable to locate a qualified successor, (ii) the
Issuer Trust at its option advises the Depositary in writing that it elects to
terminate the book-entry system through the Clearing Agency, or (iii) an Event
of Default has occurred and is continuing and a holder of Preferred Securities
notifies the Property Trustee in writing that it wishes to receive a Definitive
Preferred Securities Certificate. Upon the occurrence of any event specified in
clause (i), (ii) or (iii) above, the Administrators shall notify the Clearing
Agency and instruct the Clearing Agency to notify all Owners of Book-Entry
Preferred Securities, the Delaware Trustee and the Administrators of the
occurrence of such event and of the availability of the Definitive Preferred
Securities Certificates to Owners of the Preferred Securities requesting the
same.
(c) If any Global Preferred Security is to be exchanged for
other Preferred Securities Certificates or canceled in part, or if any other
Preferred Securities Certificate is to be exchanged in whole or in part for
Book-Entry Preferred Securities represented by a Global Preferred Security, then
either (i) such Global Preferred Security shall be so surrendered for exchange
or cancellation as provided in this Article V or (ii) the aggregate Liquidation
Amount represented by such Global Preferred Security shall be reduced, subject
to Section 5.2, or increased by an amount equal to the Liquidation Amount
represented by that portion of the Global Preferred Security to be so exchanged
or canceled, or equal to the Liquidation Amount represented by such other
Preferred Securities Certificates to be so exchanged for Book-Entry Preferred
Securities represented thereby, as the case may be, by means of an appropriate
adjustment made on the records of the Securities Registrar, whereupon the
Property Trustee, in accordance with the Applicable Procedures, shall instruct
the Clearing Agency or its authorized representative to make a corresponding
adjustment to its records. Upon surrender to the Administrators or the
Securities Registrar of the Global Preferred Security or Securities by the
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Clearing Agency, accompanied by registration instructions, the Administrators,
or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. None of
the Securities Registrar, the Issuer Trustees or the Administrators shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Issuer Trustees
and Administrators shall recognize the Holders of the Definitive Preferred
Securities Certificates as Holders. The Definitive Preferred Securities
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Administrators, as evidenced
by the execution thereof by the Administrators or any one of them.
(d) Every Preferred Securities Certificate executed and
delivered upon registration or transfer of, or in exchange for or in lieu of, a
Global Preferred Security or any portion thereof, whether pursuant to this
Article V or Article IV or otherwise, shall be executed and delivered in the
form of, and shall be, a Global Preferred Security, unless such Preferred
Securities Certificate is registered in the name of a Person other than the
Clearing Agency for such Global Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of
a Global Preferred Security, shall be the Holder of such Global Preferred
Security for all purposes under this Agreement and the Global Preferred
Security, and Owners with respect to a Global Preferred Security shall hold such
interests pursuant to the Applicable Procedures. The Securities Registrar and
the Property Trustee shall be entitled to deal with the Clearing Agency for all
purposes of this Declaration of Trust relating to the Global Preferred
Securities (including the payment of the Liquidation Amount of and Distributions
on the Book-Entry Preferred Securities represented thereby and the giving of
instructions or directions by Owners of Book-Entry Preferred Securities
represented thereby) as the sole Holder of the Book-Entry Preferred Securities
represented thereby and shall have no obligations to the Owners thereof. None of
the Property Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Clearing Agency.
The rights of the Owners of the Book-Entry Capital Securities
shall be exercised only through the Clearing Agency and shall be limited to
those established by law, the Applicable Procedures and agreements between such
Owners and the Clearing Agency and/or the Clearing Agency Participants, provided
that, solely for the purpose of determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Declaration of Trust, so long as Definitive Preferred Security Certificates have
not been issued, the Issuer Trustees may conclusively rely on, and shall be
fully protected in relying on, any written instrument (including a proxy)
delivered to the Property Trustee by the Clearing Agency setting forth the
Owners' votes or assigning the right to vote on any matter to any other Persons
either in whole or in part. Pursuant to the Certificate Depository Agreement,
unless and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.4(b), the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and
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receive and transmit payments on the Preferred Securities to such Clearing
Agency Participants, and none of the Depositor, the Administrators or the Issuer
Trustees shall have any responsibility or obligation with respect thereto.
SECTION 5.5. Registration of Transfer and Exchange of
Preferred Securities Certificates. (a) The Property Trustee shall keep or cause
to be kept, at its Corporate Trust Office, a register or registers (the
"Securities Register") in which the registrar and transfer agent with respect to
the Trust Securities (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to Section
5.11 in the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein provided.
The Property Trustee is hereby appointed Securities Registrar for the purpose of
registering Preferred Securities Certificates and (subject to Section 5.11)
Common Securities Certificates and transfers and exchanges thereof as provided
herein.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.9, the Administrators or any one of them shall execute and deliver to the
Property Trustee, and the Property Trustee shall deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
as may be required by this Declaration of Trust dated the date of execution by
such Administrator.
The Securities Registrar shall not be required, (i) to issue,
register the transfer of or exchange any Preferred Security during a period
beginning at the opening of business 15 days before the day of selection for
redemption of such Preferred Securities pursuant to Article IV and ending at the
close of business on the day of mailing of the notice of redemption, or (ii) to
register the transfer of or exchange any Preferred Security so selected for
redemption in whole or in part, except, in the case of any such Preferred
Security to be redeemed in part, any portion thereof not to be redeemed.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Securities Registrar duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Property Trustee in accordance with such Person's customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Issuer Trust
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
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(b) Notwithstanding any other provision of this Agreement,
transfers and exchanges of Preferred Securities Certificates and beneficial
interests in a Global Preferred Security of the kinds specified in this Section
5.5(b) shall be made only in accordance with this Section 5.5(b).
(i) Non-Global Preferred Security to Global Preferred
Security. If the Holder of a Preferred Securities Certificate (other
than a Global Preferred Security) wishes at any time to transfer all or
any portion of such Preferred Securities Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
a Global Preferred Security, such transfer may be effected only in
accordance with the provisions of this clause (b)(i) and subject to the
Applicable Procedures. Upon receipt by the Securities Registrar of (A)
such Preferred Securities Certificate as provided in Section 5.5(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Global Preferred Security of a specified
number of Preferred Securities not greater than the number of Preferred
Securities represented by such Preferred Securities Certificate be
credited to a specified Clearing Agency Participant's account, then the
Securities Registrar shall cancel such Preferred Securities Certificate
(and issue a new Preferred Securities Certificate in respect of any
untransferred portion thereof) as provided in Section 5.5(a) and
increase the aggregate Liquidation Amount of the Global Preferred
Security by the Liquidation Amount represented by such Preferred
Securities so transferred as provided in Section 5.4(c).
(ii) Non-Global Preferred Security to Non-Global Preferred
Security. A Preferred Securities Certificate that is not a Global
Preferred Security may be transferred, in whole or in part, to a Person
who takes delivery in the form of another Preferred Securities
Certificate that is not a Global Preferred Security as provided in
Section 5.5(a).
(iii) Exchanges between Global Preferred Security and
Non-Global Preferred Security. A beneficial interest in a Global
Preferred Security may be exchanged for a Preferred Securities
Certificate that is not a Global Preferred Security as provided in
Section 5.4 .
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Securities
Certificates. If (a) any mutilated Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Securities
Certificate, and (b) there shall be delivered to the Securities Registrar and
the Administrators such security or indemnity as may be required by them to save
each of them harmless, then in the absence of notice that such Securities
Certificate shall have been acquired by a bona fide purchaser, the
Administrators, or any one of them, on behalf of the Issuer Trust shall execute
and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Securities Certificate, a new Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Securities Certificate under this Section 5.6, the
Administrators or the Securities Registrar may require the payment of a sum
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sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Securities Certificate issued pursuant to
this Section 5.6 shall constitute conclusive evidence of an undivided beneficial
interest in the assets of the Issuer Trust corresponding to that evidenced by
the lost, stolen or destroyed Securities Certificate, as if originally issued,
whether or not the lost, stolen or destroyed Securities Certificate shall be
found at any time.
SECTION 5.7. Persons Deemed Holders. The Issuer Trustees, the
Administrators and the Securities Registrar shall each treat the Person in whose
name any Securities Certificate shall be registered in the Securities Register
as the owner of such Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and none of the Issuer
Trustees, the Administrators and the Securities Registrar shall be bound by any
notice to the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, the Delaware Trustee or the Administrators
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.9. Maintenance of Office or Agency. The Property
Trustee shall designate, with the consent of the Administrators, which consent
shall not be unreasonably withheld, an office or offices or agency or agencies
where Preferred Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Issuer
Trustees in respect of the Trust Securities Certificates may be served. The
Property Trustee initially designates the Corporate Trust Office, Attention:
Corporate Trust Administration, as its office and agency for such purposes. The
Property Trustee shall give prompt written notice to the Depositor, the
Administrators and to the Holders of any change in the location of the
Securities Register or any such office or agency.
SECTION 5.10. Appointment of Paying Agents. The Paying Agent
or Paying Agents shall make Distributions to Holders from the Payment Account
and shall report the amounts of such Distributions to the Property Trustee and
the Administrators. Any Paying Agent shall have the revocable power to withdraw
funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Property Trustee may revoke such power and
remove the Paying Agent in its sole discretion. The Paying Agent shall initially
be the Property Trustee. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Administrators and
the Property Trustee. If the Property Trustee shall no longer be the Paying
Agent or a successor Paying Agent shall resign or its authority to act be
revoked, the Property Trustee shall appoint a successor (which shall be a bank
or trust company) that is reasonably acceptable to the Administrators to act as
Paying Agent. Such successor Paying Agent or any additional Paying Agent shall
execute and deliver to the Issuer Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Issuer Trustees
that as Paying Agent, such successor Paying Agent or
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additional Paying Agent will hold all sums, if any, held by it for payment to
the Holders in trust for the benefit of the Holders entitled thereto until such
sums shall be paid to such Holders. The Paying Agent shall return all funds
remaining unclaimed for two years to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall
apply to the Property Trustee also in its role as Paying Agent, for so long as
the Property Trustee shall act as Paying Agent and, to the extent applicable, to
any other paying agent appointed hereunder. Any reference in this Agreement to
the Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor. At
the Time of Delivery, the Depositor shall acquire, and thereafter shall retain,
beneficial and record ownership of the Common Securities. Neither the Depositor
nor any successor Holder of the Common Securities may transfer less than all the
Common Securities, and the Depositor or any such successor Holder may transfer
the Common Securities only (i) in connection with a consolidation or merger of
the Depositor into another corporation, or any conveyance, transfer or lease by
the Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, or (ii) to the Depositor or an
Affiliate of the Depositor in compliance with applicable law (including the
Securities Act, and applicable state securities and blue sky laws), and in
either case only upon an effective assignment and delegation by the Holder of
all the Common Securities to its transferee of all of its rights and obligations
under the Expense Agreement. To the fullest extent permitted by law, any
attempted transfer of the Common Securities other than as set forth in the
immediately preceding sentence shall be void. The Administrators shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE
WITH APPLICABLE LAW AND SECTION 5.11 OF THE DECLARATION OF TRUST AND ONLY IN
CONNECTION WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT OF THE EXPENSE
AGREEMENT REFERRED TO THEREIN."
SECTION 5.12. Notices to Clearing Agency. To the extent that a
notice or other communication to the Holders is required under this Declaration
of Trust, for so long as Preferred Securities are represented by a Global
Preferred Security, the Administrators and the Issuer Trustee shall give all
such notices and communications specified herein to be given to the Clearing
Agency, and shall have no obligations to the Owners.
SECTION 5.13 Rights of Holders; Waivers of Past Defaults. (a)
The legal title to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section 2.9, and the
Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Issuer Trust conferred by their Trust
Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Issuer Trust except as described below. The
Holders shall not have any preemptive or other similar rights. The Trust
Securities shall be personal property giving only the rights
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specifically set forth therein and in this Declaration of Trust. The Trust
Securities shall have no preemptive or similar rights and when issued and
delivered to Holders against payment of the purchase price therefor will be
fully paid and nonassessable by the Issuer Trust. Subject to the provisions of
Section 4.8, the Holders of the Trust Securities, in their capacities as such,
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee fails
or the holders of not less than 25% in principal amount of the outstanding
Debentures fail to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 25% in Liquidation Amount
of the Preferred Securities then Outstanding shall have the right to make such
declaration by a notice in writing to the Property Trustee, the Debenture Issuer
and the Debenture Trustee.
At any time after a declaration of acceleration with respect
to the Debentures has been made and before a judgment or decree for payment of
the money due has been obtained by the Debenture Trustee as provided in the
Indenture, if the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, by written notice to the Property Trustee, the Debenture
Issuer and the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the rescission would not conflict with any judgement or
decree of a court of competent jurisdiction and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures that has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of
the Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default under the Indenture,
except a default or Event of Default in the payment of principal or interest
(and any Additional Sum) (unless such default or Event of Default has been cured
and a sum sufficient to pay all matured installments of interest and principal
(and any Additional Sum) due otherwise than by acceleration has been deposited
with the Debenture Trustee) or a default or Event of Default in respect of a
covenant or provision that under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding Debenture. No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof, by Holders
of any part of the Preferred Securities a record date shall be established for
determining Holders of Outstanding Preferred
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Securities entitled to join in such notice, which record date shall be at the
close of business on the day the Property Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that, unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day that is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Declaration of Trust and the Indenture, upon a Debenture Event of Default
specified in Section 5.1(1) or 5.1(2) of the Indenture, any Holder of Preferred
Securities shall have the right to institute a proceeding directly against the
Debenture Issuer, pursuant to Section 5.8 of the Indenture, for enforcement of
payment to such Holder of any amounts payable in respect of Debentures having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such Holder (a "Direct Action"). Except as set forth in
Section 5.13(b) and this Section 5.13(c), the Holders of Preferred Securities
shall have no right to exercise directly any right or remedy available to the
holders of, or in respect of, the Debentures.
(d) Except as otherwise provided in paragraphs (a), (b) and
(c) of this Section 5.13, the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities may, on behalf of the Holders of all the
Preferred Securities, waive any past default or Event of Default and its
consequences. Upon such waiver, any such default or Event of Default shall cease
to exist, and any default or Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Declaration of Trust, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights. (a) Except as
expressly provided in this Declaration of Trust and in the Indenture and as
otherwise required by law, no Holder of Preferred Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of the Issuer Trust or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Securities
Certificates,
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be construed so as to constitute the Holders from time to time as partners or
members of an association.
(b) So long as any Debentures are held by the Property Trustee
on behalf of the Issuer Trust, the Property Trustee shall not (i) direct the
time, method and place of conducting any proceeding for any remedy available to
the Debenture Trustee, or execute any trust or power conferred on the Property
Trustee with respect to the Debentures, (ii) waive any past default that may be
waived under Section 5.13 of the Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due and
payable, or (iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities, provided, however, that where a
consent under the Indenture would require the consent of each Holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Preferred
Securities. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities,
except by a subsequent vote of the Holders of the Preferred Securities. The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default actually received by a Responsible Officer with respect to the
Debentures. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Issuer Trustees shall, at the expense of the Depositor, be provided with an
Opinion of Counsel experienced in such matters to the effect that such action
shall not cause the Issuer Trust to be taxable as a corporation, or classified
as other than a grantor trust, or cause the Debentures to be treated as other
than indebtedness of the Issuer Trust, for United States federal income tax
purposes.
(c) If any proposed amendment to the Declaration of Trust
provides for, or the Issuer Trustees otherwise propose to effect, (i) any action
that would adversely affect in any material respect the powers, preferences or
special rights of the Preferred Securities, whether by way of amendment to the
Declaration of Trust or otherwise, or (ii) the dissolution, winding-up or
termination of the Issuer Trust, other than pursuant to the terms of this
Declaration of Trust, then the Holders of Outstanding Preferred Securities as a
class will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of each Holder of
the Preferred Securities. Notwithstanding any other provision of this
Declaration of Trust, no amendment to this Declaration of Trust may be made if,
as a result of such amendment, it would cause the Issuer Trust to be taxable as
a corporation or classified as other than a grantor trust, or cause the
Debentures to be treated other than indebtedness of the Debenture Issuer, for
United States federal income tax purposes.
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SECTION 6.2. Notice of Meetings. Notice of all meetings of the
Holders of the Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Property Trustee pursuant to Section 10.9 to each
Holder of Preferred Securities, at such Holder's registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
SECTION 6.3. Meetings of Holders of the Preferred Securities.
No annual meeting of Holders is required to be held. The Property Trustee,
however, shall call a meeting of the Holders of the Preferred Securities to vote
on any matter upon the written request of the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities and the
Administrators or the Property Trustee may, at any time in their discretion,
call a meeting of the Holders of the Preferred Securities to vote on any matters
as to which such Holders are entitled to vote.
The Holders of a Majority in Liquidation Amount of the
Preferred Securities, present in person or by proxy, shall constitute a quorum
at any meeting of the Holders of the Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by
the Holders present, in person or by proxy, holding Preferred Securities
representing at least a majority of the aggregate Liquidation Amount of the
Preferred Securities held by the Holders present, either in person or by proxy,
at such meeting shall constitute the action of the Holders of the Preferred
Securities, unless this Declaration of Trust requires a greater number of
affirmative votes.
SECTION 6.4. Voting Rights. Holders shall be entitled to one
vote for each [$25] of Liquidation Amount represented by their Outstanding Trust
Securities in respect of any matter as to which such Holders are entitled to
vote.
SECTION 6.5. Proxies, Etc. At any meeting of Holders, any
Holder entitled to vote thereat may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Property Trustee, or with such other officer or agent of the Issuer Trust as the
Property Trustee may direct, for verification prior to the time at which such
vote shall be taken. Pursuant to a resolution of the Property Trustee, proxies
may be solicited in the name of the Property Trustee or one or more officers of
the Property Trustee. Only Holders of record shall be entitled to vote. When
Trust Securities are held jointly by several persons, any one of them may vote
at any meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Holder shall be deemed
valid unless challenged at or prior to its exercise, and the burden of
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proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.6. Holder Action by Written Consent. Any action that
may be taken by Holders at a meeting may be taken without a meeting and without
prior notice if Holders holding at least a Majority in Liquidation Amount of all
Preferred Securities entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any other provision of this
Declaration of Trust) shall consent to the action in writing. Any action that
may be taken by the Holders of all the Common Securities may be taken if such
Holders shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes. For
the purposes of determining the Holders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Declaration of Trust, or for the purpose of any other
action, the Administrators or Property Trustee may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Holders or the payment
of a distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8. Acts of Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration of Trust to be given, made or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to the Property
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Declaration of Trust and (subject to Section 8.1) conclusive in
favor of the Issuer Trustees and the Administrators, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer's
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such signer's authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner that any Issuer Trustee or
Administrator receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the
Securities Register.
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Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Trust Security shall bind
every future Holder of the same Trust Security and the Holder of every Trust
Security issued upon the registration or transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Issuer Trustees, the Administrators or the Issuer Trust in
reliance thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders, the
Administrators or the Issuer Trustees with respect to the authenticity, validity
or binding nature of any request, demand, authorization, direction, consent,
waiver or other Act of such Holder or Issuer Trustee under this Article VI, then
the determination of such matter by the Property Trustee shall be conclusive
with respect to such matter.
SECTION 6.9. Inspection of Records. Upon reasonable prior
written notice to the Administrators and the Property Trustee, the records of
the Issuer Trust shall be open to inspection by any Holder during normal
business hours for any purpose reasonably related to such Holder's interest as a
Holder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee. The Property Trustee and the Delaware Trustee,
each severally on behalf of and as to itself, hereby represents and warrants for
the benefit of the Depositor and the Holders that:
(a) the Property Trustee is a New York banking corporation,
duly organized, validly existing and in good standing under the laws of
the State of New York;
(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Declaration of Trust and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Declaration of Trust;
(c) the Delaware Trustee is a Delaware banking corporation;
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(d) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Declaration of Trust and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Declaration of Trust;
(e) this Declaration of Trust has been duly authorized,
executed and delivered by the Property Trustee and the Delaware Trustee
and constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(f) the execution, delivery and performance of this
Declaration of Trust has been duly authorized by all necessary
corporate or other action on the part of the Property Trustee and the
Delaware Trustee and does not require any approval of stockholders of
the Property Trustee and the Delaware Trustee and such execution,
delivery and performance will not (i) violate the Charter or By-laws of
the Property Trustee or the Delaware Trustee, (ii) to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge without
any independent investigation, violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in
the creation or imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any indenture,
mortgage, credit agreement, license or other agreement or instrument to
which the Property Trustee or the Delaware Trustee is a party or by
which it is bound, or (iii) violate any applicable law, governmental
rule or regulation of the United States or the State of Delaware, as
the case may be, governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or
any order, judgment or decree applicable to the Property Trustee or the
Delaware Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Declaration of Trust
nor the consummation of any of the transactions by the Property Trustee
or the Delaware Trustee (as appropriate in context) contemplated herein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing law of the United
States or the State of Delaware governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee, as the case may
be; and
(h) there are no proceedings pending or, to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge without
any independent investigation, threatened against or affecting the
Property Trustee or the Delaware Trustee in any court or before any
governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect
the Issuer Trust or
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would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform
its obligations as one of the Trustees under this Declaration of Trust.
SECTION 7.2. Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the Holders that:
(a) the Securities Certificates issued at the Time of Delivery
on behalf of the Issuer Trust have been duly authorized and will have
been duly and validly executed, issued and delivered by the Issuer
Trustees pursuant to the terms and provisions of, and in accordance
with the requirements of, this Declaration of Trust and the Holders
will be, as of each such date, entitled to the benefits of this
Declaration of Trust; and
(b) there are no taxes, fees or other governmental charges
payable by the Issuer Trust (or the Issuer Trustees on behalf of the
Issuer Trust) under the laws of the State of Delaware or any political
subdivision thereof in connection with the execution, delivery and
performance by either Issuer Trustee of this Declaration of Trust.
ARTICLE VIII.
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities. (a) The
duties and responsibilities of the Issuer Trustees and the Administrators shall
be as provided by this Declaration of Trust and, in the case of the Property
Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, but subject
to Section 8.1(c), no provision of this Declaration of Trust shall require any
of the Issuer Trustees or Administrators to expend or risk its or their own
funds or otherwise incur any financial liability in the performance of any of
its or their duties hereunder, or in the exercise of any of its or their rights
or powers. Whether or not therein expressly so provided, every provision of this
Declaration of Trust relating to the conduct or affecting the liability of or
affording protection to the Issuer Trustees or the Administrators shall be
subject to the provisions of this Section 8.1. Nothing in this Declaration of
Trust shall be construed to release an Administrator from liability for his or
her own negligent action, its own negligent failure to act, or his or her own
wilful misconduct. To the extent that, at law or in equity, an Issuer Trustee or
Administrator has duties and liabilities relating to the Issuer Trust or to the
Holders, such Issuer Trustee or Administrator shall not be liable to the Issuer
Trust or to any Holder for such Issuer Trustee's or Administrator's good faith
reliance on the provisions of this Declaration of Trust. The provisions of this
Declaration of Trust, to the extent that they restrict the duties and
liabilities of the Issuer Trustees and Administrators otherwise existing at law
or in equity, are agreed by the Depositor and the Holders to replace such other
duties and liabilities of the Issuer Trustees and Administrators.
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(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Holder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that neither the Issuer
Trustees nor the Administrators are personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.1(b) does not limit the liability
of the Issuer Trustees expressly set forth elsewhere in this Declaration of
Trust or, in the case of the Property Trustee, in the Trust Indenture Act.
(c) If an Event of Default has occurred and is continuing, the
Property Trustee shall enforce this Declaration of Trust for the benefit of the
Holders.
(d) The Property Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration of Trust (including pursuant to Section 10.11), and no implied
covenants shall be read into this Declaration of Trust against the Property
Trustee. If an Event of Default has occurred (that has not been cured or waived
pursuant to Section 5.13), the Property Trustee shall exercise such of the
rights and powers vested in it by this Declaration of Trust and use the same
degree of care and skill in its exercise thereof as a prudent person would
exercise or use in the conduct of his or her own affairs.
(e) No provision of this Declaration of Trust shall be
construed to relieve the Property Trustee or the Delaware Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
wilful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Declaration of Trust (including pursuant to Section
10.11), and the Property Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Declaration of Trust (including
pursuant to Section 10.11); and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Declaration of Trust; but in the case of
any such certificates or opinions that by any provision hereof
or of the Trust Indenture Act are specifically required to be
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furnished to the Property Trustee, the Property Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Declaration of
Trust (but need not confirm or investigate the accuracy of any
mathematical calculations or other facts stated therein).
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration of Trust;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such Property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration of Trust and
the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrators or the Depositor with
their respective duties under this Declaration of Trust, nor shall the
Property Trustee be liable for the default or misconduct of any other
Issuer Trustee, the Administrators or the Depositor; and
(vii) subject to Section 8.1(c), no provision of this
Declaration of Trust shall require the Property Trustee to expend or
risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its
rights or powers.
(f) The Administrators shall not be responsible for monitoring
the compliance by the Issuer Trustees or the Depositor with their respective
duties under this Declaration of Trust, nor shall either Administrator be liable
for the default or misconduct of any other Administrator, the Issuer Trustees or
the Depositor.
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SECTION 8.2. Certain Notices. Within five Business Days after
the occurrence of any Event of Default actually known to a Responsible Officer
of the Property Trustee, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.9, notice of such Event of Default to the
Holders and the Administrators, unless such Event of Default shall have been
cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.9, notice of such exercise
to the Holders and the Administrators, unless such exercise shall have been
revoked.
The Property Trustee shall not be deemed to have knowledge of
any Event of Default unless the Property Trustee shall have received written
notice or a Responsible Officer of the Property Trustee charged with the
administration of this Declaration of Trust shall have obtained actual knowledge
of such Event of Default.
SECTION 8.3. Certain Rights of Property Trustee. Subject to
the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in good faith upon
any resolution, Opinion of Counsel, certificate, written representation
of a Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration of
Trust the Property Trustee is required to decide between alternative
courses of action, (ii) in construing any of the provisions of this
Declaration of Trust the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein, or (iii) the
Property Trustee is unsure of the application of any provision of this
Declaration of Trust, then, except as to any matter as to which the
Holders of the Preferred Securities are entitled to vote under the
terms of this Declaration of Trust, the Property Trustee shall deliver
a notice to the Depositor requesting the Depositor's opinion as to the
course of action to be taken and the Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee
shall deem advisable and in the best interests of the Holders, in which
event the Property Trustee shall have no liability except for its own
bad faith, negligence or wilful misconduct;
(c) any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officers'
Certificate;
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(d) any direction or act of an Administrator contemplated by
this Trust Agreement shall be sufficiently evidenced by a certificate
executed by such Administrator and setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, re-filing or re-registration
thereof;
(f) the Property Trustee may consult with counsel of its own
selection (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon and in accordance with such advice;
the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration of Trust
from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
of Trust at the request or direction of any of the Holders pursuant to
this Declaration of Trust, unless such Holders shall have offered to
the Property Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction; provided that, nothing
contained in this Section 8.3(g) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Declaration of
Trust;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Holders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may
see fit at the expense of the Depositor and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents, attorneys, custodians or nominees, provided that
the Property Trustee shall be responsible for its own negligence, bad
faith or wilful misconduct with respect to selection of any agent,
attorney, custodian or nominee appointed by it hereunder;
(j) whenever in the administration of this Declaration of
Trust the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Property Trustee (i) may request
instructions from the Holders (which instructions may only be given by
the Holders of the
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same proportion in Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action), (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received and (iii) shall be fully protected
in acting in accordance with such instructions;
(k) except as otherwise expressly provided by this Declaration
of Trust, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration of Trust; and
(l) when the Property Trustee incurs expenses or renders
services in connection with a Bankruptcy Event, such expenses
(including legal fees and expenses of its counsel) and the compensation
for such services are intended to constitute expenses of administration
under any bankruptcy law or law relating to creditors rights generally.
No provision of this Declaration of Trust shall be deemed to
impose any duty or obligation on any Issuer Trustee or Administrator to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it, in any jurisdiction in which it shall be illegal, or in which
such Person shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts, or to exercise any such right, power, duty
or obligation. No permissive power or authority available to any Issuer Trustee
or Administrator shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities Certificates
shall be taken as the statements of the Issuer Trust, and the Issuer Trustees
and the Administrators do not assume any responsibility for their correctness.
The Issuer Trustees and the Administrators shall not be accountable for the use
or application by the Debenture Issuer of the proceeds of the Debentures.
SECTION 8.5. May Hold Securities. The Administrators, any
Issuer Trustee or any other agent of any Issuer Trustee or the Issuer Trust, in
its individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Issuer Trust with the same rights it would have if it were not an Administrator,
Issuer Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees. The Depositor
agrees:
(a) to pay to each Issuer Trustee and Paying Agent from time
to time such reasonable compensation for all services rendered by them
hereunder as may be agreed upon from time to time in writing by the
Depositor and such Issuer Trustee or Paying Agent, as the case may be,
from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
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(b) except as otherwise expressly provided herein, to
reimburse each Issuer Trustee upon request for all reasonable expenses,
disbursements and advances incurred or made by each Issuer Trustee and
Paying Agent in accordance with any provision of this Declaration of
Trust (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence or
wilful misconduct; and
(c) to the fullest extent permitted by applicable law, to
fully indemnify and hold harmless (i) each Issuer Trustee, (ii) each
Administrator, (iii) each Paying Agent, (iv) any Affiliate of any
Issuer Trustee, (v) any officer, director, shareholder, employee,
representative or agent of any Issuer Trustee, and (vi) any employee or
agent of the Issuer Trust (referred to herein as an "Indemnified
Person") from and against any and all loss, damage, liability, tax
(other than income, franchise or other taxes imposed on amounts paid
pursuant to (a) or (b) hereof), penalty, expense or claim of any kind
or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation or termination of the Issuer Trust or any act
or omission performed or omitted by such Indemnified Person in good
faith on behalf of the Issuer Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Declaration of Trust,
except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of negligence, bad faith or wilful misconduct with
respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the
termination of this Declaration of Trust and the removal or resignation of any
Issuer Trustee.
No Issuer Trustee or Paying Agent may claim any Lien on any
Trust Property as a result of any amount due pursuant to this Section 8.6.
The Depositor, any Administrator, any Issuer Trustee and any
Paying Agent may engage in or possess an interest in other business ventures of
any nature or description, independently or with others, similar or dissimilar
to the business of the Issuer Trust, and the Issuer Trust and the Holders of
Trust Securities shall have no rights by virtue of this Declaration of Trust in
and to such independent ventures or the income or profits derived therefrom, and
the pursuit of any such venture, even if competitive with the business of the
Issuer Trust, shall not be deemed wrongful or improper. Neither the Depositor,
any Administrator, any Paying Agent nor any Issuer Trustee shall be obligated to
present any particular investment or other opportunity to the Issuer Trust even
if such opportunity is of a character that, if presented to the Issuer Trust,
could be taken by the Issuer Trust, and the Depositor, any Administrator, any
Issuer Trustee or any Paying Agent shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Issuer Trustee or
Paying Agent may engage or be interested in any financial or other transaction
with the Depositor or any Affiliate of the Depositor, or may act as depository
for, trustee or agent
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for, or act on any committee or body of holders of, securities or other
obligations of the Depositor or its Affiliates.
In the event that the Property Trustee is also acting as
Paying Agent or Securities Registrar hereunder, the rights and protections
afforded to the Property Trustee pursuant to this Article VIII shall also be
afforded to such Paying Agent or Securities Registrar.
SECTION 8.7. Corporate Property Trustee Required; Eligibility
of Issuer Trustees and Administrators. (a) There shall at all times be a
Property Trustee hereunder with respect to the Trust Securities. The Property
Trustee shall be a Person that is a national or state chartered bank and
eligible pursuant to the Trust Indenture Act to act as such, and that has at the
time of such appointment a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section 8.7 and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section 8.7, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. At the time of appointment, the Property
Trustee must have securities rated in one of the three highest rating categories
by a nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrators
hereunder with respect to the Trust Securities. Each Administrator shall be
either a natural person who is at least 21 years of age or a legal entity that
shall act through one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware, or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons authorized to bind
such entity.
SECTION 8.8. Conflicting Interests. (a) If the Property
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Property Trustee shall either eliminate such interest
or resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Declaration of Trust.
(b) The Guarantee Agreement and the Indenture shall be deemed
to be specifically described in this Declaration of Trust for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
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SECTION 8.9. Co-Trustees and Separate Trustee. Unless an Event
of Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be located,
the Property Trustee shall have power to appoint, and upon the written request
of the Property Trustee, the Depositor and the Administrators shall for such
purpose join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section 8.9. Any co-trustee or separate
trustee appointed pursuant to this Section 8.9 shall either be (i) a natural
person who is at least 21 years of age and a resident of the United States, or
(ii) a legal entity with its principal place of business in the United States
that shall act through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed by one or more
Administrators, and the Trust Securities shall be held by the Property
Trustee [as nominee for Cede & Co.], and all rights, powers, duties,
and obligations hereunder in respect of the custody of securities, cash
and other personal property held by, or required to be deposited or
pledged with, the Property Trustee specified hereunder shall be
exercised solely by the Property Trustee and not by such co-trustee or
separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by
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it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed
under this Section 8.9, and, in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join with the
Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigning or removed may be appointed in the manner provided
in this Section 8.9.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of
Section 8.11.
Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time by giving written notice thereof to the Holders
and by appointing a successor Relevant Trustee. The Relevant Trustee shall
appoint a successor by requesting from at least three Persons meeting the
eligibility requirements its expenses and charges to serve as the Relevant
Trustee on a form provided by the Administrators, and selecting the Person who
agrees to the lowest expenses and charges. If a successor Relevant Trustee is
not appointed within 90 days of the Relevant Trustee's resignation or removal,
the Relevant Trustee may petition at the expense of the Depositor any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee or the Delaware Trustee, or both of them,
may be removed by Act of the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and, in the case of the Property Trustee, on behalf of the
Issuer Trust) (i) for cause (including upon the occurrence of an Event of
Default described in subparagraph (d) of the definition thereof with respect to
the Relevant Trustee), or (ii) if a Debenture Event of Default shall have
occurred and be continuing at any time.
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If a resigning Issuer Trustee shall fail to appoint a
successor, or if an Issuer Trustee shall be removed or become incapable of
acting as Issuer Trustee, or if a vacancy shall occur in the office of any
Issuer Trustee for any cause, the Holders of the Preferred Securities, by Act of
the Holders of not less than 25% in aggregate Liquidation Amount of the
Preferred Securities then Outstanding delivered to such Relevant Trustee, may
appoint a successor Relevant Trustee or Trustees, and such successor Issuer
Trustee shall comply with the applicable requirements of Section 8.11. If no
successor Relevant Trustee shall have been so appointed by the Holders of the
Preferred Securities and accepted appointment in the manner required by Section
8.11, any Holder, on behalf of such Holder and all others similarly situated, or
any other Issuer Trustee, may petition at the expense of the Depositor any court
of competent jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and
each removal of an Issuer Trustee and each appointment of a successor Issuer
Trustee to all Holders in the manner provided in Section 10.9 and shall give
notice to the Depositor and to the Administrators. Each notice shall include the
name of the successor Relevant Trustee and the address of its Corporate Trust
Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration of Trust, if any Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Property Trustee following the procedures regarding expenses
and charges set forth above (with the successor being a Person who satisfies the
eligibility requirement for the Delaware Trustee set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the Trust
Securities shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Issuer Trust, and (b) shall add to or change any of the provisions of this
Declaration of Trust as shall be necessary to provide for or facilitate the
administration of the Issuer Trust by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Issuer Trust or any successor Relevant Trustee such retiring
Relevant Trustee shall (after being paid all amounts due it and its agents and
counsel) duly assign, transfer and deliver to such successor Relevant Trustee
all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
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Upon request of any such successor Relevant Trustee, the
Issuer Trust shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the
case may be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business. Any Person into which the Property Trustee or the Delaware Trustee
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person, succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided that such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Issuer Trust. If and when the Property Trustee shall be or become a
creditor of the Depositor or the Issuer Trust (or any other obligor upon the
Preferred Securities ), the Property Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the
Depositor or the Issuer Trust (or any such other obligor).
SECTION 8.14. Property Trustee May File Proofs of Claim. In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding
relative to the Issuer Trust or any other obligor upon the Trust Securities or
the property of the Issuer Trust or of such other obligor or their creditors,
the Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable and irrespective of whether the
Property Trustee shall have made any demand on the Issuer Trust for the payment
of any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Property Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement adjustment or compensation
affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 8.15. Reports by Property Trustee. (a) Not later than
May 1 of each year commencing with May 1, 2000, the Property Trustee shall
transmit to all Holders in accordance with Section 10.9, and to the Depositor, a
brief report, dated as of the immediately preceding December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Declaration of Trust during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respect with such
obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Holders
such reports concerning the Property Trustee and its actions under this
Declaration of Trust as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the NASDAQ National Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities are
listed or traded, if any, with the Commission and with the Depositor.
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SECTION 8.16. Reports to the Property Trustee. Each of the
Depositor and the Administrators on behalf of the Issuer Trust shall provide to
the Property Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314(a) of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act. The
Depositor and the Administrators shall annually file with the Property Trustee a
certificate specifying whether such Person is in compliance with all of the
terms and covenants applicable to such Person hereunder.
SECTION 8.17. Evidence of Compliance with Conditions
Precedent. Each of the Depositor and the Administrators shall provide to the
Property Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Declaration of Trust that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) of the
Trust Indenture Act shall be given in the form of an Officers' Certificate.
SECTION 8.18. Number of Issuer Trustees. (a) The number of
Issuer Trustees shall be two, provided that the Property Trustee and the
Delaware Trustee may be the same Person and in such case, the number of Issuer
Trustees shall be one.
(b) If an Issuer Trustee ceases to hold office for any reason,
a vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall not
operate to annul, dissolve or terminate the Issuer Trust.
SECTION 8.19. Delegation of Power. (a) Any Administrator may,
by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 2.7(a), including any registration
statement or amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) The Administrators shall have power to delegate from time
to time to such of their number the doing of such things and the execution of
such instruments either in the name of the Issuer Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Declaration of Trust.
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SECTION 8.20. Appointment of Administrators. (a) The
Administrators shall initially be [ ] and [ ], and their successors shall be
appointed by the Holders of a Majority in Liquidation Amount of the Common
Securities and may resign or be removed by the Holders of a Majority in
Liquidation Amount of the Common Securities at any time. Upon any resignation or
removal, the Depositor shall appoint a successor Administrator. Each
Administrator shall sign an agreement agreeing to comply with the terms of this
Declaration of Trust. If at any time there is no Administrator, the Property
Trustee or any Holder who has been a Holder of Trust Securities for at least six
months may petition any court of competent jurisdiction for the appointment of
one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall
occur, until such vacancy is filled by the appointment of an Administrator in
accordance with this Section 8.20, the Administrators in office, regardless of
their number (and notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Administrators and shall discharge all the
duties imposed upon the Administrators by this Declaration of Trust.
(c) Notwithstanding the foregoing or any other provision of
this Declaration of Trust, if any Administrator who is a natural person dies or
becomes, in the opinion of the Holder of a Majority in Liquidation Amount the
Common Securities, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by the unanimous act of the
remaining Administrators, if there were at least two of them prior to such
vacancy, and by the Depositor, if there were not two such Administrators
immediately prior to such vacancy (with the successor being a Person who
satisfies the eligibility requirement for Administrators set forth in Section
8.7).
ARTICLE IX.
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution upon Expiration Date. Unless earlier
dissolved, the Issuer Trust shall automatically dissolve, and its affairs be
wound up, on [55 years from the date of formation] (the "Expiration Date"), and
the Trust Property shall be distributed in accordance with Section 9.4.
SECTION 9.2. Early Dissolution. The first to occur of any of
the following events is an "Early Dissolution Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor, in its capacity as the
Holder of the Common Securities, unless the Depositor shall transfer
the Common Securities as provided by Section 5.11, in which case this
provision shall refer instead to any such successor Holder of the
Common Securities;
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(b) the written direction to the Property Trustee from the
Holder of the Common Securities at any time to dissolve the Issuer
Trust and to distribute the Debentures to Holders in exchange for the
Preferred Securities (which direction is optional and wholly within the
discretion of the Holder of the Common Securities);
(c) the redemption of all of the Trust Securities in
connection with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust
by a court of competent jurisdiction.
Upon the happening of any Early Dissolution Event, the Issuer Trust shall
dissolve.
SECTION 9.3. Termination. The respective obligations and
responsibilities of the Issuer Trustees, the Administrators and the Issuer Trust
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Holders of all amounts required to be distributed
hereunder upon the liquidation of the Issuer Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to Section 4.2; (b)
the payment or reasonable provision of any expenses owed by the Issuer Trust;
(c) the discharge of all administrative duties of the Administrators, including
the performance of any tax reporting obligations with respect to the Issuer
Trust or the Holders; and (d) the filing by either of the Issuer Trustees (each
of whom is authorized hereby to file such certificate) of a certificate of
cancellation of the Issuer Trust in the Office of the Secretary of State of the
State of Delaware.
SECTION 9.4. Liquidation. (a) If an Early Dissolution Event
specified in clause (a), (b) or (d) of Section 9.2 occurs or upon the Expiration
Date, the Issuer Trust shall be liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be possible by distributing,
after satisfaction of liabilities to creditors of the Issuer Trust as provided
by applicable law, to each Holder a Like Amount of Debentures, subject to
Section 9.4(d). Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid mailed not less than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All such notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Securities Certificates for Debentures,
or if Section 9.4(d) applies receive a
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Liquidation Distribution, as the Property Trustee (after consultation
with the Administrators) shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Issuer Trust and distribution of the Debentures to
Holders, the Property Trustee, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish a record date for
such distribution (which shall be the 15th day (whether or not a business day)
prior to the Liquidation Date) and, establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to Holders of Securities Certificates, upon surrender of such
Certificates to the exchange agent for exchange, (iii) Securities Certificates
not so surrendered for exchange will be deemed to represent a Like Amount of
Debentures bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Securities
Certificates with respect to such Debentures) and (iv) all rights of Holders
holding Trust Securities will cease, except the right of such Holders to receive
Debentures upon surrender of Securities Certificates.
(d) If, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, or if an Early
Dissolution Event specified in clause (c) of Section 9.2 occurs, the Trust
Property shall be liquidated, and the Issuer Trust shall be dissolved by the
Property Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution of the Issuer Trust, Holders will be
entitled to receive out of the assets of the Issuer Trust available for
distribution to Holders, after satisfaction of liabilities to creditors of the
Issuer Trust as provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"). If, upon
any such dissolution, the Liquidation Distribution can be paid only in part
because the Issuer Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Issuer Trust on the Trust Securities shall
be paid on a pro rata basis (based upon Liquidation Amounts). The Holder of the
Common Securities will be entitled to receive Liquidation Distributions upon any
such dissolution pro rata (determined as aforesaid) with Holders of all
Securities, except that, if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities as
provided in Section 4.3.
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SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Issuer Trust. The Issuer Trust may not merge with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any other Person, except
pursuant to this Article IX. At the request of the Holders of the Common
Securities and without the consent of any Holder of the Preferred Securities or
any Issuer Trustee or Administrator, the Issuer Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any State; provided, that (i) such successor entity either (A)
expressly assumes all of the obligations of the Issuer Trust with respect to the
Preferred Securities, or (B) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities have the same
priority as the Preferred Securities with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) a trustee of such successor
entity possessing the same powers and duties as the Property Trustee is
appointed to hold the Debentures, (iii) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization that then assigns a
rating to the Preferred Securities, (iv) the Successor Securities are listed, or
any Successor Securities will be listed upon notice of issuance, on any national
securities exchange or other organization on which the Preferred Securities are
then listed, if any, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, (vi) such successor entity has a
purpose substantially identical to that of the Issuer Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
the Property Trustee has received an Opinion of Counsel to the effect that (A)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor Securities) in any
material respect, and (B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Issuer Trust nor such
successor entity will be required to register as an "investment company" under
the Investment Company Act, and (viii) the Depositor or its permitted transferee
owns all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee Agreement. Notwithstanding the foregoing,
the Issuer Trust shall not, except with the consent of Holders of all of the
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Issuer Trust or the successor entity to be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes or cause the Debentures or any security succeeding such Debentures to
be treated as other than indebtedness of the Debenture Issuer for United States
federal income tax
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purposes unless Issuer Trust first obtains the consent of all Holders of
Outstanding Preferred Securities.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders. Except as set
forth in Section 9.2, the death or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate this
Declaration of Trust, nor entitle the legal representatives, successors, or
heirs of such Person or any Holder for such Person, to claim an accounting, take
any action or bring any proceeding in any court for a partition or winding up of
the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 10.2. Agreed Tax Treatment of Issuer Trust and Trust
Securities. The parties hereto and, by its acceptance or acquisition of a Trust
Security or a beneficial interest therein the Holder of, and any Person that
acquires a beneficial interest in, such Trust Security intend and agree to treat
the Issuer Trust as a grantor trust for United States federal, state and local
tax purposes, and to treat the Trust Securities (including but not limited to
all payments and proceeds with respect to such Trust Securities) as undivided
beneficial ownership interests in the Trust Property (and payments and proceeds
therefrom, respectively) for United States federal, state and local tax
purposes. The provisions of this Declaration of Trust shall be interpreted to
further this intention and agreement of the parties.
SECTION 10.3. Amendment. (a) This Declaration of Trust may be
amended from time to time by the Property Trustee and the Holder of all the
Common Securities, without the consent of any Holder of the Preferred
Securities, (i) to cure any ambiguity, correct or supplement any provision
herein that may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Declaration of Trust, which shall not be inconsistent with the other provisions
of this Declaration of Trust, or (ii) to modify, eliminate or add to any
provisions of this Declaration of Trust to such extent as shall be necessary to
ensure that the Issuer Trust will not be taxable as a corporation or will be
classified as other than a grantor trust for United States federal income tax
purposes at all times that any Trust Securities are Outstanding or to ensure
that the Debentures are treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes, or to ensure that the Issuer Trust
will not be required to register as an "investment company" under the Investment
Company Act; provided, however, that in the case of either clauses (i) or (ii)
such action shall not adversely affect in any material respect the interests of
any Holder and does not become effective until notice of the amendment is given
to the Holders of Outstanding Preferred Securities.
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(b) Except as provided in Section 10.3(c) hereof, any
provision of this Declaration of Trust may be amended by the Property Trustee,
the Delaware Trustee and the Holder of all of the Common Securities and with (i)
the consent of Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, and (ii) receipt by the Issuer Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Issuer Trustees or the Administrators in accordance with such amendment
will not cause the Issuer Trust to be taxable as a corporation or classified as
other than a grantor trust for United States federal income tax purposes or
affect the treatment of the Debentures as indebtedness of the Debenture Issuer
for United States federal income tax purposes or affect the Issuer Trust's
exemption from status as an "investment company" under the Investment Company
Act.
(c) In addition to and notwithstanding any other provision in
this Declaration of Trust, without the consent of each affected Holder, this
Declaration of Trust may not be amended to (i) change the amount or timing of
any Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date, or (ii) restrict the right of a Holder to
institute suit for the enforcement of any such payment on or after such date;
and notwithstanding any other provision herein, without the unanimous consent of
the Holders, this paragraph (c) of this Section 10.3 may not be amended.
(d) Notwithstanding any other provisions of this Declaration
of Trust, no Issuer Trustee shall enter into or consent to any amendment to this
Declaration of Trust that would cause the Issuer Trust in the Opinion of
Counsel, to fail or cease to qualify for the exemption from status as an
"investment company" under the Investment Company Act or to be taxable as a
corporation or to be classified as other than a grantor trust for United States
federal income tax purposes or that would cause the Debentures to fail or cease
to be treated as indebtedness of the Debenture Issuer for United States federal
income tax purposes.
(e) Notwithstanding anything in this Declaration of Trust to
the contrary, without the consent of the Depositor and the Administrators, this
Declaration of Trust may not be amended in a manner that imposes any additional
obligation on the Depositor or the Administrators.
(f) If any amendment to this Declaration of Trust is made, the
Administrators or the Property Trustee shall promptly provide to the Depositor a
copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Declaration of Trust that
affects its own rights, duties or immunities under this Declaration of Trust.
The Property Trustee shall be provided with an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Declaration of Trust is
in compliance with this Declaration of Trust and all conditions precedent herein
provided for relating to such action have been met.
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SECTION 10.4. Separability. If any provision in this
Declaration of Trust or in the Securities Certificates shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.5. Governing Law. THIS DECLARATION OF TRUST AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE ISSUER TRUST, THE DEPOSITOR,
THE ISSUER TRUSTEES AND THE ADMINISTRATORS WITH RESPECT TO THIS DECLARATION OF
TRUST AND THE TRUST SECURITIES SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS, REMEDIES AND
OBLIGATIONS SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION THAT WOULD
CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF
DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO ANY OF THE
AFOREMENTIONED PARTIES OR THIS DECLARATION OF TRUST OR THE TRUST SECURITIES ANY
PROVISION OF THE LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING
TO TRUSTS THAT RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS
HEREOF (A) THE FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE
ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS
TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE
NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE
ACQUISITION, HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR
OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E)
THE ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F)
RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION
OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER
MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF
FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR
POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR
AUTHORITIES AND POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN
THIS DECLARATION OF TRUST. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL
NOT APPLY TO THE ISSUER TRUST.
SECTION 10.6. Payments Due on Non-Business Day. If the date
fixed for any payment on any Trust Security shall be a day that is not a
Business Day, then such payment need not be made on such date but may be made on
the next succeeding day that is a Business Day (except as otherwise provided in
Sections 4.1(a) and 4.2(d)), with the same force and effect as though made on
the date fixed for such payment, and no Distributions shall accumulate on such
unpaid amount for the period after such date.
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SECTION 10.7. Successors. This Declaration of Trust shall be
binding upon and shall inure to the benefit of any successor to the Depositor,
the Issuer Trust, the Administrators and any Issuer Trustee, including any
successor by operation of law. Except in connection with a consolidation, merger
or sale involving the Depositor that is permitted under Article VIII of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Depositor's obligations hereunder, the Depositor shall not assign its
obligations hereunder.
SECTION 10.8. Headings. The Article and Section headings are
for convenience only and shall not affect the construction of this Declaration
of Trust.
SECTION 10.9. Reports, Notices and Demands. Any report,
notice, demand or other communication that by any provision of this Declaration
of Trust is required or permitted to be given or served to or upon any Holder or
the Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case addressed (a) in the case of a Holder of Preferred
Securities, to such Holder as such Holder's name and address may appear on the
Securities Register; and (b) in the case of the Holder of all the Common
Securities or the Depositor, to Citadel Communications Corporation, City Center
West, Suite 400, 7201 West Lake Mead Boulevard, Las Vegas, Nevada 89128
Attention: Secretary, facsimile no.: [ ], or to such other address as may be
specified in a written notice by the Holder of all the Common Securities or the
Depositor, as the case may be, to the Property Trustee. Such notice, demand or
other communication to or upon a Holder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission. Such notice, demand or other communication to or upon the
Depositor shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Depositor.
Any notice, demand or other communication that by any
provision of this Declaration of Trust is required or permitted to be given or
served to or upon the Issuer Trust, the Property Trustee, the Delaware Trustee,
the Administrators or the Trust shall be given in writing by deposit thereof,
first-class postage prepaid, in the U.S. mail, hand delivery or facsimile
transmission, addressed to such Person as follows: (a) with respect to the
Property Trustee to The Bank of New York, 101 Barclay Street, Floor 21 West, New
York, New York 10286; Attention: Corporate Trust Administration, facsimile no.:
(212) 815-5915; (b) with respect to the Delaware Trustee, to The Bank of New
York (Delaware), [ ], Attention: [ ]; (c) with respect to the Administrators, to
them at the address above for notices to the Depositor, marked "Attention:
Administrators of CCC Capital Trust I"; and (d) with respect to the Issuer
Trust, to its principal office specified in Section 2.2, with a copy to the
Property Trustee. Such notice, demand or other communication to or upon the
Issuer Trust, the Property Trustee or the Administrators shall be deemed to have
been sufficiently given or made only upon actual receipt of the writing by the
Issuer Trust, the Property Trustee or such Administrator.
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SECTION 10.10. Agreement Not to Petition. Each of the Issuer
Trustees and the Depositor agree for the benefit of the Holders that, until at
least one year and one day after the Issuer Trust has been terminated in
accordance with Article IX, they shall not file, or join in the filing of, a
petition against the Issuer Trust under any bankruptcy, insolvency,
reorganization or other similar law (including the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Issuer Trust under any Bankruptcy Law. If the
Depositor takes action in violation of this Section 10.10, the Property Trustee
agrees, for the benefit of Holders, that at the expense of the Depositor, it
shall file an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by the Depositor against the Issuer Trust or the
commencement of such action and raise the defense that the Depositor has agreed
in writing not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as counsel for the Issuer Trustee or
the Issuer Trust may assert.
SECTION 10.11. Trust Indenture Act; Conflict with Trust
Indenture Act. (a) This Declaration of Trust is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration of Trust
and shall, to the extent applicable, be governed by such provisions of the Trust
Indenture Act.
(b) The Property Trustee shall be the only Issuer Trustee that
is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c) thereof, such imposed duties
shall control. If any provision of this Declaration of Trust modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Declaration of
Trust as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this
Declaration of Trust shall not affect the nature of the Trust Securities as
equity securities representing undivided beneficial interests in the assets of
the Issuer Trust.
SECTION 10.12. Acceptance of Terms of Declaration of Trust,
Guarantee Agreement and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST
SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS DECLARATION OF TRUST, THE GUARANTEE AGREEMENT AND THE INDENTURE, AND
AGREEMENT TO THE SUBORDINATION PROVISIONS, THE TAX TREATMENT PROVISION AND OTHER
TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND
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SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS
THAT THE TERMS AND PROVISIONS OF THIS DECLARATION OF TRUST SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND SUCH
OTHERS.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Declaration of Trust as of the day and year first above
written.
Citadel Communications Corporation, as Depositor
By: ____________________________________
Name:
Title:
THE BANK OF NEW YORK, as Property Trustee
By: ____________________________________
Name:
Title: Vice President
THE BANK OF NEW YORK (DELAWARE), as
Delaware Trustee
By: ____________________________________
Name:
Title: Vice President
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Exhibit A
CERTIFICATE OF TRUST OF
CCC CAPITAL TRUST I
THIS CERTIFICATE OF TRUST OF CCC CAPITAL TRUST I (the "Trust"), dated
December 3, 1999, is being duly executed and filed by the undersigned trustees
for the purposes of organizing a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is CCC Capital
Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with its principal place of business in the State of Delaware is The
Bank of New York (Delaware), Route 273, 110 White Clay Center, Newark, Delaware
19711.
3, Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
trustee of the Trust
By:_______________________________________
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity but solely as
trustee of the Trust
By:_______________________________________
Name:
Title:
A-1
<PAGE> 70
Exhibit B
[FORM OF LETTER OF REPRESENTATIONS]
[ ] __, 1999
The Depository Trust and Clearing Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: General Counsel's Office
Re: CCC Capital Trust I ___% Preferred Securities,
Series A CUSP No. _____________
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust and Clearing
Company ("DTC"). All will book entry ____% Preferred Securities, Series A (the
"Preferred Securities"), of CCC Capital Trust I, a statutory business trust
formed under the laws of the State of Delaware (the "Issuer"), governed by the
Amended and Restated Declaration of Trust, dated as of [ ] __, 1999 (the
"Amended and Restated Declaration of Trust"), between Citadel Communications
Corporation, (the "Corporation"), as Depositor, The Bank of New York, as
Property Trustee, The Bank of New York (Delaware), as Delaware Trustee and
Several Holders as defined therein. The payment of distributions on the
Preferred Securities and payments due upon liquidation of the Issuer or
redemption of the Preferred Securities, to the extent the Issuer has funds
available for the payment thereof, are guaranteed by the Corporation to the
extent set forth in a Guarantee Agreement, dated as of [ ] __, 1999, between the
Corporation and The Bank of New York, as Guarantee Trustee with respect to the
Preferred Securities. The Corporation and the Issuer propose to sell the
Preferred Securities to the Underwriters (the "Underwriters") pursuant to a
Pricing Agreement, dated as of [ ] __, 1999, by and among the Underwriters, the
Issuer and the Corporation, and the Underwriting Agreement, dated as of [ ] __,
1999, by and among the Underwriters, the Issuer and the Corporation, and the
Underwriters wish to take delivery of the Preferred Securities through DTC. The
Bank of New York is acting as transfer agent and registrar with respect to the
Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible
for deposit at DTC, and to act in accordance with DTC's rules with respect to
the Preferred Securities, the Issuer and the Transfer Agent and Registrar make
the following representations to DTC:
B-1
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1. Prior to the closing of the sale of the Preferred
Securities to the Underwriters on [ ] __, 1999, there shall be deposited with,
or held by the Transfer Agent and Registrar as custodian for, DTC one or more
global certificates (individually and collectively, the "Global Certificate")
registered in the name of DTC's nominee, Cede & Co., representing an aggregate
of $________ Preferred Securities and bearing the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust and Clearing Company, a
New York corporation ("DTC"), to Issuer or its agent for
registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
2. The Amended and Restated Declaration of Trust of the Issuer
provides for the voting by holders (with no provision for revocation of consents
or votes by subsequent holders) of the Preferred Securities under certain
limited circumstances. The Issuer shall establish a record date for such
purposes and shall, to the extent possible, give DTC notice of such record date
not less than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion,
recapitalization, reorganization or any other similar transaction resulting in
the cancellation of all or any part of the Series A Preferred Securities
outstanding, the Issuer or the Transfer Agent and Registrar shall send DTC a
notice of such event as soon as possible but, at least 5 business days prior to
the effective date of such event.
4. In the event of any distribution on, or an offering or
issuance of rights with respect to, the Preferred Securities outstanding, the
Issuer or the Transfer Agent and Registrar shall send DTC a notice specifying:
(a) the amount of and conditions, if any, applicable to the payment of any such
distribution or any such offering or issuance of rights; (b) any applicable
expiration or deadline date, or any date by which any action on the part of the
holders of Preferred Securities is required; and (c) the date any required
notice is to be mailed by or on behalf of the Issuer to holders of Preferred
Securities or published by or on behalf of the Issuer (whether by mail or
publication, the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before the
Publication Date. The Issuer or the Transfer Agent and Registrar will forward
such notice either in a separate secure transmission for each CUSP number or in
a secure transmission of multiple CUSP numbers (if applicable) that includes a
manifest or list of each CUSP number submitted in that transmission. (The party
sending such
B-2
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notice shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust and Clearing Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm
DTC's receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust and Clearing Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes), shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or
by mail or any other means to:
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Manager, Reorganization Department
Reorganization Window
The Depository Trust and Clearing Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain
the CUSP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "CCC Capital Trust I, ___% Preferred Securities. Series A".
8. Distribution payments or other cash payments with respect
to the Preferred Securities shall be governed by DTC's current Principal and
Income Payments Rider, a copy of which is attached hereto as Annex I. For
purposes of this letter, the term "Agent" used in Annex I shall be deemed to
refer to The Bank of New York or any successor Property Trustee under the
Amended and Restated Declaration of Trust.
9. DTC may direct the Issuer and the Transfer Agent and
Registrar to use any other telecopy number or address of DTC as the number or
address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other
similar transaction (e.g., tender made and accepted in response to the Issuer's
or the Transfer Agent and Registrar's invitation) necessitating a reduction in
the aggregate number of Preferred Securities outstanding evidenced by the Global
Certificate, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities
depositary with respect to the Preferred Securities at any time by giving
reasonable prior written notice to the Issuer and the Transfer Agent and
Registrar (at which time DTC will confirm with the Issuer or the Transfer Agent
and Registrar the aggregate number of Preferred Securities deposited with it)
and discharging its responsibilities with respect thereto under applicable law.
Under such circumstances, the Issuer may determine to make alternative
arrangements for book-entry settlement for the Preferred Securities, make
available one or more separate global certificates evidencing Preferred
Securities to any Participant having Preferred Securities credited to its DTC
account, or issue definitive Preferred Securities to the beneficial holders
thereof, and in any such case, DTC agrees to cooperate fully with the Issuer and
the Transfer Agent and Registrar and to return the Global Certificate, duly
endorsed for transfer as directed by the Issuer or the Transfer Agent and
Registrar, together with any other documents of transfer reasonably requested by
the Issuer or the Transfer Agent and Registrar.
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12. In the event that the Issuer determines that beneficial
owners of Preferred Securities shall be able to obtain definitive Preferred
Securities, the Issuer or the Transfer Agent and Registrar shall notify DTC of
the availability of certificates. In such event, the Issuer or the Transfer
Agent and Registrar shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others, and DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Nothing herein shall be deemed to require the Transfer Agent
and Registrar to advance funds on behalf of CCC Capital Trust I.
Very truly yours,
CCC Capital Trust I
(As Issuer)
By: _____________________________________
Administrator
THE BANK OF NEW YORK
(As Transfer Agent and Registrar)
By: _____________________________________
Administrator
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By: _____________________________________
Authorized Officer
B-5
<PAGE> 75
Exhibit C
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE DECLARATION OF TRUST
AND ONLY IN CONNECTION WITH A SIMULTANEOUS DELEGATION AND
ASSIGNMENT OF THE EXPENSE AGREEMENT REFERRED TO THEREIN
Certificate Number Number of Common Securities
C-
Certificate Evidencing Common Securities
of
CCC Capital Trust I
___% Common Securities
(liquidation amount $___ per Common Security)
CCC Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
[NAME OF HOLDER] (the "Holder") is the registered owner of common securities of
the Issuer Trust representing undivided beneficial interests in the assets of
the Issuer Trust and designated the ___% Common Securities (liquidation amount
$___ per Common Security) (the "Common Securities"). Except in accordance with
Section 5.11 of the Declaration of Trust (as defined below) the Common
Securities are not transferable and any attempted transfer hereof other than in
accordance therewith shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Declaration of Trust of the Issuer
Trust, dated as of [ ], 1999, as the same may be amended from time to time (the
"Declaration of Trust"), among Citadel Communications Corporation, as Depositor,
The Bank of New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee, and the Holders of Trust Securities. The Issuer Trust will
furnish a copy of the Declaration of Trust to the Holder without charge upon
written request to the Issuer Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
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This Common Securities Certificate shall be governed by and
construed in accordance with the laws of the State of Delaware.
Terms used but not defined herein have the meanings set forth
in the Declaration of Trust.
IN WITNESS WHEREOF, one of the Administrators of the Issuer
Trust has executed this certificate this __ day of [ ], 1999.
CCC Capital Trust I
By: _____________________________________
Administrator
C-2
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Exhibit D
[FORM OF EXPENSE AGREEMENT]
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of [ ],
1999, between Citadel Communications Corporation, a Nevada Corporation, as
holder of the Common Securities and issuer of Debentures (the "Corporation"),
and CCC Capital Trust I, a Delaware business trust (the "Issuer Trust").
WHEREAS, the Issuer Trust intends to issue its Common
Securities (the "Common Securities") to and acquire Debentures from the
Depositor or the Subsidiary and to issue and sell ____% Preferred Securities
(the "Preferred Securities") with such powers, preferences and special rights
and restrictions as are set forth in the Amended and Restated Declaration of
Trust, dated as of [ ], 1999, among Citadel Communications Corporation, as
Depositor, The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee, and the Holders of Trust Securities, as the
same may be amended from time to time (the "Declaration of Trust");
WHEREAS, the Corporation will directly or indirectly own all
of the Common Securities of the Issuer Trust and will issue the Debentures;
WHEREAS, the Depositor or Subsidiary will issue the Debentures
to the Issuer Trust;
WHEREAS, capitalized terms used but not defined herein have
the meanings set forth in the Declaration of Trust;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by the Corporation. The Corporation
hereby agrees to assume any and all Obligations (as hereinafter defined) of the
Issuer Trust and, in the event any such Obligation is not so assumed, subject to
the terms and conditions hereof, the Corporation hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Issuer Trust is
now or hereafter becomes indebted or liable (the "Beneficiaries") the full
payment, when and as due, of any and all Obligations (as hereinafter defined) to
such Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities (but not including liabilities relating to taxes) of the Issuer
Trust, other than obligations of the Issuer Trust to pay to holders of
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any Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
SECTION 1.2. Subordination of Guarantee. The guarantee and
other liabilities and obligations of the Corporation under this Agreement shall
constitute unsecured obligations of the Corporation and shall rank subordinate
and junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Corporation [to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the
Corporation hereunder]. The obligations of the Corporation hereunder do not
constitute Senior Indebtedness (as defined in the Indenture) of the Corporation.
SECTION 1.3. Term of Agreement. This Agreement shall terminate
and be of no further force and effect upon the later of (a) the date on which
full payment has been made of all amounts payable to all holders of all the
Preferred Securities (whether upon redemption, liquidation, exchange or
otherwise) and (b) the date on which the Debentures shall have been distributed
to the Holders of the Trust Securities as provided in Article IX of the
Declaration of Trust; provided, however, that this Agreement shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by the Corporation and The Bank of New
York, as guarantee trustee, or under this Agreement for any reason whatsoever.
This Agreement is continuing, irrevocable, unconditional and absolute.
SECTION 1.4. Waiver of Notice. The Corporation hereby waives
notice of acceptance of this Agreement and of any Obligation to which it applies
or may apply, and the Corporation hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 1.5. No Impairment. The obligations, covenants,
agreements and duties of the Corporation under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Issuer Trust
of all or any portion of the Obligations or for the performance of any
other obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Issuer Trust
granting indulgence or extension of any kind; or
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(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer Trust or any of the assets of the Issuer Trust
(other than the dissolution of the Trust in accordance with the terms
thereof).
There shall be no obligation of the Beneficiaries to give
notice to, or obtain the consent of, the Corporation with respect to the
happening of any of the foregoing.
SECTION 1.6. Enforcement. A Beneficiary may enforce this
Agreement directly against the Corporation and the Corporation waives any right
or remedy to require that any action be brought against the Issuer Trust or any
other person or entity before proceeding against the Corporation.
SECTION 1.7. Subrogation. The Corporation shall be subrogated
to all rights (if any) of any Beneficiary against the Issuer Trust in respect of
any amounts paid to the Beneficiaries by the Corporation under this Agreement;
provided, however, that the Corporation shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Agreement, if,
at the time of any such payment, any amounts are due and unpaid under this
Agreement.
ARTICLE II
SECTION 2.1. Assignment. This Agreement may not be assigned by
either party hereto without the consent of the other, and any purported
assignment without such consent shall be void; provided, however, that, upon any
transfer of the Common Securities, this Agreement shall be assigned and
delegated by the Corporation to its successor with such transfer without any
action by either party hereto.
SECTION 2.2. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Corporation and shall inure to the benefit
of the Beneficiaries.
SECTION 2.3. Amendment. So long as there remains any
Beneficiary or any Preferred Securities are outstanding, this Agreement shall
not be modified or amended in any manner adverse to such Beneficiary or to the
holders of the Preferred Securities without the consent of such Beneficiary or
the holders of the Preferred Securities, as the case may be.
SECTION 2.4. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
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<PAGE> 80
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer-back, if sent by telex):
CCC Capital Trust I
c/o The Bank of New York
[ ]
[ ]
[ ]
Facsimile No.: [ ]
Attention: Corporate Trust and Agency Services
With a copy to:
Citadel Communications Corporation
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
Facsimile No.: ______________
Attention: Secretary
SECTION 2.5. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
THIS AGREEMENT is executed as of the day and year first above
written.
CITADEL COMMUNICATIONS
CORPORATION
By: __________________________________
Name:
Title:
CCC Capital Trust I
By: __________________________________
Name:
Title: Administrator
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<PAGE> 81
Exhibit E
[FORM OF PREFERRED SECURITIES CERTIFICATE]
[IF THE PREFERRED SECURITIES CERTIFICATE IS TO BE EVIDENCED BY
A GLOBAL CAPITAL SECURITY, INSERT--THIS PREFERRED SECURITIES CERTIFICATE IS A
GLOBAL PREFERRED SECURITY WITHIN THE MEANING OF THE DECLARATION OF TRUST
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS PREFERRED SECURITIES CERTIFICATE IS EXCHANGEABLE
FOR PREFERRED SECURITIES CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE DECLARATION OF TRUST AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION OF TRUST.
UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST AND CLEARING COMPANY, A NEW
YORK CORPORATION ("DTC"), TO CCC CAPITAL TRUST I OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
E-1
<PAGE> 82
Certificate Number Number of Preferred Security
CAI-
CUSIP NO.
___________________
Certificate Evidencing Preferred Security
of
CCC Capital Trust I
____% Preferred Security, Series A
(liquidation amount $___ per Preferred Security)
CCC Capital Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
____________ (the "Holder") is the registered owner of___________________( )__
Preferred Security of the Trust representing an undivided preferred beneficial
interest in the assets of the Trust and designated the CCC Capital __ ____%
Preferred Security, Series A (liquidation amount $__ per Preferred Security)
(the "Preferred Security"). The Preferred Security are transferable on the books
and records of the Issuer Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for transfer
as provided in Section 5.5 of the Declaration of Trust (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Security are set forth in, and this certificate and
the Preferred Security represented hereby are issued and shall in all respects
be subject to the terms and provisions of, the Amended and Restated Declaration
of Trust of the Issuer Trust, dated as of [ ], 1999, as the same may be
amended from time to time (the "Declaration of Trust"), among Citadel
Communications Corporation, as Depositor, The Bank of New York, as Property
Trustee, The Bank of New York (Delaware), as Delaware Trustee, and the Holders
of Trust Securities, including the designation of the terms of the Preferred
Security as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by Citadel Communications Corporation, a Nevada
corporation, and The Bank of New York, as Guarantee Trustee, dated as of [ ],
1999 (the "Guarantee Agreement"), to the extent provided therein. The Trust will
furnish a copy of the Issuer Declaration of Trust and the Guarantee Agreement to
the Holder without charge upon written request to the Property Trustee at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
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<PAGE> 83
This Preferred Security Certificate shall be governed by and
construed in accordance with the laws of the State of Delaware.
All capitalized terms used but not defined in this Preferred
Security Certificate are used with the meanings specified in the Declaration of
Trust, including the Exhibits thereto.
IN WITNESS WHEREOF, one of the Administrators of the Issuer
Trust has executed this certificate this __ day of [ ], 1999.
CCC Capital Trust I
By: ______________________________________
Name:
Title: Administrator
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<PAGE> 84
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ________________________
Signature: _____________________________________________________________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
The signature(s) should be guaranteed by an institution which is a member of one
of the following recognized signature guarantee programs:
(1) The Securities Transfer Agents Medallion Program (STAMP)
(2) The New York Stock Exchange Medallion Stamp Program (MSP); or
(3) The Stock Exchange Medallion Program (SEMP).
E-4
<PAGE> 1
EXHIBIT 4.21
FORM OF STOCK
PURCHASE CONTRACT AGREEMENT
CITADEL COMMUNICATIONS CORPORATION
AND
{PURCHASE CONTRACT AGENT}
DATED AS OF __________________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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PARTIES
RECITALS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions................................................................................1
Section 102. Compliance Certificates and Opinions.......................................................5
Section 103. Form of Documents Delivered to Agent.......................................................6
Section 104. Acts of Holders; Record Dates..............................................................6
Section 105. Notices, etc., to Agent and the Company....................................................7
Section 106. Notice to Holders; Waiver..................................................................7
Section 107. Effect of Headings and Table of Contents...................................................8
Section 108. Successors and Assigns.....................................................................8
Section 110. Benefits of Agreement......................................................................8
Section 111. Governing Law..............................................................................8
Section 112. Legal Holidays.............................................................................8
Section 113. Counterparts...............................................................................8
Section 114. Inspection of Agreement....................................................................8
ARTICLE TWO
SECURITY CERTIFICATE FORMS
Section 201. Forms of Security Certificates Generally...................................................8
Section 202. Form of Agent's Certificate of Authentication..............................................9
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms; Denominations.............................................................9
Section 302. Rights and Obligations Evidenced by the Security Certificates..............................9
Section 303. Execution, Authentication, Delivery and Dating.............................................9
Section 304. Temporary Security Certificates...........................................................10
Section 305. Registration; Registration of Transfer and Exchange.......................................10
Section 306. Mutilated, Destroyed, Lost and Stolen Security Certificates...............................12
Section 307. Persons Deemed Owners.....................................................................12
Section 308. Cancellation..............................................................................13
Section 309. Securities Not Separable..................................................................13
ARTICLE FOUR
THE PLEDGED SECURITIES
Section 401. Payment of Distributions; Rights to Distributions Preserved...............................13
Section 402. Transfer of Pledged Securities Upon Occurrence of Termination Event.......................14
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ARTICLE FIVE
THE PURCHASE CONTRACTS
Section 501. Purchase of Shares of Common Stock........................................................14
Section 502. Contract Fees.............................................................................15
Section 503. Deferral of Payment Dates for Contract Fee................................................16
Section 504. Payment of Purchase Price.................................................................16
Section 505. Issuance of Share of Common Stock.........................................................16
Section 506. Adjustment of Settlement Rate.............................................................17
Section 507. Notice of Adjustments and Certain Other Events............................................20
Section 508. Termination Event; Notice.................................................................20
Section 509. Early Settlement..........................................................................21
Section 510. No Fractional Shares......................................................................22
Section 511. Charges and Taxes.........................................................................22
ARTICLE SIX
REMEDIES
Section 6.01. Unconditional Right of Holders to Receive Contract Fee...................................22
Section 6.02. Restoration of Rights and Remedies.......................................................22
Section 6.03. Rights and Remedies Cumulative...........................................................22
Section 6.04. Delay or Omission Not Waiver.............................................................23
Section 6.05. Undertaking for Costs....................................................................23
Section 6.06. Waiver of Stay or Extension Laws.........................................................23
ARTICLE SEVEN
THE AGENT
Section 701. Certain Duties and Responsibilities.......................................................23
Section 702. Notice of Default.........................................................................24
Section 703. Certain Rights of Agent...................................................................24
Section 704. Not Responsible for Recitals or Issuance of Securities....................................24
Section 705. May Hold Securities.......................................................................25
Section 706. Money Held in Trust.......................................................................25
Section 708. Corporate Agent Required; Eligibility.....................................................25
Section 709. Resignation and Removal; Appointment of Successor.........................................25
Section 710. Acceptance of Appointment by Successor....................................................26
Section 711. Merger, Consolidation or Succession to Business...........................................26
Section 712. Preservation of Information; Communications to Holders....................................27
Section 713. No Obligations of Agent...................................................................27
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
Section 801. Supplemental Agreements Without Consent of Holders........................................27
Section 802. Supplemental Agreements with Consent of Holders...........................................28
Section 803. Execution of Supplemental Agreements......................................................28
Section 804. Effect of Supplemental Agreements.........................................................28
Section 805. Reference to Supplemental Agreements......................................................29
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ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 901. Covenant Not to Merge, Consolidate, Sell or Convey Property Except
Under Certain Conditions..............................................................29
29
Section 902. Rights and Duties of Successor Corporation................................................29
Section 903. Opinion of Counsel to Agent...............................................................29
ARTICLE TEN
COVENANTS
Section 1001. Performance Under Purchase Contracts.....................................................30
Section 1002. Maintenance of Office or Agency..........................................................30
Section 1003. Company to Reserve Common Stock..........................................................30
Section 1004. Covenants as to Common Stock.............................................................30
Section 1005. Statements of Officers of the Company as to Default......................................30
TESTIMONIUM
SIGNATURES
EXHIBIT A Form of Security Certificate
</TABLE>
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<PAGE> 5
PURCHASE CONTRACT AGREEMENT, dated as of ____________ between
CITADEL COMMUNICATIONS CORPORATION, a Nevada corporation (the "Company"), and
[PURCHASE CONTRACT AGENT], acting as purchase contract agent for the Holders of
Securities from time to time (the "Agent").
RECITALS
A. The Company has duly authorized the execution and delivery of this
Agreement and the Security Certificates evidencing the Securities.
B. All things necessary to make the Company's obligations under the
Securities, when the Security Certificates are executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent, as
in this Agreement provided, the valid obligations of the Company, and to
constitute these presents a valid agreement of the Company, in accordance with
its terms, have been done.
WITNESSETH: For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually agreed as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular; and
(2) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person, For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first
paragraph of this instrument until a successor Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter.
"Agent" shall mean the Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning specified in Section
501.
"Board of Directors" means the board of directors of the
Company or a duly authorized committee of that board.
<PAGE> 6
"Board Resolution" means one or more resolutions of the Board
of Directors, a copy of which has been certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivered to the Agent.
"Business Day" means any day that is not a Saturday, Sunday
or a day on which the NYSE or banking institutions or trust companies in the
City of New York are authorized or obligated by law or executive order to be
closed.
"Closing Price" has the meaning specified in Section 501.
"Collateral Agent" means _____________, as Collateral Agent
under the Pledge Agreement until a successor Collateral Agent shall have become
such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Collateral Agent" shall mean the Person who is then the Collateral
Agent thereunder.
"Common Stock" means the Common Stock, par value $0.01 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Contract Fee" means the fee payable by the Company in respect
of each Purchase Contract, equal to __% per annum of the Stated Amount, accruing
from ____________, 199__, computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be, plus any additional
fees accrued pursuant to Section 503.
"Corporate Trust Office" means the principal office of the
Agent in the Borough of Manhattan, The City of New York, at which at any
particular time its corporate trust business shall be administered, which office
at the date hereof is located at ________________, New York, New York.
"Current Market Price" has the meaning specified in Section
506(a)(8).
"Depositary" means a clearing agency registered under the
Exchange Act that is designated to act as Depositary for the Securities as
contemplated by Section 305.
"Early Settlement" has the meaning specified in Section
509(a).
"Early Settlement Amount" has the meaning specified in Section
509(a).
"Early Settlement Date" has the meaning specified in Section
509(a).
"Early Settlement Rate" has the meaning specified in Section
509(b)
"Exchange Act" means the Securities Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Excess Pledged Securities" has the meaning specified in
Section 402.
"Expiration Date" has the meaning specified in Section 104.
"Expiration Time" has the meaning specified in Section
506(a)(6).
"Final Settlement Date" means ____________, 199__.
2
<PAGE> 7
"Final Settlement Fund" has the meaning specified in Section
505.
"Global Security Certificate" means a Security Certificate
that evidences all or part of the Securities and is registered in the name of a
Depositary or a nominee thereof.
"Holder," when used with respect to a Security Certificate (or
a Security), means a Person in whose name the Security evidenced by such
Security Certificate (or the Security Certificate evidencing such Security) is
registered in the Security Register.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by its Chairman of the Board, any Vice
Chairman, its President or a Vice President and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the Agent.
"NYSE" has the meaning specified in Section 501.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, any Vice Chairman, the President or any Vice President
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company.
"Outstanding Securities" means, as of the date of
determination, all Securities evidenced by then Outstanding Security
Certificates, except:
(i) If a Termination Event has occurred, Securities for which
the underlying Pledged Securities have been theretofore deposited with
the Agent in trust for the Holders of such Securities; and
(ii) On and after the applicable Early Settlement Date,
Securities as to which the Holder has elected to effect Early
Termination of the related Purchase Contracts; provided, however, that
in determining whether the Holders of the requisite number of
Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or
any Affiliate of the Company shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Agent shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Agent
knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Agent the pledgee's
right so to act with respect to such Securities and that the pledgee is
not the Company or any Affiliate of the Company.
"Outstanding Security Certificates" means, as of the date of
determination, all Security Certificates theretofore authenticated, executed and
delivered under this Agreement, except:
(i) Security Certificates theretofore cancelled by the Agent
or delivered to the Agent for cancellation; and
(ii) Security Certificates in exchange for or in lieu of which
other Security Certificates have been authenticated, executed on behalf
of the Holder and delivered pursuant to this Agreement, other than any
such Security Certificate in respect of which there shall have been
presented to the Agent proof satisfactory to it that such Security
Certificate is held by a bona fide purchaser in whose hands the
Securities evidenced by such Security Certificate are valid obligations
of the Company.
3
<PAGE> 8
"Payment Date" means each _________ and ___________,
commencing ____________, 19__.
"Persons" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" means the pledge under the Pledge Agreement of the
Pledged Securities constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, in the form of
Exhibit B, dated as of the date hereof, among the Company, the Collateral Agent
and the Agent, on its own behalf and as attorney-in-fact for the Holders from
time to time of the Securities.
"Pledged Securities" means [ ].
"Predecessor Security Certificate" of any particular Security
Certificate means every previous Security Certificate evidencing all or a
portion of the rights and obligations of the Holder under the Securities
evidenced thereby; and, for the purposes of this definition, any Security
Certificate authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security Certificate shall be
deemed to evidence the same rights and obligations of the Holder as the
mutilated, destroyed, lost or stolen Security Certificate.
"Purchase Contract," when used with respect to any Security,
means the contract obligating the Company to sell and the Holder of such
Security to purchase Common Stock on the terms and subject to the conditions set
forth in Article Five hereof.
"Purchased Shares" has the meaning specified in Section
506(a)(6).
"Record Date" for the distributions and Contract Fees payable
on any Payment Date means the _____________ or _______________ (whether or not a
Business Day), as the case may be, next preceding such Payment Date.
"Reorganization Event" has the meaning specified in Section
506(b).
"Responsible Officer," when used with respect to the Agent,
means any officer of the Agent assigned by the Agent to administer its corporate
trust matters.
"Security" means the collective rights and obligations of a
Holder of a Security Certificate in respect of Pledged Securities with a
principal amount or liquidation preference equal to the Stated Amount, subject
to the Pledge thereof, and a Purchase Contract.
"Security Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Securities
specified on such certificate.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Settlement Rate" has the meaning specified in Section 501.
"Stated Amount" means $_______________.
4
<PAGE> 9
"Termination Date" means the date, if any, on which a
Termination Event occurs.
"Termination Event" means the occurrence of any of the
following events: (i) at any time on or prior to the Final Settlement Date, a
decree or order by a court having jurisdiction in the premises shall have been
entered adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization of the Company under the United States
Bankruptcy Code or any other similar applicable Federal or State law, and,
unless such decree or order shall have been entered within 60 days prior to the
Final Settlement Date, such decree or order shall have continued undischarged
and unstayed for a period of 60 days; or (ii) a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the Company or
of its property, or for the winding up or liquidation of its affairs, shall have
been entered, and, unless such decree or order shall have been entered within 60
days prior to the Final Settlement Date, such decree or order shall have
continued undischarged and unstayed for a period of 60 days; or (iii) at any
time on or prior to the Final Settlement Date the Company shall institute
proceedings to be adjudicated a bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or consent
seeking reorganization under the United States Bankruptcy Code or any other
similar applicable Federal or State law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or liquidator
or trustee or assignee in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in
Section 501.
"TIA" means the Trust Indenture Act of 1939, as amended, or
any successor statute.
"Trading Day" has the meaning specified in Section 501.
"Underwriting Agreement" means the Underwriting Agreement
dated ____________ between the Company and ________________, as representative
of the several Underwriters named therein.
"Vice President" means any vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president."
Section 102. Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Agreement, upon any application or request
by the Company to the Agent to take any action under any provision of this
Agreement, the Company shall furnish to the Agent an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Agreement
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Agreement relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Agent. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be consolidated
and form one instrument.
Section 104. Acts of Holders; Record Dates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Agent and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Agreement and (subject to Section 701)
conclusive in favor of the Agent and the Company, if made in the manner provided
in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Agent deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security Certificate
evidencing such Security issued upon the registration of transfer thereof or in
exchange therefor or in
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lieu thereof in respect of anything done, omitted or suffered to be done by the
Agent or the Company in reliance thereon, whether or not notation of such action
is made upon such Security Certificate.
(e) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled
to give, make or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this
Agreement to be given, made or taken by Holders of Securities. If any
record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders, shall
be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite number of Outstanding
Securities on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be canceled and of no effect), and
nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite number of Outstanding
Securities on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Agent in
writing and to each Holder of Securities in the manner set forth in
Section 106.
With respect to any record date set pursuant to this Section,
the Company may designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; provided that
no such change shall be effective unless notice of the proposed new Expiration
Date is given to the Agent in writing, and to each Holder of Securities in the
manner set forth in Section 106, on or prior to the existing Expiration Date. If
an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the Company shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Section 105. Notices, etc., to Agent and the Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Agreement to be made
upon, given or furnished to, or filed with,
(1) the Agent by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first class postage prepaid, to the
Agent at _______________, Attention: Stock Transfer Department, or at
any other address previously furnished in writing by the Agent to the
Holders and the Company, or
(2) the Company by the Agent or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, to the
Company at City Center West, Suite 400, 7201 West Lake Mead Boulevard,
Las Vegas, Nevada 89128, Attention: [ ], or at any other address
previously furnished in writing to the Agent by the Company.
Section 106. Notice to Holders; Waiver. Where this Agreement
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
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Where this Agreement provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Agent, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Agent
shall constitute a sufficient notification for every purpose hereunder.
Section 107. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 108. Successors and Assigns. All covenants and
agreements in this Agreement by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 109. Separability Clause. In case any provision in
this Agreement or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions hereof and
thereof shall not in any way be affected or impaired thereby.
Section 110. Benefits of Agreement. Nothing in this Agreement
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders, any benefits
or any legal or equitable right, remedy or claim under this Agreement. The
Holders from time to time shall be beneficiaries of this Agreement and shall be
bound by all of the terms and conditions hereof and of the Securities evidenced
by their Security Certificates by their acceptance of delivery thereof.
Section 111. Governing Law. This Agreement and the Securities
shall be governed by and construed in accordance with the laws of the State of
New York.
Section 112. Legal Holidays. In any case where any Payment
Date, any Early Settlement Date or the Final Settlement Date shall not be a
Business Day, then (notwithstanding any other provision of this Agreement or of
the Securities) payment in respect of distributions on Pledged Securities or
Contract Fees shall not be made, Purchase Contracts shall not be performed and
Early Settlement shall not be effected on such date, but such payments shall be
made, or the Purchase Contracts shall be performed or Early Settlement effected,
as applicable, on the next succeeding Business Day with the same force and
effect as if made on such Payment Date, Early Settlement Date or Final
Settlement Date, as the case may be; provided, that no interest shall accrue or
be payable by the Company or any Holder for the period from and after any such
Payment Date, Early Settlement Date or Final Settlement Date, as the case may
be.
Section 113. Counterparts. This Agreement may be executed in
any number of counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
Section 114. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the Corporate Trust Office for
inspection by any Holder.
ARTICLE TWO
SECURITY CERTIFICATE FORMS
Section 201. Forms of Security Certificates Generally. The
Security Certificates (including the form of Purchase Contracts forming part of
the Securities evidenced thereby) shall be in substantially the form set
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forth in Exhibit A hereto, with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Securities are listed or Depositary therefor,
or as may, consistently herewith, be determined by the officers of the Company
executing such Security Certificates, as evidenced by their execution of the
Security Certificates.
The definitive Security Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Security Certificates, consistent with the provisions of this Agreement, as
evidenced by their execution thereof.
Every Global Security Certificate authenticated, executed on
behalf of the Holders and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY CERTIFICATE IS A GLOBAL SECURITY CERTIFICATE WITHIN THE
MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS SECURITY
CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF. EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Section 202. Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the Securities shall be
in substantially the form set forth on the form of the Security Certificates.
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms; Denominations. The aggregate
number of Securities evidenced by Security Certificates authenticated, executed
on behalf of the Holders and delivered hereunder is limited to _________
(subject to increase up to a maximum of _____________ to the extent the
overallotment option of the underwriters under the Underwriting Agreement is
exercised), except for Security Certificates authenticated, executed and
delivered upon registration of transfer of, in exchange for, or in lieu of,
other Security Certificates pursuant to Section 304, 305, 306, 509 or 805.
The Security Certificates shall be issuable only in registered
form and only in denominations of a single Security and any integral multiple
thereof.
Section 302. Rights and Obligations Evidenced by the Security
Certificates. Each Security Certificate shall evidence the number of Securities
specified therein, with each such Security representing the ownership by the
Holder thereof of Pledged Securities with a principal amount or liquidation
preference equal to the Stated Amount, subject to the Pledge of such Pledged
Securities by such Holder pursuant to the Pledge Agreement, and the rights and
obligations of the Holder under one Purchase Contract. Prior to the purchase, if
any, of shares of Common Stock under the Purchase Contracts, the Securities
shall not entitle the Holders to any of the rights of a holder of shares of
Common Stock, including, without limitation, the right to vote or receive any
dividends or other payments or to consent or to receive notice as stockholders
in respect of the meetings of stockholders or for the election of directors of
the Company or for any other matter, or any other rights whatsoever as
stockholders of the Company, except to the extent otherwise expressly provided
in this Agreement.
Section 303. Execution, Authentication, Delivery and Dating.
Upon the execution and delivery of this Agreement, and at any time and from time
to time thereafter, the Company may deliver Security Certificates
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executed by the Company to the Agent for authentication, execution on behalf of
the Holders and delivery, together with its Issuer Order for authentication of
such Security Certificates, and the Agent in accordance with such Issuer Order
shall authenticate, execute on behalf of the Holder and deliver such Security
Certificates.
The Security Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the Board, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Security Certificates may be manual or
facsimile.
Security Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Security Certificates or did not hold such offices at the date of such
Security Certificates.
No Purchase Contract underlying a Security evidenced by a
Security Certificate shall be valid until such Security Certificate has been
executed on behalf of the Holder by the manual signature of an authorized
signatory of the Agent, as such Holder's attorney-in-fact. Such signature by an
authorized signatory of the Agent shall be conclusive evidence that the Holder
of such Security Certificate has entered into the Purchase Contracts underlying
the Securities evidenced by such Security Certificate.
Each Security Certificate shall be dated the date of its
authentication.
No Security Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose unless there appears on
such Security Certificate a certificate of authentication substantially in the
form provided for herein executed by an authorized signatory of the Agent by
manual signature, and such certificate upon any Security Certificate shall be
conclusive evidence, and the only evidence, that such Security Certificate has
been duly authenticated and delivered hereunder.
Section 304. Temporary Security Certificates. Pending the
preparation of definitive Security Certificates, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of the
Holders, and deliver, in lieu of such definitive Security Certificates,
temporary Security Certificates which are in substantially the form set forth in
Exhibit A hereto, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the
Securities are listed, or as may, consistently herewith, be determined by the
officers of the Company executing such Security Certificates, as evidenced by
their execution of the Security Certificates.
If temporary Security Certificates are issued, the Company
will cause definitive Security Certificates to be prepared without unreasonable
delay. After the preparation of definitive Security Certificates, the temporary
Security Certificates shall be exchangeable for definitive Security Certificates
upon surrender of the temporary Security Certificates at the Corporate Trust
Office, at the expense of the company and without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Security Certificates,
the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
one or more definitive Security Certificates of authorized denominations and
evidencing a like number of Securities as the temporary Security Certificate or
Security Certificates so surrendered. Until so exchanged, the temporary Security
Certificates shall in all respects evidence the same benefits and the same
obligations with respect to the Securities evidenced thereby as definitive
Security Certificates.
Section 305. Registration; Registration of Transfer and
Exchange. The Agent shall keep at the Corporate Trust Office a register (the
register maintained in such office being herein referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Agent shall provide for the
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registration of Security Certificates and of transfers of Security Certificates
(the Agent, in such capacity, the "Security Registrar").
Upon surrender for registration of transfer of any Security
Certificate at the Corporate Trust Office, the Company shall execute and deliver
to the Agent, and the Agent shall authenticate, execute on behalf of the
designated transferee or transferees, and deliver, in the name of the designated
transferee or transferees, one or more new Security Certificates of any
authorized denominations and evidencing a like number of Securities.
At the option of the Holder, Security Certificates may be
exchanged for other Security Certificates, of any authorized denominations and
evidencing a like number of Securities, upon surrender of the Security
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Security Certificates are so surrendered for exchange, the Company shall execute
and deliver to the Agent, and the Agent shall authenticate, execute on behalf of
the Holder, and deliver the Security Certificates which the Holder making the
exchange is entitled to receive.
All Security Certificates issued upon any registration of
transfer or exchange of a Security Certificate shall evidence the ownership of
the same number of Securities and be entitled to the same benefits and subject
to the same obligations, under this Agreement as the Securities evidenced by the
Security Certificate surrendered upon such registration of transfer or exchange.
Every Security Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the Agent) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Agent duly executed, by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of a Security Certificate, but the Company and the Agent
may require payment from the Holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Security Certificates, other than any
exchanges pursuant to Sections 306 and 805 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to execute and
deliver to the Agent, and the Agent shall not be obligated to authenticate,
execute on behalf of the Holder and deliver any Security Certificate presented
or surrendered for registration of transfer or for exchange on or after the
Final Settlement Date or the Termination Date. In lieu of delivery of a new
Security Certificate, upon satisfaction of the applicable conditions specified
above in this Section and receipt of appropriate registration or transfer
instructions from such Holder, the Agent shall (i) if the Final Settlement Date
has occurred, deliver the shares of Common Stock issuable in respect of the
Purchase Contracts forming a part of the Securities evidenced by such Security
Certificate, or (ii) if a Termination Event shall have occurred prior to the
Final Settlement Date, transfer the principal amount or liquidation amount, as
the case may be, of the Pledged Securities evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Security Certificates:
(1) Each Global Security Certificate authenticated and
executed on behalf of the Holders under this Agreement shall be
registered in the name of the Depositary designated for such Global
Security Certificate or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, an each such
Global Security Certificate shall constitute a single Security
Certificate for all purposes of this Agreement.
(2) Notwithstanding any other provision in this Agreement, no
Global Security Certificate may be exchanged in whole or in part of
Security Certificates registered, and no transfer for a Global
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Security Certificate in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security
Certificate or a nominee thereof unless (A) such Depositary (i) has
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security Certificate or (ii) has ceased to
be a clearing agency registered under the Exchange Act or (b) there
shall have occurred and be continuing a default by the Company in
respect to its obligations under one or more Purchase Contracts.
(3) Subject to Clause (2) above, any exchange of a Global
Security Certificate for other Security Certificates may be made in
whole or in part, and all Security Certificates issued in exchange for
a Global Security Certificate or any portion thereof shall be
registered in such names as the Depositary for such Global Security
Certificate shall direct.
(4) Every Security Certificate authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of, a
Global Security Certificate or any portion thereof, whether pursuant to
this Section, Section 304, 306, 509 or 805 or otherwise, shall be
authenticated, executed on behalf of the Holders and delivered in the
form of, and shall be, a Global Security Certificate, unless such
Security Certificate is registered in the name of a Person other than
the Depositary for such Global Security Certificate or a nominee
thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Security
Certificates. If any mutilated Security Certificate is surrendered to the Agent,
the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
a new Security Certificate, evidencing the same number of Securities and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
Certificate, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of any of them harmless, then, in the absence of
notice to the Company or the Agent that such Security Certificate has been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen Security
Certificate, a new Security Certificate, evidencing the same number of
Securities and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder, and deliver to the
Holder, a Security Certificate on or after the Final Settlement Date or the
Termination Date. In lieu of delivery of a new Security Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Agent shall (i) if the Final Settlement Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts forming a
part of the Securities evidenced by such Security Certificate, or (ii) if a
Termination Event shall have occurred prior to the Final Settlement Date,
transfer the principal amount of the Pledged Securities evidenced thereby, in
each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
Upon the issuance of any new Security Certificate under this
Section, the Company and the Agent may require the payment by the Holder of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Agent) connected therewith.
Every new Security Certificate issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security Certificate shall constitute
an original additional contractual obligation of the Company and of the Holder,
whether or not the destroyed, lost or stolen Security Certificate shall be at
any time enforceable by anyone,
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and shall be entitled to all the benefits and be subject to all the obligations
of this Agreement equally and proportionately with any and all other Security
Certificates delivered hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or settlement of mutilated, destroyed, lost or stolen Security
Certificates.
Section 307. Persons Deemed Owners. Prior to due presentment
of a Security Certificate for registration of transfer, the Company and the
Agent, and any agent of the Company or the Agent, may treat the Person in whose
name such Security Certificate is registered as the owner of the Securities
evidenced thereby, for the purpose of receiving payments of distributions on the
Pledged Securities, receiving payments of Contract Fees, performance of the
Purchase Contracts and for all other purposes whatsoever, whether or not the
payment of distributions on the Pledged Securities or any Contract Fee payable
in respect of the Purchase Contracts constituting a part of the Securities
evidenced thereby shall be overdue and notwithstanding any notice to the
contrary, and neither the Company nor the Agent, nor any agent or the Company or
the Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Security Certificate, nothing herein shall prevent the Company, the Agent or any
agent of the Company or the Agent, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary (or its
nominee), as a Holder, with respect to such Global Security Certificate or
impair, as between such Depositary and owners of beneficial interests in such
Global Security Certificate, the operation of customary practices governing the
exercise of rights of such Depositary (or its nominee) as Holder of such Global
Security Certificate.
Section 308. Cancellation. All Security Certificates
surrendered for delivery of shares of Common Stock on or after the Final
Settlement Date, transfer of Pledged Securities after the occurrence of a
Termination Event or pursuant to an Early Settlement or registration of transfer
or exchange shall, if surrendered to any Person other than the Agent, be
delivered to the Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Agent for
cancellation any Security Certificates previously authenticated, executed and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Security Certificates so delivered shall, upon Issuer Order,
be promptly cancelled by the Agent. No Security Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu of or in
exchange for any Security Certificates cancelled as provided in this Section,
except as expressly permitted by this Agreement. All cancelled Security
Certificates held by the Agent shall be disposed of as directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire
any Security Certificate, such acquisition shall not operate as a cancellation
of such Security Certificate unless and until such Security Certificate is
delivered to the Agent cancelled or for cancellation.
Section 309. Securities Not Separable. Notwithstanding
anything contained herein or in the Security Certificates to the contrary, for
so long as the Purchase Contract underlying a Security remains in effect such
Security shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Security in respect of the Pledged Securities
and Purchase Contracts constituting such Security may be acquired, and may be
transferred and exchanged, only as a Security. Other than a Security Certificate
evidencing a Security, no Holder of a Security, or any transferee thereof, shall
be entitled to receive a certificate evidencing the ownership of Pledged
Securities or the rights and obligations of the Holder and the Company under a
Purchase Contract for so long as the Purchase Contract underlying the Security
remains in effect.
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ARTICLE FOUR
THE PLEDGED SECURITIES
Section 401. Payment of Distributions; Rights to Distributions
Preserved. Distributions on any Pledged Security which is paid on any Payment
Date shall, subject to receipt thereof by the Agent from the Collateral Agent as
provided by the terms of the Pledge Agreement, be paid to the Person in whose
name the Security Certificate (or one or more Predecessor Security Certificates)
of which such Pledged Security is a part is registered at the close of business
on the Record Date next preceding such Payment Date.
Each Security Certificate evidencing Pledged Securities
delivered under this Agreement upon registration of transfer of or in exchange
for or in lieu of any other Security Certificate shall carry the rights to
distributions accrued and unpaid, and to accrue, which were carried by the
Pledged Securities underlying such other Security Certificate.
In the case of any Security with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date after any Record Date and on or prior to the next succeeding
Payment Date, distributions on the Pledged Securities underlying such Security
otherwise payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Early Settlement, and such distributions shall, subject to
receipt thereof by the Agent, be paid to the Person in whose name the Security
Certificate (or one or more Predecessor Security Certificates) is registered at
the close of business on the Record Date. Except as otherwise expressly provided
in the immediately preceding sentence, in the case of any Security with respect
to which Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date, distributions on the related Pledged Securities that
would otherwise be payable after the Early Settlement Date shall not be payable
hereunder to the Holder of such Security.
Section 402. Transfer of Pledged Securities Upon Occurrence of
Termination Event. Upon the occurrence of a Termination Event and the transfer
to the Agent of the Pledged Securities underlying such Securities pursuant to
the terms of the Pledge Agreement, the Agent shall request transfer instructions
with respect to such Pledged Securities from each Holder of Securities by
written request mailed to such Holder at his address as it appears in the
Security Register, in respect of the Pledged Securities underlying the Security
Certificate held by such Holder. Upon surrender to the Agent of a Security
Certificate with such transfer instructions in proper form for transfer of the
Pledged Securities by Federal Reserve BankWire, book entry transfer through the
facilities of the Depositary Trust Company, or other appropriate procedure, the
Agent shall transfer the Pledged Securities evidenced by such Security
Certificate to such Holder in accordance with such instructions. If a Security
Certificate is not duly surrendered to the Agent with appropriate transfer
instructions, the Agent shall hold the Pledged Securities evidenced by such
Security Certificate as custodian for the Holder of such Security Certificate.
Pledged Securities shall be transferred only in denominations
of $__________ and integral multiples thereof. As promptly as practicable
following the occurrence of a Termination Event, the Agent shall determine the
excess of (i) the aggregate principal amount or liquidation preference, as the
case may be, of Pledged Securities underlying the Outstanding Securities over
(ii) the aggregate principal amount or liquidation preference, as the case may
be, of Pledged Securities in denominations of $__________ and integral multiples
thereof transferrable to Holders of record on the date of such Termination Event
(such excess being herein referred to as the "Excess Pledged Securities"). As
soon as practicable after transfer to the Agent of the Pledged Securities
underlying the Outstanding Securities as provided in the Pledge Agreement, the
Agent shall sell the Excess Pledged Securities to or through one or more
registered broker dealers at then prevailing prices. The Agent shall deduct from
the proceeds of such sales all commissions and other out-of-pocket transaction
costs incurred in connection with such sales of Excess Pledged Securities and,
until the net proceeds of such sale or sales have been distributed to Holders of
the Securities, the Agent shall hold such proceeds in trust for the Holders of
Securities. Each Holder shall be entitled to receive a portion, if any, of such
net proceeds in lieu of Pledged Securities with a principal amount of less than
$____ determined by multiplying the aggregate amount of such net proceeds by a
fraction, the numerator of
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which is the fraction of $_____________ in principal amount of Pledged
Securities to which such Holder would otherwise be entitled (after taking into
account all Securities then held by such Holder) and the denominator of which is
the aggregate principal amount of Excess Pledged Securities.
ARTICLE FIVE
THE PURCHASE CONTRACTS
Section 501. Purchase of Shares of Common Stock. Each Purchase
Contract shall obligate the Holder of the related Security to purchase, and the
Company to sell, on the Final Settlement Date at a price equal to the Stated
Amount, a number of shares of Common Stock equal to the Settlement Rate, unless,
on or prior to the Final Settlement Date, there shall have occurred a
Termination Event or an Early Settlement with respect to the Security of which
such Purchase Contract is a part. The "Settlement Rate" is equal to (a) if the
Applicable Market Value (as defined below) is greater than $____ (the "Threshold
Appreciation Price"), __________ of a share of Common Stock per Purchase
Contract, (b) if the Applicable Market Value is less than or equal to the
Threshold Appreciation Price but is greater than the Stated Amount, a fractional
share of Common Stock per Purchase Contract equal to the Stated Amount divided
by the Applicable Market Value (rounded upward or downward to the nearest
1/10,000th of a share) and (c) if the Applicable Market Value is less than or
equal to the Stated Amount, one share of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in Section 506. As provided in
Section 510, no fractional shares of Common Stock will be issued upon settlement
of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing
Prices per share of Common Stock on each of the twenty consecutive Trading Days
ending on the last Trading Day immediately preceding the Final Settlement Date.
The "Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The Nasdaq Stock Market, or, if the Common Stock is not
so reported, the last quoted bid price for the Common Stock in the over-
the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has traded at least once on the national
or regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
Each Holder of a Security Certificate evidencing Securities,
by his acceptance thereof, irrevocably authorizes the Agent to enter into and
perform the related Purchase Contracts on his behalf as his attorney-in-fact,
agrees to be bound by the terms and provisions thereof, covenants and agrees to
perform his obligations under such Purchase Contracts, consents to the
provisions hereof, irrevocably authorizes the Agent as his attorney-in-fact to
enter into and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to and agrees to be bound by the Pledge of the
Pledged Securities underlying such Security Certificate pursuant to the Pledge
Agreement. Each Holder of a Security, by his acceptance thereof, further
irrevocably covenants and agrees that, to the extent and in the manner provided
in Section 504 and the Pledge Agreement, but subject to the terms thereof,
payments in respect of principal or redemption price of the Pledged Securities
on the Final Settlement Date shall be paid by the Collateral Agent to the
Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Upon registration of transfer of a Security Certificate
evidencing Purchase Contracts, the transferee shall be bound (without the
necessity of any other action on the part of such transferee), under the terms
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of this Agreement, the Purchase Contracts evidenced thereby and the Pledge
Agreement and the transferor shall be released from the obligations under the
Purchase Contracts evidenced by the Security Certificates so transferred. The
Company covenants and agrees, and each Holder of a Security Certificate, by his
acceptance thereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
Section 502. Contract Fees. Subject to Section 503, the
Company shall pay, on each Payment Date, the Contract Fees payable in respect of
each Purchase Contract to the Person in whose name the Security Certificate (or
one or more Predecessor Security Certificates) evidencing such Purchase Contract
is registered at the close of business on the Record Date next preceding such
Payment Date. The Contract Fee will be payable at the office of the Agent in the
City of New York maintained for that purpose or, at the option of the Company,
by check mailed to the address of the Person entitled thereto at such address as
it appears on the Security Register.
Each Security Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other Security
Certificate shall carry the rights to Contract Fees accrued and unpaid, and to
accrue, which were carried by the Purchase Contracts evidenced by such other
Security Certificate.
In the case of any Security with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date after any Record Date and on or prior to the next succeeding
Payment Date, Contract Fees otherwise payable on such Payment Date shall be
payable on such Payment Date notwithstanding such Early Settlement, and such
Contract Fees shall be paid to the Person in whose name the Security Certificate
evidencing such Security (or one or more Predecessor Security Certificates) is
registered at the close of business on such Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
Security with respect to which Early Settlement of the underlying Purchase
Contract is effected on an Early Settlement Date, Contract Fees that would
otherwise be payable after the Early Settlement Date with respect to the
Purchase Contract underlying such Security shall not be payable.
Section 503. Deferral of Payment Dates for Contract Fee. The
Company shall have the right, at any time prior to the Final Settlement Date, to
defer the payment of any or all of the Contract Fees otherwise payable on any
Payment Date, but only if the Company shall give the Holders and the Agent
written notice of its election to defer such payment (specifying the amount to
be deferred) at least ten Business Days prior to the earlier of (i) the next
succeeding Payment Date or (ii) the date the Company is required to give notice
of the Record Date or Payment Date with respect to payment of such Contract Fee
to the New York Stock Exchange or other applicable self-regulatory organization
or to Holders of the Securities, but in any event not less than two Business
Days prior to such Record Date. Any Contract Fees so deferred shall bear
additional Contract Fees thereon at the rate of per annum set forth in Appendix
_______ hereto (computed on the basis set forth in Appendix ____), compounding
on each succeeding Payment Date, until paid in full. Deferred Contract Fees (and
additional Contract Fees accrued thereon) shall be due on the next succeeding
Payment Date except to the extent that payment is deferred pursuant to this
Section. No Contract Fees may be deferred to a date that is after the Final
Settlement Date or, with respect to any particular Purchase Contract, Early
Settlement thereof.
Section 504. Payment of Purchase Price. The purchase price for
the shares of Common Stock purchased pursuant to a Purchase Contract shall be
paid by application of payments received by the Company on the Final Settlement
Date from the Collateral Agent pursuant to the Pledge Agreement in respect of
the principal or redemption price, as the case may be, of the Pledged Securities
Pledged to secure the obligations of the relevant Holder under such Purchase
Contract. Such application shall satisfy in full the obligations under such
Purchase Contract of the Holder of the Security of which such Purchase Contract
is a part.
The Company shall not be obligated to issue any shares of
Common Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment in full of the
aggregate purchase price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
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Section 505. Issuance of Share of Common Stock. Unless a
Termination Event shall have occurred on or prior to the Final Settlement Date,
on the Final Settlement Date, upon its receipt of payment in full of the
purchase price for the shares of Common Stock purchased by the Holders pursuant
to the foregoing provisions of this Article, and subject to Section 506(b), the
Company shall deposit with the Agent, for the benefit of the Holders of the
Outstanding Securities, one or more certificates representing the shares of
Common Stock registered in the name of the Agent (or its nominee) as custodian
for the Holders (such certificates for shares of Common Stock, together with any
dividends or distributions with respect thereto, being hereinafter referred to
as the "Final Settlement Fund") to which the Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Security Certificate to the Agent
on or after the Final Settlement Date, together with settlement instructions
thereon duly completed and executed, the Holder of such Security Certificate
shall be entitled to receive in exchange therefor a certificate representing
that number of whole shares of Common Stock with such Holder is entitled to
receive pursuant to the provisions of this Article Five (after taking into
account all Securities then held by such Holder) together with cash in lieu of
fractional shares as provided in Section 510 and any dividends or distributions
with respect to such shares constituting part of the Final Settlement Fund, but
without any interest thereon, and the Security Certificate so surrendered shall
forthwith be cancelled. Such shares shall be registered in the name of the
Holder or the Holder's designee as specified in the settlement instructions on
the Security Certificate.
If any shares of Common Stock issued in respect of a Purchase
Contract are to be registered to a Person other than the Person in whose name
the Security Certificate evidencing such Purchase Contract is registered, no
such registration shall be made unless the Person requesting such registration
has paid any transfer and other taxes required by reason of such registration in
a name other than that of the registered Holder of the Security Certificate
evidencing such Purchase Contractor has established to the satisfaction of the
Company that such tax either has been paid or is not payable.
Section 506. Adjustment of Settlement Rate. (a) Adjustments
for Dividends, Distributions, Stock Splits, Etc. (1) In case the Company shall
pay or make a dividend or other distribution on any class of Common Stock of the
Company in Common Stock, the Settlement Rate in effect at the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall be
increased by dividing such Settlement Rate by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination and the denominator shall be
the sum of such number of shares and the total number of shares constituting
such dividend or other distribution, such increase to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (1), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or
warrants to all holders of its Common Stock (not being available on an
equivalent basis to Holders of the Securities upon settlement of the Purchase
Contracts underlying such Securities) entitling them, for a period expiring
within 45 days after the record date for the determination of stockholders
entitled to receive such rights, options or warrants, to subscribe for or
purchase shares of Common Stock at a price per share less than the Current
Market Price per share of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights, options or
warrants (other than pursuant to a dividend reinvestment plan), the Settlement
Rate in effect at the opening of business on the day following the date fixed
for such determination shall be increased by dividing such Settlement Rate by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate of the offering
price of the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such Current Market Price and the denominator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares of
Common Stock so offered for
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subscription or purchase, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
shall not issue any such rights, options or warrants in respect of shares of
Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Settlement Rate
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased, and,
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the Settlement Rate in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or
combination becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness or
assets (including securities, but excluding any rights or warrants referred to
in paragraph (2) of this Section, any dividend or distribution paid exclusively
in cash and any dividend or distribution refereed to in paragraph (1) of this
Section), the Settlement Rate shall be adjusted so that the same shall equal the
rate determined by dividing the Settlement Rate in effect immediately prior to
the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the Current Market Price per share of the Common Stock on the date fixed for
such determination less the then fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Agent) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common Stock and the
denominator shall all be such Current market Price per share of the Common
Stock, such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution. In any case in which this
paragraph (4) is applicable, paragraph (2) of this Section shall not be
applicable.
(5) In case the company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash that is
distributed in a Reorganization Event to which Section 506(b) applies or as part
of a distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, combined together with (I) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in cash within
the 12 months preceding the date of payment of such distribution and in respect
of which no adjustment pursuant to this paragraph (5) or paragraph (6) of this
Section has been made and (II) the aggregate of any cash plus the fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of consideration payable in
respect of any tender or exchange offer by the Company or any of its
subsidiaries of all or any portion of the Common Stock concluded within the 12
months preceding the date of payment of such distribution and in respect of
which no adjustment pursuant to this paragraph (5) or paragraph (6) of this
Section has been made, exceeds 10% of the product of the Current Market Price
per share of the Common Stock on the date for the determination of holders of
shares of Common Stock entitled to receive such distribution times the number of
shares of Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for determination, the
Settlement Rate shall be increased so that the same shall equal the rate
determined by dividing the Settlement Rate in effect immediately prior to the
close of business on the date fixed for determination of the stockholders
entitled to receive such distribution by a fraction (i) the numerator of which
shall be equal to the Current Market Price per share of the Common Stock on the
date fixed for such determination less an amount equal to the quotient of (x)
the excess of such combined amount over such 10% and (y) the number of shares of
Common Stock outstanding on such date for
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determination and (ii) the denominator of which shall be equal to the Current
Market Price per share of the Common Stock on such date for determination.
(6) In case a tender or exchange offer made by the Company or
any subsidiary of the Company for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to stockholders (based on the acceptance (up
to any maximum specified in the terms of the tender or exchange offer) of
Purchased Shares) of an aggregate consideration having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) that combined together with (I) the
aggregate of the cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender or exchange offer, of
consideration payable in respect of any other tender or exchange offer, by the
Company or any subsidiary of the Company for all or any portion of the Common
Stock expiring within the 12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment pursuant to paragraph (5)
of this Section or this paragraph (6) has been made and (II) the aggregate
amount of any distributions to all holders of the Company's Common Stock made
exclusively in cash within 12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment pursuant to paragraph (5)
of this Section or this paragraph (6) has been made, exceeds 10% of the product
of the Current Market Price per share of the Common Stock as of the last time
(the "Expiration Time") tenders could have been made pursuant to such tender or
exchange offer (as it may be amended) times the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time, then, and in
each such case, immediately prior to the opening of business on the day after
the date of the Expiration Time, the Settlement Rate shall be adjusted so that
the same shall equal the rate determined by dividing the Settlement Rate
immediately prior to close of business on the date of the Expiration Time by a
fraction (i) the numerator of which shall be equal to (A) the product of (I) the
Current Market Price per share of the Common Stock on the date of the Expiration
Time and (II) the number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time less (B) the amount of cash plus the
fair market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of Purchased shares, and (ii) the
denominator of which shall be equal to the product of (A) the Current Market
Price per share of the Common Stock as of the Expiration Time and (B) the number
of shares of Common Stock outstanding (including any tendered shares) as of the
Expiration Time less the number of all shares validly tendered and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up to any such maximum
being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any reclassification
upon a Reorganization Event to which Section 506(b) applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of share of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section).
(8) The "Current Market Price" per share of Common Stock on
any day means the average of the daily Closing Prices for the 5 consecutive
Trading Days selected by the Company commencing not more than 20 Trading Days
before, and ending not later than, the earlier of the day in question and the
day before the "ex" date with respect to the issuance or distribution requiring
such computation. For purposes of this paragraph, the term "'ex' date", when
used with respect to any issuance or distribution, shall mean the first date on
which the Common
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Stock trades regular way on such exchange or in such market without the right to
receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated
to the nearest 1/10,000th of a share of Common Stock (or if there is not a
nearest 1/10,000th of a share to the next lower 1/10,000th of a share). No
adjustment in the Settlement Rate shall be required unless such adjustment would
require an increase or decrease of at least one percent therein; provided,
however, that any adjustments which by reason of this subparagraph are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. If an adjustment is made to the Settlement Rate pursuant
to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section 506(a),
an adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the definition of Settlement Rate
in Section 501 will apply on the Final Settlement Date. Such adjustment shall be
made by multiplying the Applicable Market Value by a fraction of which the
numerator shall be the Settlement Rate in clause (c) of the Settlement Rate
definition in Section 501 immediately after such adjustment pursuant to
paragraph (1),(2), (3), (4), (5), (6), (7) or (10) of this Section 506(a) and
the denominator shall be the Settlement Rate in clause (c) of the Settlement
Rate definition in Section 501 immediately before such adjustment.
(10) The Company may make such increases in the Settlement
Rate, in addition to those required by this Section, as it considers to be
advisable in order to avoid or diminish any income tax to any holders of shares
of common Stock resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other
Reorganization Event. In the event of (i) any consolidation or merger of the
Company, with or into another Person (other than a merger or consolidation in
which the Company is the Continuing corporation and in which the Common Stock
outstanding immediately prior to the merger or consolidation is not exchanged
for cash, securities or other property of the Company or another corporation),
(ii) any sale, transfer, lease or conveyance to another Person of the property
of the Company as an entirety or substantially as an entirety, (iii) any
statutory exchange of securities of the Company with another person (other than
in connection with a merger or acquisition) or (iv) any liquidation, dissolution
or winding up of the Company (any such event, a "Reorganization Event"), the
Settlement Rate will be adjusted to provide that each Holder of Securities will
receive on the Final Settlement Date with respect to each Purchase Contract
forming a part thereof, the kind and amount of securities, cash and other
property receivable upon such Reorganization Event by a Holder of the number of
shares of Common Stock issuable on account of each Purchase Contract if the
Final Settlement Date had occurred immediately prior to such Reorganization
Event, assuming such Holder of Common Stock is not a Person with which the
Company consolidated or into which the Company merged or which merged into the
Company or to which such sale or transfer was made, as the case may be
("constituent Person"), or an Affiliate of a constituent Person, and failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such Reorganization Event (provided that
if the kind or amount of securities, cash and other property receivable upon
such Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization event by other than a constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("nonelecting share"), then for the purpose of
this Section the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by each nonelecting share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
nonelecting shares). In the event of such a Reorganization Event, the Person
formed by such consolidation, merger or exchange or the Person which acquires
the assets of the Company or, in the event of a liquidation or dissolution of
the Company, the Company or a liquidating trust created in connection therewith,
shall execute and deliver to the Agent an agreement supplemental hereto
providing that the Holders of each Outstanding Security shall have the rights
provided by this Section 506. Such supplemental agreement shall provide for
adjustments which, for events subsequent to the effective date of such
supplemental agreement, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section. The above provisions of this
Section shall similarly apply to successive Reorganization Events.
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Section 507. Notice of Adjustments and Certain Other Events.
(a) Whenever the settlement Rate is adjusted as herein provided, the Company
shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 506 and prepare and transmit to the Agent an
Officer's Certificate setting forth the Settlement Rate, the method of
calculation thereof in reasonable detail, and the acts requiring such
adjustment and upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an
event that permits or requires an adjustment to the Settlement Rate
pursuant to Section 506 (or if the Company is not aware of such
occurrence, as soon as practicable after becoming so aware), provide a
written notice to the Holders of the Securities of the occurrence of
such event and a statement in reasonable detail setting forth the
method by which the adjustment to the Settlement Rate was determined
and setting forth the adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any holder of Securities to determine whether any facts exist
which may require any adjustment of the Settlement Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same. The Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at the time
be issued or delivered with respect to any Purchase Contract; and the Agent
makes no representation with respect thereto. The Agent shall not be responsible
for any failure of the Company to issue, transfer or deliver any shares of
Common Stock pursuant to a Purchase Contract or to comply with any of the
duties, responsibilities or covenants of the Company contained in this Article.
Section 508. Termination Event; Notice. The Purchase Contracts
and the obligations and rights of the Company and the Holders thereunder,
including, without limitation, the rights of the Holders to receive and the
obligation of the Company to pay any Contract Fee, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Agent or the Company, if, on or prior to the Final Settlement Date,
a Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall give written notice to the Agent, the Collateral Agent
and to the Holders, at their addresses as they appear in the Security Register.
Upon and after the occurrence of a Termination Event, the Securities shall
thereafter represent the right to receive the Pledged Securities forming a part
of such Securities in accordance with the provisions of Section 402 and the
Pledge Agreement.
Section 509. Early Settlement. (a) Subject to and upon
compliance with the provisions of this Section 509 at the option of the Holder
thereof, any Purchase Contracts underlying securities having an aggregate Stated
Amount to $____________ or an integral multiple thereof may be settled early
("Early Settlement") as provided herein. In order to exercise the right to
effect Early Settlement with respect to any Purchase Contracts, the Holder of
the Security Certificate evidencing such Purchase Contracts shall deliver such
Security Certificate to the Agent at the Corporate Trust Office duly endorsed
for transfer to the Company or in blank with the form of Election to Settle
Early on the reverse thereof duly completed and accompanied by payment in the
form of a certified or cashier's check payable to the order of the Company in
immediately available funds in an amount (the "Early Settlement Amount") equal
to [(i) the product of (A) the Stated Amount times (B) the number of Purchase
Contracts with respect to which the Holder has elected to effect Early
Settlement minus (ii) the aggregate amount of Contract Fees, if any, otherwise
payable on or prior to the immediately preceding Payment Date deferred at the
option of the Company pursuant to Section 503 and remaining unpaid as of such
immediately preceding Payment Date plus (iii) if such delivery is made with
respect to any Purchase Contracts during the period from the close of business
on any Record Date next preceding any Payment Date to the opening of business on
such Payment Date, an amount equal to the sum of (x) the Contract Fees payable
on such Payment Date with respect to such Purchase Contracts plus (y) the
distributions on the related Pledged Securities payable on such Payment Date].
Except as provided in the immediately preceding sentence and subject to the last
paragraph of Section 502, no payment or adjustment shall be
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made upon Early Settlement of any Purchase Contract on account of any Contract
Fees accrued on such Purchase Contract or on account of any dividends on the
Common Stock issued upon such Early Settlement. If the foregoing requirements
are first satisfied with respect to Purchase Contracts underlying any Securities
at or prior to 5:00 p.m., New York City time, on a Business Day, such day shall
be the "Early Settlement Date" with respect to such Securities and if such
requirements are first satisfied after 5:00 p.m., New York City time, on a
Business Day or on a day that is not a Business Day, the "Early Settlement Date"
with respect to such Securities shall be the next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of
the related Securities, the Company shall issue, and the Holder shall be
entitled to receive, a number of shares of Common Stock on account of each
Purchase Contract as to which Early Settlement is effected equal to the Early
Settlement Rate. The Early Settlement Rate shall initially be equal to
__________ and shall be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted. As promptly as practicable after Early Settlement
of Purchase Contracts in accordance with the provisions of this Section 509, the
Company shall issue and shall deliver to the Agent at the Corporate Trust Office
a certificate or certificates for the full number of shares of Common Stock
issuable upon such Early Settlement together with payment in lieu of any
fraction of a share, as provided in Section 510.
(c) The Company shall cause the shares of Common Stock
issuable, and Pledged Securities deliverable, upon Early Settlement of Purchase
Contracts to be issued and delivered, in the case of such shares of Common
Stock, and released from the Pledge by the Collateral Agent and transferred, in
the case of such Pledged Securities, to the Agent, for delivery to the Holder
thereof or its designee, no later than the third Business Day after the
applicable Early Settlement Date.
(d) Upon Early Settlement of any Purchase Contracts, and
subject to receipt thereof from the Company or the Collateral Agent, as
applicable, the Agent shall, in accordance with the instructions provided by the
Holder thereof on the applicable form of Election to Settle Early on the reverse
of the Security Certificate evidencing the related Securities, (i) transfer the
Pledged Securities forming a part of such Securities and (ii) deliver a
certificate or certificates for the full number of shares of Common Stock
issuable upon such Early Settlement together with payment in lieu of any
fraction of a share, as provided in Section 510.
(e) In the event that Early Settlement is effected with
respect to Purchase Contracts underlying less than all the Securities evidenced
by a Security Certificate, upon such Early Settlement the Company shall execute
and the Agent shall authenticate, countersign and deliver to the Holder thereof,
at the expense of the Company, a Security Certificate evidencing the Securities
as to which Early Settlement was not effected.
Section 510. No Fractional Shares. No fractional shares or
scrip representing fractional shares of Common Stock shall be issued or
delivered upon settlement on the Final Settlement Date or upon Early Settlement
of any purchase Contracts. If Security Certificates evidencing more than one
Purchase Contract shall be surrendered for settlement at one time by the same
Holder, the number of full shares of Common Stock which at one time by the same
Holder, the number of full shares of Common Stock which shall be delivered upon
settlement shall be computed on the basis of the aggregate number of Purchase
Contracts evidenced by the Security Certificates so surrendered. Instead of any
fractional share of Common Stock which would otherwise be deliverable upon
settlement of any Purchase Contracts on the Final Settlement Date or upon Early
Settlement, the Company, through the Agent, shall make a cash payment in respect
of such fractional interest in an amount equal to the value of such fractional
shares at the Closing Price per share on the Trading Day immediately preceding
the Final Settlement Date or the related Early Settlement Date, respectively.
The Company shall provide the Agent from time to time with sufficient funds to
permit the Agent to make all cash payments required by this Section 510 in a
timely manner.
Section 511. Charges and Taxes. The Company will pay all stock
transfer and similar taxes attributable to the initial issuance and delivery of
the shares of Common Stock pursuant to the Purchase Contracts;
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provided, however, that the Company shall not be required to pay any such tax or
taxes which may be payable in respect to any exchange of or substitution for a
Security Certificate evidencing a Purchase Contract or any issuance of a share
of Common Stock in a name other than that of the registered Holder of a Security
Certificate surrendered in respect of the Purchase Contracts evidenced thereby,
other than in the name of the Agent, as custodian for such Holder, and the
Company shall not be required to issue or deliver such share certificates or
Security Certificates unless or until the Person or Persons requesting the
transfer or issuance thereof shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company that such tax
has been paid.
ARTICLE SIX
REMEDIES
Section 6.01. Unconditional Right of Holders to Receive
Contract Fee. Notwithstanding any other provision in this Agreement, the Holder
of any Security shall have the right, which is absolute and unconditional
(subject to the right of the Company to defer payment thereof pursuant to
Section 503), to receive payment of each installment of the Contract Fee with
respect to the Purchase Contract constituting a party of such Security on the
respective Payment Date for such Security and to purchase Common Stock pursuant
to such Purchase Contract and, in each such case, to institute suit for the
enforcement of any such payment and right to purchase Common Stock, and such
rights shall not be impaired without the consent of such Holder.
Section 6.02. Restoration of Rights and Remedies. If any
Holder of Securities has instituted any proceeding to enforce any right or
remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determine adversely to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company and such Holder shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of such Holder
shall continue as though no such proceeding had been instituted.
Section 6.03. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement of mutilated, destroyed, lost
or stolen Security Certificate in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Holders of Securities is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.04. Delay or Omission Not Waiver. No delay or
omission of any Holder to exercise any right or remedy shall impair any such
right or remedy or constitute a waiver of any such right. Every right and remedy
given by this Article or by law to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by such Holders.
Section 6.05. Undertaking for Costs. All parties to this
Agreement agree, and each Holder of any Security by his acceptance of the
Security Certificate evidencing such Security shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Agreement, or in any suit against the Agent for
any action taken, suffered or omitted by it as Agent, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
provided that the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Agent, to any suit
instituted by any Holder of Securities, or group of Holders, holding in the
aggregate more than 10% of the Outstanding Securities, or to any suit instituted
by any Holder for the enforcement of the payment of the distributions on any
Pledged Security or the Contract Fee on any Purchase Contract on or after the
respective Payment Date therefor constituting a part of the Securities held by
such Holder, or for enforcement of the right to
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purchase shares of Common Stock under the Purchase Contracts constituting a part
of the Securities held by such Holder.
Section 6.06. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Agreement; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Agent or the Holders, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SEVEN
THE AGENT
Section 7.01. Certain Duties and Responsibilities. (a) The
Agent undertakes to perform, with respect to the Securities, such duties and
only such duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the Agent;
and in the absence of bad faith or negligence on its part, the Agent may, with
respect to the Securities, conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Agent and conforming to the requirements of this
Agreement, but in the case of any certificates or opinions which by any
provision hereof are specifically required to be furnished to the Agent, the
Agent shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to
relieve the Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Agent was negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Agent shall be subject to the provisions of
this Section.
Section 702. Notice of Default. Within 90 days after the
occurrence of any default by the Company hereunder, of which a Responsible
Officer of the Agent has actual knowledge, the Agent shall transmit by mail to
all Holders of Securities, as their names and addresses appear in the Security
Register, notice of such default hereunder, unless such default shall have been
cured or waived.
Section 703. Certain Rights of Agent. Subject to the
provisions of Section 701:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Officer's Certificate, Issuer
Order or Issuer Request, and any resolution of the Board of Directors
of the Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Agent (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officer's Certificate of the
Company;
(d) the Agent may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Agent, in its discretion, may make
reasonable further inquiry or investigation into such facts or matters
related to the issuance of the Securities and the execution, delivery
and performance of the Purchase Contracts as it may see fit, and, if
the Agent shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
promises of the Company, personally or by agent or attorney; and
(f) the Agent may execute any of its powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder.
Section 704. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Security Certificates shall
be taken as the statements of the Company and the Agent assumes no
responsibility for their correctness. The Agent makes no representations as to
the validity or sufficiency of this Agreement or of the Securities. The Agent
shall not be accountable for the use or application by the Company of the
proceeds in respect of the Purchase Contracts.
Section 705. May Hold Securities. Any Security Registrar or
any other agent of the Company, or the Agent, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company with the same rights it would have if it were not Security
Registrar or such other agent, or the Agent.
Section 706. Money Held in Trust. Money held by the Agent in
trust hereunder need not be segregated from the other funds except to the extent
required by law. The Agent shall be under no obligation to invest or pay
interest on any money received by it hereunder except as otherwise agreed with
the Company.
Section 707. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Agent from time to time reasonable
compensation for all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to
reimburse the Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance
with any provision of this Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
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(3) to indemnify the Agent and any predecessor Agent for, and
to hold each of them harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of its duties
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
Section 708. Corporate Agent Required; Eligibility. There
shall at all times be an Agent hereunder which shall be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000, subject to supervision or examination by Federal or State
authority and having its Corporate Trust Office in the Borough of Manhattan, The
City of New York, if there be such a corporation in the Borough of Manhattan,
The City of New York qualified and eligible under this Article and willing to
act on reasonable terms. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 709. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 710.
(b) The Agent may resign at any time by giving written notice
thereof to the Company 60 days prior to the effective date of such resignation.
If the instrument of acceptance by a successor Agent required by Section 710
shall not have been delivered to the Agent within 30 days after the giving of
such notice of resignation, the resigning Agent may petition any court of
competent jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders
of a majority in number of the Outstanding Securities delivered to the Agent and
the Company.
(d) If at any time
(1) the Agent fails to comply with Section 310(b) of the TIA,
as if the Agent were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Agent shall cease to be eligible under Section 708 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
(i) the Company by a Board Resolution may remove the Agent, or (ii) any
Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Agent and the appointment of a successor Agent.
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(e) If the Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Agent and
shall comply with the applicable requirements of Section 710. If no successor
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 710, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor
Agent to give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first class mail, postage prepaid, to all Holders of Securities as their names
and addresses appear in the Security Register. Each notice shall include the
name of the successor Agent and the address of its Corporate Trust Office.
Section 710. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Agent, every such successor
Agent so appointed shall execute, acknowledge and deliver to the Company and to
the retiring Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Agent shall become effective and such
successor Agent, without any further act, deed or conveyance, shall become
vested with all the rights, powers, agencies and duties of the retiring Agent;
but, on the request of the Company or the successor Agent, such retiring Agent
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Agent all the rights, powers and trusts of the
retiring Agent and shall duly assign, transfer and deliver to such successor
Agent all property and money held by such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at
the time of such acceptance such successor Agent shall be qualified and eligible
under this Article.
Section 711. Merger, Consolidation or Succession to Business.
Any corporation into which the Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Agent shall be a party, or any corporation succeeding
to all or substantially all the corporate trust business of the Agent, shall be
the successor of the Agent hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Security Certificates shall have been authenticated and executed on
behalf of the Holders, but not delivered, by the Agent then in office, any
successor by merger, conversion or consolidation to such Agent may adopt such
authentication and execution and deliver the Security Certificates so
authenticated and executed with the same effect as if such successor Agent had
itself authenticated and executed such Securities.
Section 712. Preservation of Information; Communications to
Holders. (a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Agent in its
capacity as Security Registrar.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Agent, and furnish to the Agent reasonable
proof that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Agreement or under the Securities and its accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Agent
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shall, within five Business Days after the receipt of such application, afford
such applicants access to the information preserved at the time by the Agent in
accordance with Section 712(a).
(c) Every Holder of Securities, by receiving and holding the
Security Certificates evidencing the same, agrees with the Company and the Agent
that none of the Company, the Agent nor any agent of any of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 712(b), regardless of
the source from which such information was derived.
Section 713. No Obligations of Agent. Except to the extent
otherwise provided in this Agreement, the Agent assumes no obligations and shall
not be subject to any liability under this Agreement or any Purchase Contract in
respect of the obligations of the Holder of any Security thereunder. The Company
agrees, and each Holder of a Security Certificate, by his acceptance thereof,
shall be deemed to have agreed, that the Agent's execution of the Security
Certificates on behalf of the Holders shall be solely as agent and
attorney-in-fact for the Holders, and that the Agent shall have no obligations
to perform such Purchase Contracts on behalf of the Holders, except to the
extent expressly provided in Article Five hereof.
Section 714. Tax Compliance. (a) The Agent, on its own behalf
and on behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Securities or
(ii) the issuance, delivery, holding, transfer, redemption or exercise of rights
under the Securities. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of all
amounts required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Agent shall comply with any direction received from
the Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 701(a)(2) hereof.
(c) The Agent shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available on request to the Company or to its authorized representative.
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
Section 801. Supplemental Agreements Without Consent of
Holders. Without the consent of any Holders, the Company and the Agent, at any
time and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to the Company and the Agent, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Security Certificates; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(4) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 506(b); or
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(5) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions
herein, or to make any other provisions with respect to such matters or
questions arising under this Agreement, provided such action shall not
adversely affect the interests of the Holders.
Section 802. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of the Outstanding
Securities delivered to the Company and the Agent, the Company when authorized
by a Board Resolution, and the Agent may enter into an agreement or agreements
supplemental hereto for the purpose of modifying in the manner the terms of the
Securities, or the provisions of this Agreement or the rights of the Holders in
respect of the Securities, provided, however, that no such supplemental
agreement shall, without the consent of the Holder of Each Outstanding Security
affected thereby,
(1) change any Payment Date;
(2) change the amount or type of Pledged Securities underlying
a Security, impair the right of the Holder of any Security to receive
distribution payments on the underlying Pledged Securities or otherwise
adversely affect the Holder's rights in or to such Pledged Securities;
(3) reduce any Contract Fee or change any place where, or the
coin or currency in which, any Contract Fee is payable;
(4) impair the right to institute suit for the enforcement of
any Purchase Contract;
(5) reduce the number of shares of Common Stock to be
purchased pursuant to any Purchase Contract, increase the price to
purchase shares of Common Stock upon settlement of any Purchase
Contract, change the Final Settlement Date or otherwise adversely
affect the Holder's rights under any Purchase Contract; or
(6) reduce the percentage of the Outstanding Securities the
consent of whose Holders is required for any such supplemental
agreement.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental agreement,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 803. Execution of Supplemental Agreements. In
executing, or accepting the additional agencies created by, any supplemental
agreement permitted by this Article or the modifications thereby of the agencies
created by this Agreement, the Agent shall be entitled to receive and (subject
to Section 701) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental agreement is authorized or
permitted by this Agreement. The Agent may, but shall not be obligated to, enter
into any such supplemental agreement which affects the Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 804. Effect of Supplemental Agreements. Upon the
execution of any supplemental agreement under this Article, this Agreement shall
be modified in accordance therewith, and such supplemental agreement shall form
a part of this Agreement for all purposes; and every Holder of Security
Certificates theretofore or thereafter authenticated, executed on behalf of the
Holders and delivered hereunder shall be bound thereby.
Section 805. Reference to Supplemental Agreements. Security
Certificates authenticated, executed on behalf of the Holders and delivered
after the execution of any supplemental agreement pursuant to this Article may,
and shall if required by the Agent, bear a notation in form approved by the
Agent as to any matter provided for in such supplemental agreement. If the
Company shall so determine, new Security Certificates so modified as to conform,
in the opinion of the Agent and the Company, to any such supplemental agreement
may be
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prepared and executed by the Company and authenticated, executed on behalf of
the Holders and delivered by the Agent in exchange for Outstanding Security
Certificates.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 901. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions. The Company covenants that it
will not merge or consolidate with any other Person or sell or convey all or
substantially all of its assets to any Person, except that the Company may merge
or consolidate with, or sell or convey all or substantially all of its assets
to, any other Person, provided that (i) the Company shall be the continuing
corporation, or the successor (if other than the Company) shall be a corporation
organized and existing under the laws of the United States of America or a State
thereof and such corporation shall assume the obligations of the Company under
the Purchase Contracts, this Agreement and the Pledge Agreement by one or more
supplemental agreements in form satisfactory to the Agent and the Collateral
Agent, executed and delivered to the Agent and the Collateral Agent by such
corporation, and (ii) the Company or such successor corporation, as the case may
be, shall not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any covenant or condition
hereunder, under any of the Securities or under the Pledge Agreement.
Section 902. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company with the same effect as if it had
been named herein as the Company. Such successor corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of Citadel
Communications Corporation, any or all of the Security Certificates evidencing
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Agent; and, upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Agreement prescribed, the Agent shall authenticate and
execute on behalf of the Holders and deliver any Security Certificates which
previously shall have been signed and delivered by the officers of the Company
to the Agent for authentication and execution, and any Security Certificate
evidencing Securities which such successor corporation thereafter shall cause to
be signed and delivered to the Agent for that purpose. All the Security
Certificates so issued shall in all respects have the same legal rank and
benefit under this Agreement as the Security Certificates theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Security Certificates had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance
such change in phraseology and form (but not in substance) may be made in the
Security Certificates evidencing Securities thereafter to be issued as may be
appropriate.
Section 903. Opinion of Counsel to Agent. The Agent, subject
to Sections 701 and 703, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale or conveyance, and any such
assumption, complies with the provisions of this Article.
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<PAGE> 35
ARTICLE TEN
COVENANTS
Section 1001. Performance Under Purchase Contracts. The
Company covenants and agrees for the benefit of the Holders from time to time of
the Securities that it will duly and punctually perform its obligations under
the Purchase Contracts in accordance with the terms of the Purchase Contracts
and this Agreement.
Section 1002. Maintenance of Office or Agency. The Company
will maintain in the Borough of Manhattan, The City of New York an office or
agency where Security Certificates may be presented or surrendered for
acquisition of shares of Common Stock upon settlement or Early Settlement and
for transfer of Pledged Securities upon occurrence of a Termination Event, where
Security Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Agreement may be served. The Company will give prompt
written notice to the Agent of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Agent with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office, and the Company hereby appoints the
Agent as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where Security Certificates may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, the City of New York for such purposes. The Company
will give prompt written notice to the Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates as the place of payment for the Securities the
Corporate Trust Office and appoints the Agent at its Corporate Trust Office as
paying agent in such city.
Section 1003. Company to Reserve Common Stock. The Company
shall at all times prior to the Final Settlement Date reserve and keep
available, free from preemptive rights, out of its authorized but unissued
Common Stock the full number of shares of Common Stock issuable against tender
of payment in respect of all Purchase Contracts constituting a part of the
Securities evidenced by Outstanding Security Certificates.
Section 1004. Covenants as to Common Stock. The Company
covenants that all shares of Common Stock which may be issued against tender of
payment in respect of any Purchase Contract constituting a part of the
Outstanding Securities will, upon issuance, be duly authorized, validly issued,
fully paid and nonassessable.
Section 1005. Statements of Officers of the Company as to
Default. The Company will deliver to the Agent, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officer's
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions hereof, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
CITADEL COMMUNICATIONS CORPORATION [AGENT] Agent
By: _____________________________ By: _________________________________
Attested by Attested by
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<PAGE> 36
EXHIBIT A
CITADEL COMMUNICATIONS CORPORATION
___% ____________ SECURITIES
(STATED AMOUNT $___ PER SECURITY)
No. Securities
This Security Certificate certifies that is the registered
Holder of the number of Securities set forth above. Each Security represents
ownership by the Holder of ____% United States Pledged Securities due _________
("Pledged Securities") with a principal amount equal to the Stated Amount,
subject to the Pledge of such Pledged Securities by such Holder pursuant to the
Pledge Agreement, and the rights and obligations of the Holder under one
Purchase Contract with Citadel Communications Corporation, a Nevada corporation
(the "Company").
Pursuant to the Pledge Agreement, the Pledged Securities
constituting part of each Security evidenced hereby have been pledged to the
Collateral Agent to secure the obligations of the Holder under the Purchase
Contract constituting part of such Security.
The Pledge Agreement provides that all payments of principal
of, or distributions on, any Pledged Securities constituting part of the
Securities received by the Collateral Agent shall be paid by the Collateral
Agent by wire transfer in same day funds no later than, ______________ time, on
the Business Day such payment is received by the Collateral Agent (provided that
in the event such payment is received by the Collateral Agent on a day that is
not a Business Day or after, ______________ time, on a Business Day, then such
payment shall be made no later than , ______________ time, on the next
succeeding Business Day) (i) in the case of (A) distributions payments and (B)
any principal payments with respect to any Pledged Securities that have been
released from the Pledge pursuant to the Pledge Agreement, to the Agent to the
account designated by it for such purpose and (ii) in the case of principal
payments on any Pledged Securities (as defined in the Pledge Agreement), to the
Company, in full satisfaction of the respective obligations of the Holders of
the Securities of which such Pledged Treasury Securities are a part under the
Purchase Contracts forming a part of such Securities. Distributions on any
Pledged Security forming part of a Security evidenced hereby which is paid on
any or, commencing, 1995 (a "Payment Date"), shall, subject to receipt thereof
by the Agent from the Collateral Agent, be paid to the Person in whose name this
Security Certificate (or a Predecessor Security Certificate) is registered at
the close of business on the Record Date next preceding such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder
of this Security Certificate to purchase, and the Company to sell, on
___________, (the "Final Settlement Date"), at a price equal to $_________ (the
"Stated Amount"), a number of shares of Common Stock, par value $.01 per share
("Common Stock"), of the Company, equal to the Settlement Rate, unless on or
prior to the Final Settlement Date there shall have occurred a Termination Event
or Early Settlement with respect to the Security of which such Purchase Contract
is a part, all as provided in the Purchase Contract Agreement and more fully
described on the reverse hereof. The purchase price for the shares of Common
Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Final Settlement Date by application of payment
received in respect of the principal of the Pledged Securities pledged to secure
the obligations under such Purchase Contract of the Holder of the Security of
which such Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of
each Purchase Contract forming part of a Security evidenced hereby a fee (the
"Contract Fee") equal to ___% per annum of the Stated Amount, from __________,
computed on the basis of the actual number of days elapsed in a year of 365 or
366 days, as the case may be, subject to deferral at the option of the Company
as provided in the Purchase Contract Agreement and more
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<PAGE> 37
fully described on the reverse hereof. Such Contract Fee shall be payable to the
Person in whose name this Security Certificate (or a Predecessor Security
Certificate) is registered at the close of business on the Record Date next
preceding such Payment Date.
Distributions on the Pledged Securities and the Contract Fee
will be payable at the office of the Agent in The City of New York or, at the
option of the Company, by check mailed to the address of the Person entitled
thereto as such address appears on the Security Register.
Reference is hereby made to the further provisions set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Agent by manual signature, this Security Certificate shall not
be entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
CITADEL COMMUNICATIONS CORPORATION
By:
----------------------------------
Attest:
------------------------------
HOLDER SPECIFIED ABOVE (as to obligations of such Holder under
the Purchase Contracts evidenced hereby)
By:
----------------------------------
as Attorney-in-Fact of such Holder
By:
----------------------------------
Dated:
This is one of the Security Certificates referred to in the
within mentioned Purchase Contract Agreement.
_____________________________, as Agent
By:
----------------------------------
Form of Reverse of Security Certificate
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of ____________ (the "Purchase Contract
Agreement"), between the Company and __________, as Agent (herein called the
"Agent"), to which Purchase Contract Agreement and supplemental agreements
thereto reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Agent, the Company, and the Holders and of the terms upon which the Security
Certificates are, and are to be, executed and delivered.
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<PAGE> 38
Each Purchase Contract evidenced hereby obligates the Holder
of this Security Certificate to purchase, and the Company to sell, on the Final
Settlement Date at a price equal to the Stated Amount, a number of shares of
Common Stock of the Company equal to the Settlement Rate, unless, on or prior to
the Final Settlement Date, there shall have occurred a Termination Event or an
Early Settlement with respect to the Security of which such Purchase Contract is
a part. The "Settlement Rate" is equal to (a) if the Applicable Market Value (as
defined below) is greater than $_________ (the "Threshold Appreciation Price"),
of a share of Common Stock per Purchase Contract, (b) if the Applicable Market
Value is less than or equal to the Threshold Appreciation Price but is greater
than the Stated Amount, a fractional share of Common Stock per Purchase Contract
equal to the Stated Amount divided by the Applicable Market Value and (c) if the
Applicable Market Amount is less than or equal to the Stated Amount, one share
of Common Stock per Purchase Contract, in each case subject to adjustment as
provided in the Purchase Contract. No fractional shares of Common Stock will be
issued upon settlement of Purchase Contracts, as provided in the Purchase
Contract Agreement.
The "Applicable Market Value" means the average of the Closing
Prices per share of Common Stock on each of the twenty consecutive Trading Days
ending on the last Trading Day immediately preceding the Final Settlement Date.
The "Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The Nasdaq Stock Market, or, if the Common Stock is not
so reported, the last quoted bid price for the Common Stock in the over-
the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has traded at least once on the national
or regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
The purchase price for the shares of Common Stock purchased
pursuant to each Purchase Contract shall be paid by application of payments
received by the Company on the Final Settlement Date from the Collateral Agent
pursuant to the Pledge Agreement in respect of the principal of the Pledged
Securities Pledged to secure the obligations of the relevant Holder under such
Purchase Contract. The Company shall not be obligated to issue any shares of
Common Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment in full of the
aggregate purchase price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
Subject to the next succeeding paragraph, the Company shall
pay, on each Payment Date, the Contract Fee payable in respect of each Purchase
Contract to the Person in whose name the Security Certificate evidencing such
Purchase Contract is registered at the close of business on the Record Date next
preceding such Payment Date. Contract Fees will be payable at the office of the
Agent in The City of New York or, at the option of the Company, by check mailed
to the address of the Person entitled thereto at such address as it appears on
the Security Register.
The Company shall have the right, at any time prior to the
Final Settlement Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer such payment
(specifying the amount to be deferred) as provided in the Purchase Contract
Agreement. Any Contract Fees so deferred shall bear additional Contract Fees
thereon at the rate of per annum (computed on the basis of the actual number of
days elapsed in a year of 365 or 366 days, as the case may be), compounding on
each succeeding Payment Date, until paid in full. Deferred Contract Fees (and
additional Contract Fees accrued thereon) shall be due on the next succeeding
Payment
A-3
<PAGE> 39
Date except to the extent that payment is deferred pursuant to the Purchase
Contract Agreement. No Contract Fees may be deferred to a date that is after the
Final Settlement Date.
The Purchase Contracts and the obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights of
the Holders to receive and the obligation of the Company to pay any Contract
Fee, shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Agent or the Company, if, on or prior to the
Final Settlement Date, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall give written notice to the
Agent and to the Holders, at their addresses as they appear in the Security
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Pledged Securities from the Pledge. The Securities shall
thereafter represent the right to receive the Pledged Securities forming a part
of such Securities in accordance with the provisions of the Purchase Contract
Agreement and the Pledge Agreement.
Subject to and upon compliance with the provisions of the
Purchase Contract Agreement at the option of the Holder thereof, Purchase
Contracts underlying securities having an aggregate Stated Amount equal to
$_________ or an integral multiple thereof may be settled early ("Early
Settlement") as provided in the Purchase Contract Agreement. In order to
exercise the right to effect Early Settlement with respect to any Purchase
Contracts evidenced by this Security Certificate, the Holder of this Security
Certificate shall deliver this Security Certificate to the Agent at the
Corporate Trust Office duly endorsed for transfer to the Company on in blank
with the form of Election to Settle Early set forth below duly completed and
accompanied by payment in the form of a certified or cashier's check payable to
the order of the Company in immediately available funds in an amount (the "Early
Settlement Amount") equal to (i) the product of (A) the Stated Amount times (B)
the number of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement minus (ii) the aggregate amount of Contract Fees, if
any, otherwise payable on or prior to the immediately preceding Payment Date
deferred at the option of the Company pursuant to the Purchase Contract
Agreement and remaining unpaid as of such immediately preceding Payment Date
plus (iii) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date next preceding
any Payment Date to the opening of business on such Payment Date, an amount
equal to the sum of (x) the Contract Fees payable on such Payment Date with
respect to such Purchase Contracts plus (y) the distributions with respect to
the related Pledged Securities payable on such Payment Date. Upon Early
Settlement of Purchase Contracts by a Holder of the related Securities, the
Pledged Securities underlying such Securities shall be released from the Pledge
as provided in the Pledge Agreement and the Holder shall be entitled to receive,
a number of shares of Common Stock on account of each Purchase Contract forming
part of a Security as to which Early Settlement is effected equal to the Early
Settlement Rate. The Early Settlement Rate shall initially be equal to and shall
be adjusted in the same manner and at the same time as the Settlement Rate is
adjusted as provided in the Purchase Contract Agreement.
The Security Certificates are issuable only in registered form
and only in denominations of a single Security and any integral multiple
thereof. The transfer of any Security Certificate will be registered and
Security Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Security Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents permitted by the
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. For so long as the Purchase Contract underlying
a Security remains in effect, such Security shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Security
in respect of the Pledged Securities and Purchase Contract constituting such
Security may be transferred and exchanged only as a Security.
Upon registration of transfer of this Security Certificate,
the transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced
A-4
<PAGE> 40
by this Security Certificate. The Company covenants and agrees, and the Holder,
by his acceptance hereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
The Holder of this Security Certificate, by his acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Securities evidenced hereby on his behalf as his
attorney-in-fact, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Agent to enter into and perform the Pledged Agreement on his behalf as his
attorney-in-fact, and consents to the Pledge of the Pledged Securities
underlying this Security Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of principal of the Pledged
Securities on the Final Settlement Date shall be paid by the Collateral Agent to
the Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of at least a
majority of the Outstanding Securities.
All terms used herein which are defined in the Purchase
Contract Agreement have the meanings set forth therein.
The Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
The Company, the Agent and any agent of the Company or the
Agent may treat the Person in whose name this Security Certificate is registered
as the owner of the Securities evidenced hereby for the purpose of receiving
payments of distributions on the Pledged Securities, receiving payments of
Contract Fees, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the Agent
nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of Common
Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon settlement on or after the Final Settlement
Date of the Purchase Contracts underlying the number of Securities evidenced by
this Security Certificate be registered in the name of, and delivered, together
with a check in payment for any fractional share, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated:
Signature
If shares are to be registered in the name of and delivered to
REGISTERED HOLDER a Person other than the Holder, please print such Person's
name and address: Please print name and address of Registered Holder:
A-5
<PAGE> 41
Name
Address
Social Security or other Taxpayer Identification Number, if
any
ELECTION TO SETTLE EARLY
The undersigned Holder of this Security Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Securities evidenced by this Security
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Securities with an
aggregate Stated Amount equal to $__________ or an integral multiple thereof.
The undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Security Certificate representing any Securities evidenced hereby as to which
Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Securities deliverable upon such Early
Settlement will be transferred in accordance with the transfer instructions set
forth below. If shares are to be registered in the name of a Person other than
the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated:
Signature
Number of Securities evidenced hereby as to which Early
Settlement of the related Purchase Contracts is being elected:
REGISTERED HOLDER
If shares or Security Certificates are to be registered in the
name of and delivered to and Pledged Securities are to be transferred to a
Person other than the Holder, please print such Person's name and address:
Please print name and address of Registered Holder:
Name
Address
Social Security or other Taxpayer Identification Number, if
any
A-6
<PAGE> 42
EXHIBIT B
FORM OF
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of , 1999 (this "Agreement"), among
Citadel Communications Corporation, a Nevada corporation (the "Company"),
_________________, as collateral agent (in such capacity, together with its
successors in such capacity, the "Collateral Agent"), and
[_______________________], as purchase contract agent and as attorney-in-fact of
the Holders (as hereinafter defined) from time to time of the Securities (as
hereinafter defined) (in such capacity, together with its successors in such
capacity, the "Purchase Contract Agent") under the Purchase Contract Agreement
(as hereinafter defined).
RECITALS
A. The Company and the Purchase Contract Agent are parties to
the Purchase Contract Agreement, dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "Purchase Contract
Agreement"), pursuant to which there will be issued ___%
__________________________ Securities (the "Securities").
B. Each Security consists of (a) one Purchase Contract (as
hereinafter defined) and (b) ___% ________ due ___________ ("Collateral
Securities") having a principal amount of liquidation preference equal to
$________ (the "Stated Amount") and maturing on ________________ (the "Final
Settlement Date"), subject to the pledge of such Collateral Securities created
hereby.
C. Pursuant to the terms of the Purchase Contract Agreement
and the Purchase Contracts, the Holders (as defined in the Purchase Contract
Agreement) from time to time of the Securities have irrevocably authorized the
Purchase Contract Agent, as attorney-in-fact of such Holders, among other things
to execute and deliver this Agreement on behalf of such Holders and to grant the
pledge provided hereby of the Collateral Securities constituting part of such
Securities as provided herein and subject to the terms hereof.
D. Accordingly, the Company, the Collateral Agent and the
Purchase Contract Agent, on its own behalf and as attorney-in-fact of the
Holders from time to time of the Securities, agree as follows:
Section 1. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
1. the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular; and
2. the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Act" has the meaning specified in the Purchase Contract
Agreement.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
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<PAGE> 43
["Applicable Treasury Regulations" means Subpart 0-Book-Entry
Procedures of Title 31 of the Code of Federal Regulations (31 CFR (S) 306.115
et. seq.) and any other regulations of the United States Treasury Department
from time to time applicable to the transfer or pledge of book entry U.S.
Treasury Securities.]
"Board Resolution" has the meaning specified in the Purchase
Contract Agreement.
"Business Day" means any day that is not a Saturday, a Sunday
or a day on which the New York Stock Exchange or banking institutions or trust
companies in The City of New York are authorized or obligated by law or
executive order to be closed.
"Collateral Agent" has the meaning specified in the first
paragraph of this instrument.
"Collateral Securities" has the meaning specified in the
Recitals.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Early Settlement" has the meaning specified in the Purchase
Contract Agreement.
"Early Settlement Amount" has the meaning specified in the
Purchase Contract Agreement.
"Final Settlement Date" has the meaning specified in the
Recitals.
"Holder" when used with respect to a Security, or a Purchase
Contract constituting a part thereof, has the meaning specified in the Purchase
Contract Agreement.
"Opinion of Counsel" has the meaning specified in the Purchase
Contract Agreement.
"Outstanding Securities" has the meaning specified in the
Purchase Contract Agreement.
"Outstanding Security Certificates" has the meaning specified
in the Purchase Contract Agreement.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" has the meaning specified in Section 2 hereof.
"Pledged Collateral Securities" has the meaning specified in
Section 2 hereof.
"Purchase Contract" has the meaning specified in the Purchase
Contract Agreement.
"Purchase Contract Agent" has the meaning specified in the
first paragraph of this instrument.
"Security" has the meaning specified in the Recitals.
"Security Certificate" has the meaning specified in the
Purchase Contract Agreement.
"Stated Amount" has the meaning specified in the Recitals.
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<PAGE> 44
"Termination Event" has the meaning specified in the Purchase
Contract Agreement.
Section 2. The Pledge. The Holders from time to time of the
Securities acting through the Purchase Contract Agent, as their
attorney-in-fact, hereby pledge and grant to the Collateral Agent, as collateral
security for the performance when due by such Holders of their respective
obligations under the Purchase Contracts constituting part of such Securities,
for the benefit of the Company, a security interest in all of the right, title
and interest of such Holders in the Collateral Securities constituting a part of
such Securities. Prior to or concurrently with the execution and delivery of
this Agreement, the initial Holders and the Collateral Agent shall (i) cause the
Collateral Securities to be delivered to the Collateral Agent by Federal Reserve
Bank-Wire or by book-entry transfer through the facilities of the Depositary
Trust Company, as the case may be, to the account of the Collateral Agent
designated by it for such purpose and (ii) take appropriate action so that the
applicable Federal Reserve Bank through which such Collateral Securities have
been purchased will reflect such transfer and the Pledge by appropriate entries
in its records in accordance with Applicable Treasury Regulations. In addition,
the execution and delivery hereof by the Purchase Contract Agent and the
Collateral Agent shall constitute (i) the notification to the Collateral Agent
(as bailee or otherwise) of the Pledge and (ii) an acknowledgment by the
Collateral Agent (as third party in possession or otherwise) of the Pledge and
of its holding of such Collateral Securities subject to the Pledge, in each
case, for purposes of perfecting the Pledge under Applicable Treasury
Regulations and other applicable law, as the case may be, including, to the
extent applicable, the Uniform Commercial Code as adopted and in effect in any
applicable jurisdiction. The pledge provided in this Section 2 is herein
referred to as the "Pledge" and the Collateral Securities subject to the Pledge,
excluding any Collateral Securities released from the Pledge as provided in
Section 4 hereof, are hereinafter referred to as the "Pledged Collateral
Securities." Subject to the Pledge, the Holders from time to time of the
Securities shall have full beneficial ownership of the Collateral Securities
constituting a part of such Securities.
Section 3. Payments of Principal, Redemption Price and
Distributions. (a) All payments of principal or redemption price of, or
distributions on, any Collateral Securities constituting part of the Securities
received by the Collateral Agent shall be paid by the Collateral Agent by wire
transfer in same day funds no later than 2:00 p.m., New York City time, on the
Business Day such payment is received by the Collateral Agent (provided that in
the event such interest payment is received by the Collateral Agent on a day
that is not a Business Day or after 2:00 p.m., New York City time, on a Business
Day, then such payment shall be made no later than 9:00 a.m., New York City
time, on the next succeeding Business Day) (i) in the case of (A) distributions
with respect to any Collateral Securities and (B) any principal or redemption
payments with respect to any Collateral Securities that have been released from
the Pledge pursuant to Section 4 hereof, to the Purchase Contract Agent to the
account designated by it for such purpose and (ii) in the case of principal or
redemption payments on any Pledged Collateral Securities, to the Company, in
full satisfaction of the respective obligations of the Holders of the Securities
of which such Pledged Collateral Securities are a part under the Purchase
Contracts forming a part of such Securities. All such payments received by the
Purchase Contract Agent as provided herein shall be applied by the Purchase
Contract Agent pursuant to the provisions of the Purchase Contract Agreement.
If, notwithstanding the foregoing, the Purchase Contract Agent shall receive any
payments of principal or in respect of redemption on account of any Pledged
Collateral Securities, the Purchase Contract Agent shall hold the same as
trustee of an express trust for the benefit of the Company (and promptly deliver
over to the Company) for application to the obligations of the Holders of the
Securities of which such Collateral Securities are a part under the Purchase
Contracts relating to the Securities of which such Collateral Securities are a
part, and such Holders shall acquire no right, title or interest in any such
payments of principal or in respect of redemption so received.
Section 4. Release of Pledged Collateral Securities. (a) Upon
notice to the Collateral Agent by the Company or the Purchase Contract Agent
that there has occurred a Termination Event, the Collateral Agent shall release
all Pledged Collateral Securities from the Pledge and shall transfer all such
Collateral Securities, free and clear of any lien, pledge or security interest
created hereby, to the Purchase Contract Agent.
B-3
<PAGE> 45
(b) Upon notice to the Collateral Agent by the Purchase
Contract Agent that one or more Holders of Securities have elected to effect
Early Settlement of their respective obligations under the Purchase Contracts
forming a part of such Securities in accordance with the terms of the Purchase
Contracts and the Purchase Contract Agreement, and that the Purchase Contract
Agent has received from such Holders, and paid to the Company, the related Early
Settlement Amounts pursuant to the terms of the Purchase Contracts and the
Purchase Contract Agreement and that all conditions to such Early Settlement
have been satisfied, then the Collateral Agent shall release from the Pledge
Pledged Collateral Securities with a principal amount or liquidation preference
equal to the product of (i) the Stated Amount times (ii) the number of such
Purchase Contracts as to which such Holders have elected to effect Early
Settlement.
(c) Transfers of Collateral Securities pursuant to Section
4(a) or (b) shall be by Federal Reserve Bank-Wire, book-entry transfer through
the facilities of the Depository Trust Company or in another appropriate manner,
(i) if the Collateral Agent shall have received such notification at or prior to
1:00 p.m., New York City time, on a Business Day, then no later than 2:00 p.m.,
New York City time, on such Business Day and (ii) if the Collateral Agent shall
have received such notification on a day that is not a Business Day or after
1:00 p.m., New York City time, on a Business Day, then no later than 9:00 a.m.,
New York City time, on the next succeeding Business Day.
Section 5. Rights and Remedies. (a) The Collateral Agent shall
have all of the rights and remedies with respect to the Pledged Collateral
Securities of a secured party under the Uniform Commercial Code as in effect in
the State of New York (the "Code") (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted.
(b) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, in the event the Collateral Agent is
unable to make payments to the Company on account of principal payments of, or
in respect of the redemption of, any Pledged Collateral Securities as provided
in Section 3 hereof in satisfaction of the obligations of the Holder of the
Securities of which such Pledged Collateral Securities are a part under the
Purchase Contracts forming a part of such Securities, the Collateral Agent shall
have and may exercise, with reference to such Pledged Collateral Securities and
such obligation of such Holder, any and all of the rights and remedies available
to a secured party under the Code after default by a debtor, and as otherwise
granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, the Collateral Agent is hereby
irrevocably authorized to receive and collect all payments of principal of, in
respect of redemptions of or distributions on the Pledged Collateral Securities.
(d) The Purchase Contract Agent agrees that, from time to
time, upon the written request of the Collateral Agent, the Purchase Contract
Agent shall execute and deliver such further documents and so such other acts
and things as the Collateral Agent may reasonably request in order to maintain
the Pledge, and the perfection and priority thereof, and to confirm the rights
of the Collateral Agent hereunder.
Section 6. The Collateral Agent. The Collateral Agent and the
Company hereby agree between themselves as follows (it being understood and
agreed that neither the Purchase Contract Agent nor any Holder of Securities
shall have any rights under this Section 6):
6.01. Appointment, Powers and Immunities. The Collateral Agent
shall act as agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The
Collateral Agent: (a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants or obligations
shall be inferred from this Agreement against the Collateral Agent, nor shall
the Collateral Agent be
B-4
<PAGE> 46
bound by the provisions of any agreement by any party hereto beyond the specific
terms hereof; (b) shall not be responsible to the Company for any recitals
contained in this Agreement, or in any certificate or other document referred to
or provided for in, or received by it under, this Agreement, the Securities or
the Purchase Contract Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other than as
against the Collateral Agent), the Securities or the Purchase Contract Agreement
or any other document referred to or provided for herein or therein or for any
failure by the Company or any other Person (except the Collateral Agent) to
perform any of its obligations hereunder or thereunder; (c) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under Section 6.02 hereof);
(d) shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other document or instrument referred to or provided for
herein or in connection herewith or therewith, except for its own negligence;
and (c) shall not be required to advise any party as to selling or retaining, or
taking or refraining from taking any action with respect to, any securities or
other property deposited hereunder. Subject to the foregoing, during the terms
of this Agreement the Collateral Agent shall take all reasonable action in
connection with the safekeeping and preservation of the Pledged Collateral
Securities hereunder.
No provisions of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder. In no event shall the
Collateral Agent be liable for any amount in excess of the value of the Pledged
Collateral Securities.
6.02. Instructions of the Company. The Company shall have the
right, by one or more instruments in writing executed and delivered to the
Collateral Agent, to direct the time, method and place of conducting any
proceeding for any right or remedy available to the Collateral Agent, or of
exercising any power conferred on the Collateral Agent, or to direct the taking
or refraining from taking of any action authorized by this Agreement; provided,
however, that (i) such direction shall not conflict with the provisions of any
law or of this Agreement and (ii) the Collateral Agent shall be adequately
indemnified as provided herein. Nothing in this Section 6.02 shall impair the
right of the Collateral Agent in its discretion to take any action or omit to
take any action which it deems proper and which is not inconsistent with such
direction.
6.03. Reliance by Collateral Agent. The Collateral Agent shall
be entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy telex, telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated
therein), and upon advice and statements of legal counsel and other experts
selected by the Collateral Agent. As to any matters not expressly provided for
by this Agreement, the Collateral Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder in accordance with instructions
given by the Company in accordance with this Agreement.
6.04. Rights in Other Capacities. The Collateral Agent and its
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Purchase Collateral Agent, and
the Collateral Agent and its affiliates may accept fees and other consideration
from the Purchase Contract agent and any Holder or Securities without having to
account for the same to the Company, provided that the Collateral Agent
covenants and agrees with the Company that the Collateral Agent shall not
accept, receive or permit there to be created in its favor any security
interest, lien or other encumbrance of any kind in or upon the Pledged
Collateral Securities.
6.05. Non-Reliance on Collateral Agent. The Collateral Agent
shall not be required to keep itself informed as to the performance or
observance by the Purchase Contract Agent or any Holder of Securities of this
Agreement, the Purchase Contract Agreement, the Securities or any other document
referred to or provided for herein or therein or to inspect the properties or
books of the Purchase Contract Agent or any Holder of Securities. The Collateral
Agent shall not have any duty or responsibility to provide the Company with any
credit or other information concerning the affairs, financial condition or
business of the Purchase Contract Agent or any Holder of
B-5
<PAGE> 47
Securities (or any of their affiliates) that may come into the possession of the
Collateral Agent or any of its affiliates.
6.06. Compensation and Indemnity. The Company agrees: (i) to
pay the Collateral Agent from time to time reasonable compensation for all
services rendered by it hereunder and (ii) to indemnify the Collateral Agent
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of its powers and duties under this
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of such powers
and duties.
6.07. Failure to Act. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims by or
among the undersigned and/or any other person or entity with respect to any
funds or property deposited hereunder, the Collateral Agent shall be entitled,
at its sole option, to refuse to comply with any and all claims, demands or
instructions with respect to such property or funds so long as such dispute or
conflict shall continue, and the Collateral Agent shall not be or become liable
in any way to any of the undersigned for its failure or refusal to comply with
such conflicting claims, demands or instructions. The Collateral Agent shall be
entitled to refuse to act until either (i) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing, satisfactory to the Collateral Agent or (ii) the Collateral Agent shall
have received security or an indemnity satisfactory to the Collateral Agent
sufficient to save the Collateral Agent harmless from and against any and all
loss, liability or expense which the Collateral Agent may incur by reason of its
acting. The Collateral Agent may in addition elect to commence an interpleader
action or seek other judicial relief or orders as the Collateral Agent may deem
necessary. Notwithstanding anything contained herein to the contrary, the
Collateral Agent shall not be required to take any action that is in its opinion
contrary to law or to the terms of this Agreement, or which would in its opinion
subject it or any of its officers, employees or directors to liability.
6.08. Resignation of Collateral Agent. Subject to the
appointment and acceptance of a successor Collateral Agent as provided below,
(a) the Collateral Agent may resign at any time by giving notice thereof to the
Company and the Purchase Contract Agent, (b) the Collateral Agent may be removed
at any time by the Company and (c) if the Collateral Agent fails to perform any
of its material obligations hereunder in any material respect for a period of
not less than 20 days after receiving notice of such failure by the Purchase
Contract Agent and such failure shall be continuing, the Collateral Agent may be
removed by the Purchase Contract Agent. The Purchase Contract Agent shall
promptly notify the Company of any removal of the Collateral Agent pursuant to
clause (c) of the immediately preceding sentence. Upon any such resignation or
removal, the Company shall have the right to appoint a successor Collateral
Agent. If no successor Collateral Agent shall have been so appointed and shall
have accepted such appointment within 30 days after the retiring Collateral
Agent's giving of notice of resignation or such removal, then the retiring
Collateral Agent may petition any court of competent jurisdiction for the
appointment of a successor Collateral Agent. The Collateral Agent shall be a
bank which has an office in New York, New York with a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as
Collateral Agent hereunder by a successor Collateral Agent, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Collateral Agent, and the
retiring Collateral Agent shall take all appropriate action to transfer any
money and property held by it hereunder (including the Pledged Collateral
Securities) to such successor Collateral Agent. The retiring Collateral Agent
shall, upon such succession, be discharged from its duties and obligations as
Collateral Agent hereunder. After any retiring Collateral Agent's resignation
hereunder as Collateral Agent, the provisions of this Section 6 shall continue
in effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as the Collateral Agent.
Promptly following the removal or resignation of the
Collateral Agent the Company shall give written notice thereof to Moody's
Investors Services, Inc.
B-6
<PAGE> 48
6.09. Right to Appoint Agent or Advisor. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any of its
duties hereunder, and the Collateral Agent shall not be liable for any action
taken or omitted by such agents or advisors selected in good faith.
The provisions of this Section 6 shall survive termination of
this Agreement and the resignation or removal of the Collateral Agent.
Section 7. Amendment.
7.01. Amendment Without Consent of Holders. Without the
consent of any Holders, the Company, the Collateral Agent and the Purchase
Contract Agent, at any time and from time to time, may amend this Agreement in
form satisfactory to the Company, the Collateral Agent and the Purchase Contract
Agent, for any of the following purposes:
1. to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company; or
2. to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
3. to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent or Purchase Contract Agent;
or
4. to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other such
provisions herein, or to make any other provisions with respect to such
matters or questions arising under this Agreement, provided such action
shall not adversely affect the interests of the Holders.
7.02. Amendment with Consent of Holders. With the consent of
the Holders of not less than 66 2/3% of the Outstanding Securities, by Act of
said Holders delivered to the Company, the agent and the Collateral Agent, the
Company, when authorized by the Board Resolution, the Agent and the Collateral
Agent may amend this Agreement for the purpose of modifying in any manner the
provisions of this Agreement or the rights of the holders in respect of the
Securities; provided, however, that no such supplemental agreement shall,
without the consent of the Holder of each Outstanding Security affected thereby,
1. change the amount or type of Collateral Securities
underlying a Security, impair the right of the Holder of any Security to receive
distributions on the underlying Collateral Securities or otherwise adversely
affect the Holder's rights in or to such Collateral Securities; or
2. otherwise effect any action that would require the consent
of the Holder of each Outstanding Security affected thereby pursuant to the
Purchase Contract Agreement if such action were effected by an agreement
supplemental thereto; or
3. reduce the percentage of Outstanding Securities the consent
of whose Holders is required for any such amendment.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such act shall approve the substance thereof.
7.03. Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent and the Purchase Contract Agent
shall be entitled to receive and (subject to Section 6.01 hereof,
B-7
<PAGE> 49
with respect to the Collateral Agent, and Section 701 of the Purchase Contract
Agreement, with respect to the Purchase Contract Agent) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement.
7.04. Effect of Amendments. Upon the execution of any
amendment under this Section, this Agreement shall be modified in accordance
therewith, and such amendment shall form a part of this Agreement for all
purposes; and every Holder of Security Certificates theretofore or thereafter
authenticated, executed on behalf of the Holders and delivered under the
Purchase Contract Agreement shall be bound thereby.
7.05. Reference to Amendments. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this Section may, and shall if required
by the Collateral Agent or the Purchase Contract Agent, bear a notation in form
approved by the Purchase Contract Agent and the Collateral Agent as to any
matter provided for in such amendment. If the Company shall so determine, new
Security Certificates so modified as to conform, in the opinion of the
Collateral Agent, the Purchase Contract Agent and the Company, to any such
amendment may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Purchase Contract Agent
in accordance with the Purchase Contract Agreement in exchange for Outstanding
Security Certificates.
Section 8. Miscellaneous.
8.01. No Waiver. No failure on the part of the Collateral
Agent or any of its agents to exercise, and no course of dealing with respect
to, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise by the
Collateral Agent or any of its agents of any right, power or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies herein are cumulative and are not exclusive
of any remedies provided by law.
8.02. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company, the
Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, hereby submit to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York state court sitting in New
York City for the purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. The Company, the
Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, irrevocably
waive, to the fullest extent permitted by applicable law, any objection which
they may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
8.03. Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) and delivered to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof or, as to any party, at such other address as shall
be designated by such party in a notice to the other parties. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
8.04. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent and the Purchase Contract Agent, and the Holders
from time to time of the Securities, by their acceptance of the same, shall be
deemed to have agreed to be bound by the provisions hereof and to have ratified
the agreements of, and the grant of the Pledge hereunder by, the Purchase
Contract Agent.
B-8
<PAGE> 50
8.05. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart.
8.06. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted bylaw,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
8.07. Expenses, etc. The Company agrees to reimburse the
Collateral Agent for: (a) all reasonable out-of-pocket costs and expenses of the
Collateral Agent (including, without limitation, the reasonable fees and
expenses of counsel to the Collateral Agent), in connection with (i) the
negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the terms of
this Agreement; (b) all reasonable costs and expenses of the Collateral Agent
(including, without limitation, reasonable fees and expenses of counsel) in
connection with (i) any enforcement or proceedings resulting or incurred in
connection with causing any Holder of Securities to satisfy its obligations
under the Purchase Contracts forming a part of the Securities and (ii) the
enforcement of this Section 8.07; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any other document referred to
herein and all costs, expenses, taxes, assessments and other charges incurred in
connection with any filing, registration, recording or perfection of any
security interest contemplated hereby.
8.08. Security Interest Absolute. All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders from
time to time of the Securities hereunder, shall be absolute and unconditional
irrespective of:
1. any lack of validity or enforceability of any
provision of the Purchase Contracts or the Securities
or any other agreement or instrument relating
thereto;
2. any change in the time, manner or place of payment
of, or any other term of, or any increase in the
amount of, all or any of the obligations of Holders
of Securities under the related Purchase Contracts,
or any other amendment or waiver of any term of, of
any consent to any departure from any requirement of,
the Purchase Contract Agreement or any Purchase
Contract or any other agreement or instrument
relating thereto; or
3. any other circumstance which might otherwise
constitute a defense available to, or discharge of, a
borrower, a guarantor or a pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
CITADEL COMMUNICATIONS CORPORATION
By:
---------------------------------
Name:
Title:
B-9
<PAGE> 51
Address for Notices:
Citadel Communications Corporation
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
(702) 804-5200
[ ]
as Purchase Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Securities
By:
---------------------------------
Name:
Title:
Address for Notices:
[ ]
as Collateral Agent
By:
---------------------------------
Name:
Title:
B-10
<PAGE> 1
Exhibit 4.24
================================================================================
GUARANTEE AGREEMENT
by and between
Citadel Communications Corporation
as Guarantor
and
The Bank of New York,
as Guarantee Trustee
relating to
CCC Capital Trust [I/II]
---------------------------
Dated as of [ ]
---------------------------
================================================================================
<PAGE> 2
CROSS REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
<S> <C>
310(a).................................................................................. 4.1(a)
310(b).................................................................................. 4.1(c), 2.8
310(c).................................................................................. Inapplicable
311(a).................................................................................. 2.2(b)
311(b).................................................................................. 2.2(b)
311(c).................................................................................. Inapplicable
312(a).................................................................................. 2.2(a)
312(b).................................................................................. 2.2(b)
313..................................................................................... 2.3
314(a).................................................................................. 2.4
314(b).................................................................................. Inapplicable
314(c).................................................................................. 2.5
314(d).................................................................................. Inapplicable
314(e).................................................................................. 1.1, 2.5, 3.2
314(f).................................................................................. 2.1, 3.2
315(a).................................................................................. 3.1(d)
315(b).................................................................................. 2.7
315(c).................................................................................. 3.1
315(d).................................................................................. 3.1(d)
316(a).................................................................................. 1.1, 2.6, 5.4
316(b).................................................................................. 5.3
316(c).................................................................................. 8.2
317(a).................................................................................. Inapplicable
317(b).................................................................................. Inapplicable
318(a).................................................................................. 2.1
318(b).................................................................................. 2.1
318(c).................................................................................. 2.1
</TABLE>
- --------------------
* This Cross Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms
or provisions.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions............................................................................6
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.......................................................8
SECTION 2.2. List of Holders........................................................................9
SECTION 2.3. Reports by the Guarantee Trustee.......................................................9
SECTION 2.4. Periodic Reports to the Guarantee Trustee..............................................9
SECTION 2.5. Evidence of Compliance with Conditions Precedent.......................................9
SECTION 2.6. Events of Default; Waiver..............................................................9
SECTION 2.7. Event of Default; Notice..............................................................10
SECTION 2.8. Conflicting Interests.................................................................10
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee............................................10
SECTION 3.2. Certain Rights of Guarantee Trustee...................................................11
SECTION 3.3. Compensation; Indemnity; Fees.........................................................12
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility........................................................13
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.........................13
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.............................................................................14
SECTION 5.2. Waiver of Notice and Demand...........................................................14
SECTION 5.3. Obligations Not Affected..............................................................15
SECTION 5.4. Rights of Holders.....................................................................15
SECTION 5.5. Guarantee of Payment..................................................................15
SECTION 5.6. Subrogation...........................................................................15
SECTION 5.7. Independent Obligations...............................................................16
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.........................................................................16
SECTION 6.2. Pari Passu Guarantees.................................................................16
ARTICLE VII
TERMINATION
SECTION 7.1. Termination...........................................................................16
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns................................................................17
SECTION 8.2. Amendments............................................................................17
SECTION 8.3. Notices...............................................................................17
SECTION 8.4. Benefit...............................................................................18
SECTION 8.5. Governing Law.........................................................................18
SECTION 8.6. Counterparts..........................................................................18
</TABLE>
ii
<PAGE> 5
GUARANTEE AGREEMENT, dated as of _______], between Citadel
Communications Corporation, a Nevada corporation (the "Guarantor"), having its
principal office at City Carter West, Suite 400, 7201 West Lake Mead Boulevard,
Las Vegas, Nevada 89128, and THE BANK OF NEW YORK, a New York banking
corporation, as trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of CCC CapitalTrust [ I/II], a Delaware statutory business trust
(the "Issuer Trust").
RECITALS OF THE CORPORATION
WHEREAS, pursuant to an Amended and Restated Declaration of Trust,
dated as of [ ], 1999 (the "Declaration of Trust"), among Citadel Communications
Corporation, as Depositor, the Property Trustee and the Delaware Trustee named
therein and the holders from time to time of undivided beneficial interests in
the assets of the Issuer Trust, the Issuer Trust is issuing $___________
aggregate Liquidation Amount (as defined in the Declaration of Trust) of its [
]% Preferred Securities, Series A (liquidation amount $25 per capital security)
(the "Preferred Securities"), representing preferred undivided beneficial
interests in the assets of the Issuer Trust and having the terms set forth in
the Declaration of Trust; and
WHEREAS, the Preferred Securities will be issued by the Issuer Trust
and the proceeds thereof, together with the proceeds from the issuance of the
Issuer Trust's Common Securities (as defined herein), will be used to purchase
the Debentures (as defined in the Declaration of Trust) of the Guarantor, which
Debentures will be deposited with The Bank of New York, as Property Trustee
under the Declaration of Trust, as trust assets; and
WHEREAS, as an incentive for the Holders to purchase Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, as
described herein, to pay to the Holders of the Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of Preferred
Securities by each Holder, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
For all purposes of this Guarantee Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States
generally accepted accounting principles;
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(e) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Guarantee Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and
other words of similar import refer to this Guarantee
Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means the board of directors of the Guarantor or
the Executive Committee of the board of directors of the Guarantor (or any other
committee of the board of directors of the Guarantor performing similar
functions) or a committee designated by the board of directors of the Guarantor
(or such committee), comprised of two or more members of the board of directors
of the Guarantor or officers of the Guarantor, or both.
"Preferred Securities" has the meaning specified in the recitals to
this Guarantee Agreement.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer Trust.
"Event of Default" means (i) a default by the Guarantor in any of its
payment obligations under this Guarantee Agreement or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of the Issuer Trust: any accumulated and unpaid
Distributions (as defined in the Declaration of Trust) required to be paid on
the Preferred Securities, to the extent the Issuer Trust shall have funds on
hand available therefor at such time; the Redemption Price (as defined in the
Declaration of Trust) with respect to any Preferred Securities called for
redemption by the Issuer Trust, to the extent the Issuer Trust shall have funds
on hand available therefor at such time; and (iii) upon a voluntary or
involuntary termination, winding-up or liquidation of the Issuer Trust, unless
Debentures are distributed to the Holders, the lesser of (a) the Liquidation
Distribution (as defined in the Declaration of Trust) with respect to the
Preferred Securities, to the extent that the Issuer Trust shall have funds on
hand available therefor at such time and (b) the amount of assets of the Issuer
Trust remaining available for distribution to Holders on liquidation of the
Issuer after satisfaction of liabilities to creditors of the Trust as required
by applicable law.
"Guarantee Trustee" means The Bank of New York, solely in its capacity
as Guarantee Trustee and not in its individual capacity, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement, and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"Holder" means any Holder (as defined in the Declaration of Trust) of
any Preferred Securities; provided, however, that in determining whether the
holders of the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
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"Indenture" means the Junior Subordinated Indenture, dated as of
________, between Citadel Communications Corporation and The Bank of New York,
as trustee, as the same may be modified, amended or supplemented from time to
time or the Junior Subordinated Indenture, dated as of ________, between Citadel
Broadcasting Company and The Bank of New York, as trustee, as the same may be
modified, amended or supplemented from time to time, as the case may be.
"Issuer Trust" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, Preferred Securities representing
more than 50% of the aggregate Liquidation Amount (as defined in the Declaration
of Trust) of all Preferred Securities then Outstanding (as defined in the
Declaration of Trust).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman or a Vice Chairman of the Board of Directors
of such Person or the Chief Executive Officer, President or a Vice President of
such Person, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Guarantor, and delivered to the Guarantee Trustee.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the
Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, company,
limited liability company, trust, business trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or
Assistant Trust Officer or any officer assigned to the Corporate Trust Office,
including any vice president, assistant vice president, assistant treasurer or
assistant secretary of the Guarantee Trustee and also means, with respect to a
particular matter, any other officer to whom such matter is referred because of
that officer's knowledge of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Declaration of Trust" means the Amended and Restated Declaration of
Trust of the Issuer Trust referred to in the recitals to this Guarantee
Agreement, as modified, amended or supplemented from time to time.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Guarantee Agreement was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Corporation, means any
duly appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president."
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c) thereof,
such imposed duties shall control. If any provision of this
Guarantee Agreement modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Guarantee
Agreement as so modified or to be excluded, as the case may
be.
SECTION 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, on or before June 30 and
December 31 of each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and
addresses of the Holders (a "List of Holders") as of a date
not more than 15 days prior to the delivery thereof, and (b)
at such other times as the Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor of
any such request, a List of Holders as of a date not more than
15 days prior to the time such list is furnished, in each case
to the extent such information is in the possession or control
of the Guarantor and has not otherwise been received by the
Guarantee Trustee in its capacity as such. The Guarantee
Trustee may destroy any List of Holders previously given to it
on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the requirements of
Section 311(a), Section 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than [May 15] of each year, commencing [__________], the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
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SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities
and Exchange Commission and the Holders such documents, reports and information,
if any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
If the Guarantee Trustee is also acting as the Property Trustee under the
Declaration of Trust or the Indenture Trustee under the Indenture, then such
reports will not be required hereunder.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Corporation's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given
in the form of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, by vote, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist, and
any default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default actually known to a
Responsible Officer of the Guarantee Trustee, transmit by
mail, first class postage prepaid, to the Holders, notice of
any such Event of Default, unless such Event of Default has
been cured before the giving of such notice, provided that,
except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in
withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee
in good faith determines that the withholding of such notice
is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Guarantee Trustee shall have
received written notice, or a Responsible Officer charged with
the administration of this Guarantee Agreement shall have
obtained actual knowledge, of such Event of Default.
SECTION 2.8. Conflicting Interests.
The Declaration of Trust and the Indenture shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee
Trustee shall not transfer this Guarantee Agreement to any
Person except to a Successor Guarantee Trustee on acceptance
by such Successor Guarantee Trustee of its appointment to act
as Guarantee Trustee hereunder. The right, title and interest
of the Guarantee Trustee, as such, hereunder shall
automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its
appointment hereunder, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of
such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for
the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may
have occurred, shall undertake to perform only such duties as
are specifically set forth in this Guarantee Agreement, and no
implied covenants shall be read into this Guarantee Agreement
against the Guarantee Trustee. If an Event of Default has
occurred (that has not been cured or waived pursuant to
Section 2.6), the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee Agreement,
and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use in the
conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act or its own
wilful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the
express provisions of this Guarantee
Agreement (including pursuant to Section
2.1), and the Guarantee Trustee shall not be
liable except for the performance of such
duties and obligations as are specifically
set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of
the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of
the statements and the correctness of the
opinions expressed therein, upon any
certificates or opinions furnished to the
Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement;
but in the case of any such certificates or
opinions that by any provision hereof or of
the Trust Indenture Act are specifically
required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be
under a duty to examine the same to
determine whether or not they conform to the
requirements of this Guarantee Agreement but
need not confirm or investigate the accuracy
of any mathematical calculations or other
facts stated therein.
(ii) The Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer of the Guarantee Trustee, unless it shall be
proved that the Guarantee
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Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made.
(iii) The Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by
it in good faith in accordance with the written
direction of the Holders of not less than a Majority
in Liquidation Amount of the Preferred Securities
relating to the time, method and place of conducting
any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this
Guarantee Agreement.
(iv) Subject to Section 3.1(b), no provision of this
Guarantee Agreement shall require the Guarantee
Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance
of any of its duties or in the exercise of any of its
rights or powers, if the Guarantee Trustee shall have
reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured
to it under the terms of this Guarantee Agreement or
indemnity reasonably satisfactory to it against such
risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely and shall
be fully protected in acting or refraining from
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document (whether in its original or facsimile form)
reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently
evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it
desirable that a matter be proved or established
before taking, suffering or omitting to take any
action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate
which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel
of its own selection, and the advice or opinion of
such legal counsel with respect to legal matters
shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith
and in accordance with such advice or opinion. Such
legal counsel may be legal counsel to the Guarantor
or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right
at any time to seek instructions concerning the
administration of this Guarantee Agreement from any
court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Guarantee Agreement at the request or direction
of any Holder unless such Holder shall have provided
to the Guarantee Trustee such security and indemnity
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satisfactory to it against the costs, expenses
(including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying
with such request or direction, including such
reasonable advances as may be requested by the
Guarantee Trustee; provided that nothing contained in
this Section 3.2(a)(v) shall be taken to relieve the
Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit at the expense of the
Guarantor and shall incur no liability or additional
liability of any kind by reason of such inquiry or
investigation.
(vii) The Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through its agents,
attorneys, custodians or nominees and the Guarantee
Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent,
attorney, custodian or nominee appointed by it with
due care hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (A) may
request instructions from the Holders, (B) may
refrain from enforcing such remedy or right or taking
such other action until such instructions are
received, and (C) shall be fully protected in acting
in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power
or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power
and authority.
SECTION 3.3. Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such
reasonable compensation for all services rendered by it
hereunder as may be agreed upon from time to time in writing
by the Guarantor and the Guarantee Trustee (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Guarantee Trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the
Guarantee Trustee in accordance with any provision of this
Guarantee Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
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(c) to fully indemnify the Guarantee Trustee and any predecessor
Guarantee Trustee and their officers, directors and employees
for, and to hold it harmless against, any and all loss,
liability, claim, damage or expense incurred without
negligence, bad faith or wilful misconduct on the part of the
Guarantee Trustee, arising out of or in connection with the
acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement. The Guarantor's indemnification obligations as set forth in this
Section 3.3 shall survive the termination of this Guarantee Agreement or the
resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000, and
shall be a corporation meeting the requirements of
Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of
its supervising or examining authority, then, for the
purposes of this Section 4.1 and to the extent
permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set
forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(c), the Guarantee Trustee may be
appointed or removed at any time by the action of the Holders
of a Majority in Liquidation Amount of the Preferred
Securities delivered to the Guarantee Trustee and the
Guarantor (i) for cause or (ii) if a Debenture Event of
Default (as defined in the Declaration of Trust) shall have
occurred and be continuing at any time.
(b) Subject to Section 4.2(c), the Guarantee Trustee may resign
from office (without need for prior or subsequent accounting)
by giving written notice thereof to the Holders and the
Guarantor and by appointing a successor Guarantee Trustee. The
Guarantee Trustee shall appoint a successor by requesting from
at least three Persons meeting the requirements of Section
4.1(a) their expenses and
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charges to serve as the Guarantee Trustee, and selecting the
Person who agrees to the lowest expenses and charges.
(c) The Guarantee Trustee appointed hereunder shall hold office
until a Successor Guarantee Trustee shall have been appointed
and shall have accepted such appointment. No removal or
resignation of a Guarantee Trustee shall be effective until a
Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by
such Successor Guarantee Trustee and delivered to the
Guarantor and, in the case of any resignation, the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2
within 60 days after delivery to the Holders and the Guarantor
of a notice of resignation, the resigning Guarantee Trustee
may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
(e) If a resigning Guarantee Trustee shall fail to appoint a
successor, or if a Guarantee Trustee shall be removed or
become incapable of acting as Guarantee Trustee and a
replacement shall not be appointed prior to such resignation
or removal, or if a vacancy shall occur in the office of
Guarantee Trustee for any cause, the Holders of the Preferred
Securities, by the action of the Holders of record of not less
than 25% in aggregate Liquidation Amount (as defined in the
Declaration of Trust) of the Preferred Securities then
Outstanding (as defined in the Declaration of Trust) delivered
to such Guarantee Trustee, may appoint a Successor Guarantee
Trustee or Trustees. If no successor Guarantee Trustee shall
have been so appointed by the Holders of the Preferred
Securities and accepted appointment, any Holder, on behalf of
such Holder and all others similarly situated, or any other
Guarantee Trustee, may petition any court of competent
jurisdiction for the appointment of a successor Guarantee
Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Issuer Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer Trust may have or
assert, except the defense of payment. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer Trust to pay such amounts
to the Holders.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Issuer Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
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<PAGE> 15
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer Trust of any
express or implied agreement, covenant, term or condition
relating to the Preferred Securities to be performed or
observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of
all or any portion of the Distributions (other than an
extension of time for payment of Distributions that results
from the extension of any interest payment period on the
Debentures as provided in the Indenture), Redemption Price,
Liquidation Distribution or any other sums payable under the
terms of the Preferred Securities or the extension of time for
the performance of any other obligation under, arising out of,
or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant
to the terms of the Preferred Securities, or any action on the
part of the Issuer Trust granting indulgence or extension of
any kind;
(d) the voluntary or involuntary liquidation, dissolution,
receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition
or readjustment of debt of, or other similar proceedings
affecting, the Issuer Trust or any of the assets of the Issuer
Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor (other than payment of the underlying obligation),
it being the intent of this Section 5.3 that the obligations
of the Guarantor hereunder shall be absolute and unconditional
under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement without first
instituting a legal proceeding against the Guarantee Trustee, the Issuer Trust
or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer Trust) or upon the distribution of Debentures to Holders as
provided in the Declaration of Trust.
11
<PAGE> 16
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer Trust with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Debentures and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Guarantor
hereunder. The obligations of the Guarantor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall
rank pari passu with (i) the obligations of the Guarantor under any similar
guarantee agreements issued by the Guarantor on behalf of the holders of
preferred or capital securities issued by the Issuer Trust (as defined in the
Indenture), (ii) the Indenture and the Securities (as defined therein) issued
thereunder, (iii) the Expense Agreement (as defined in the Declaration of Trust)
and (iv) any other security, guarantee or other agreement or obligation that is
expressly stated to rank pari passu with the obligations of the Guarantor under
this Guarantee Agreement or with any obligation that ranks pari passu with the
obligations of the Guarantor under this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon full payment of the Redemption Price (as defined in the Declaration
of Trust) of all Preferred Securities, the distribution of Debentures to the
Holders in exchange for all of the Preferred Securities or full payment of the
amounts payable in accordance with
12
<PAGE> 17
Article IX of the Declaration of Trust upon liquidation of the Issuer Trust.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
is required to repay any sums paid with respect to Preferred Securities or this
Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder, and any purported assignment other than in accordance
with this provision shall be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not adversely affect the
rights of the Holders in any material respect (in which case no consent of the
Holders will be required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than a Majority in Liquidation Amount
of the Preferred Securities. The provisions of Article VI of the Declaration of
Trust concerning meetings of the Holders shall apply to the giving of such
approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number
set forth below or such other address or telecopy number as
the Guarantor may give notice to the Guarantee Trustee and the
Holders:
Citadel Communications Corporation
1111 Stewart Avenue
Bethpage, New York 11714
Attention: Secretary
Telecopy: [ ]
(b) if given to the Guarantee Trustee, at the address or telecopy
number set forth below or such other address or telecopy
number as the Guarantee Trustee may give notice to the
Guarantor and Holders:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Telecopy: (212) 815-5915
with a copy to:
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<PAGE> 18
CCC Capital Trust [ I/II]
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
Attention: Secretary
Telecopy: [ ]
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Preferred Securities.
SECTION 8.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.6. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Guarantee
Agreement as of the day and year first above written.
CITADEL COMMUNICATIONS
CORPORATION
By: ________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Guarantee Trustee
By: ________________________________
Name:
Title:
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<PAGE> 19
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __ day of [ ], 1999, before me personally came _____________, to
me known, who, being by me duly sworn, did depose and say that he is
________________ of Citadel Communications Corporation, one of the corporations
described in and which executed the foregoing instrument; that he/she signed
his/her name thereto by authority of the Board of Directors of said corporation.
______________________________________
15
<PAGE> 1
Exhibit 5.1
[Eckert Seamans Cherin & Mellott, LLC Letterhead]
December 10, 1999
Citadel Communications Corporation
Citadel Broadcasting Company
City Center West
7201 W. Lake Mead Blvd.
Suite 400
Las Vegas, Nevada 89128
Ladies and Gentlemen:
We are acting as counsel to Citadel Communications Corporation, a Nevada
corporation (the "Company"), Citadel Broadcasting Company, a Nevada corporation
("CBC"), and Citadel Capital Trust I and Citadel Capital Trust II (each a
"Trust" and collectively the "Trusts") in connection with the December 10,
1999 filing of a registration statement on Form S-3 (the "Registration
Statement") with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended.
We have reviewed the Registration Statement, including the prospectus (the
"Prospectus") which is a part of the Registration Statement. The Prospectus
provides that it will be supplemented in the future by one or more supplements
to the Prospectus (each a "Prospectus Supplement"). The Prospectus as
supplemented by one or more Prospectus Supplements will provide for the sale
from time to time of up to $1,000,000,000 aggregate amount of (A)(i) unsecured
senior debt securities, unsecured subordinated debt securities and unsecured
junior subordinated debt securities of the Company (collectively, the "Company
Debt Securities"), (ii) unsecured junior subordinated debt securities of CBC
(the "CBC Debt Securities" and collectively with the Company Debt Securities,
the "Debt Securities"), (iii) guarantees by the Company of the CBC Debt
Securities (the "Debt Guarantees"), (iv) preferred stock of the Company (the
"Preferred Stock"), (v) common stock, par value $0.001 per share, of the Company
(the "Common Stock"), (vi) preferred securities of the Trusts (the "Preferred
Securities"), (vii) guarantees by the Company of the Preferred Securities (the
"Preferred Guarantees"), (viii) warrants of the Company to purchase Debt
Securities, Preferred Stock or Common Stock (the "Warrants"), (ix) stock
purchase contracts to purchase Common Stock or Preferred Stock (the "Purchase
Contracts"), and (x) stock purchase units, each representing ownership of a
Purchase Contract and Debt Securities, Preferred Securities or debt obligations
of the United States of America or agencies or instrumentalities thereof,
securing the holder's obligation to purchase Common Stock or Preferred Stock
under the Purchase Contracts (the "Stock Purchase Units") and (B) shares of
Common Stock by certain stockholders of the Company identified in the Prospectus
(the "Selling Stockholders"). The Registration Statement provides that Debt
Securities may be convertible into shares of Common Stock or shares of Preferred
Stock, and that shares of Preferred Stock may be convertible into shares of
Common Stock. All securities that may be sold by the Company, CBC and the Trusts
will be newly issued.
<PAGE> 2
The Debt Securities and the Debt Guarantees will be issued pursuant to one or
more indentures in a form filed as an exhibit to the Registration Statement, as
amended or supplemented from time to time (each, an "Indenture"), between the
Company or CBC, as applicable, as obligor, and a trustee chosen by the Company
or CBC, as applicable, and qualified to act as such under the Trust Indenture
Act of 1939, as amended (each, a "Trustee"). The Warrants will be issued under
one or more warrant agreements in the form filed as an exhibit to the
Registration Statement, as amended or supplemented from time to time (each, a
"Warrant Agreement"), by and between the Company and a financial institution
identified therein as warrant agent. The Purchase Contracts will be issued under
one or more Purchase Contract Agreements in the form filed as an exhibit to the
Registration Statement, as amended or supplemented from time to time (each, a
"Purchase Contract Agreement"), by and between the Company and a purchase
contract agent. The Preferred Securities are to be issued from time to time by
each Trust pursuant to an Amended and Restated Declaration of Trust (the
"Amended Declaration") to be filed with the Secretary of State of the State of
Delaware by the Trustee of the relevant Trust. The Preferred Guarantees will be
issued under one or more guarantee agreements in the form filed as an exhibit to
the Registration Statement, as amended or supplemented from time to time (each,
a "Guarantee Agreement"), by and between the Company and a trustee chosen by the
Company and qualified to act as such under the Trust Indenture Act of 1939, as
amended.
We have examined originals or copies certified or otherwise identified to our
satisfaction of such records of the Company, agreements and other instruments,
certificates of public officials and of officers of the Company and such other
documents as we have deemed necessary for the basis for the opinions hereinafter
expressed. In rendering such opinions, we have assumed the genuineness of all
signatures and the authenticity of all documents examined by us. As to various
questions of fact material to such opinions, we have relied upon representations
of the Company. As to matters involving the application of laws of the State of
Nevada, we have relied upon the opinion to the Company and us dated December 10,
1999 of Lionel Sawyer & Collins.
Based upon the foregoing, we are of the opinion that:
1. Assuming that the Indentures, any Debt Securities and any supplemental
indentures to be entered into in connection with the issuance of such
Debt Securities have been duly authorized, when (i) the applicable
Indenture in respect of the Debt Securities has been duly executed and
delivered, (ii) the terms of the Debt Securities have been duly
established in accordance with the applicable Indenture and any
applicable supplemental indenture relating to such Debt Securities so
as not to violate any applicable law or result in a default under or
breach of any agreement or instrument binding upon the Company or CBC,
as applicable, and so as to comply with any requirement or restriction
imposed by any court or governmental or regulatory body having
jurisdiction over the Company or CBC, as applicable, and (iii) the Debt
Securities have been duly executed and authenticated in accordance with
the applicable Indenture and any applicable supplemental indenture
relating to such Debt Securities and duly issued and delivered by the
Company or CBC, as applicable, in the manner contemplated in the
Registration Statement, the Prospectus and any Prospectus Supplement(s)
relating thereto, the Debt Securities (including any Debt Securities
duly issued (a) upon exchange or conversion of
2
<PAGE> 3
any shares of Preferred Stock that are exchangeable or convertible into
Debt Securities, (b) upon the exercise of any Warrants exercisable for
Debt Securities or (c) as part of Stock Purchase Units) will constitute
valid and binding obligations of the Company or CBC, as applicable,
enforceable in accordance with their terms, except that (1) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws
now or hereinafter in effect relating to or affecting the enforcement
of creditor's rights generally, and (2) the availability of equitable
remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at law
or in equity).
2. Assuming that the Indentures, any Debt Guarantees and related Debt
Securities and any supplemental indentures to be entered into in
connection with the issuance of such Debt Guarantees and related Debt
Securities have been duly authorized, when (i) the applicable Indenture
in respect of the Debt Guarantees and related Debt Securities has been
duly executed and delivered, (ii) the terms of the Debt Guarantees and
related Debt Securities have been duly established in accordance with
the applicable Indenture and any applicable supplemental indenture
relating to such Debt Guarantees and related Debt Securities so as not
to violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company or CBC, as
applicable, and so as to comply with any requirement or restriction
imposed by any court or governmental or regulatory body having
jurisdiction over the Company or CBC, as applicable, (iii) the Debt
Securities have been duly executed and authenticated in accordance with
the applicable Indenture and any applicable supplemental indenture
relating to such Debt Securities, and (iv) the Debt Guarantee and
related Debt Securities have been duly issued and delivered by the
Company or CBC, as applicable, in the manner contemplated in the
Registration Statement, the Prospectus and any Prospectus Supplement(s)
relating thereto, the Debt Guarantees will constitute valid and binding
obligations of the Company enforceable in accordance with their terms,
except that (1) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or other similar laws now or hereinafter in effect relating to or
affecting the enforcement of creditor's rights generally, and (2) the
availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether considered
in a proceeding at law or in equity).
3. Assuming that a Guarantee Agreement relating to the Preferred
Guarantees and such Preferred Guarantees has been duly authorized, when
(i) the applicable Guarantee Agreement has been duly executed and
delivered so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed
by any court or governmental or regulatory body having jurisdiction
over the Company, and (ii) the Preferred Securities have been duly
issued and delivered by the applicable Trusts in the manner
contemplated by the Registration Statement, the Prospectus and any
Prospectus Supplement(s) relating thereto, the Preferred Guarantees
will constitute binding obligations of the Company, enforceable in
accordance with their terms, except that (a) the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or similar laws now or hereinafter in effect
relating to or
3
<PAGE> 4
affecting the enforcement of creditors' rights generally, and (b) the
availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether considered
in a proceeding at law or in equity).
4. Assuming that a Warrant Agreement relating to the Warrants and such
Warrants, have been duly authorized, when (i) the Warrant Agreement has
been duly executed and delivered, (ii) the terms of the Warrants and of
their issuance and sale have been duly established in conformity with
the Warrant Agreement relating to such Warrants so as not to violate
any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply
with any requirement or restriction imposed by any court or
governmental or regulatory body having jurisdiction over the Company,
and (iii) the Warrants have been duly executed and countersigned in
accordance with the Warrant Agreement relating to such Warrants, and
issued and sold in the form and in the manner contemplated in the
Registration Statement, the Prospectus and any Prospectus Supplement(s)
relating thereto, such Warrants will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms,
except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or other similar law now or hereinafter in effect relating to or
affecting creditors' rights generally, and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at law
or in equity).
5. Assuming that a Purchase Contract Agreement relating to the Purchase
Contracts and such Purchase Contracts have been duly authorized, when
(i) the Purchase Contract Agreement has been duly executed and
delivered, (ii) the terms of the Purchase Contracts and of their
issuance and sale have been duly established in conformity with the
Purchase Contract Agreement so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental or regulatory body
having jurisdiction over the Company, and (iii) the Purchase Contracts
have been duly executed and issued in accordance with the Purchase
Contract Agreement relating to such Purchase Contracts, and issued and
sold in the form and in the manner contemplated in the Registration
Statement, the Prospectus and any Prospectus Supplement(s) relating
thereto, such Purchase Contracts will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms,
except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or other similar laws now or hereinafter in effect relating to or
affecting creditors' rights generally, and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at law
or in equity).
6. Assuming that the Stock Purchase Units, a Purchase Contract Agreement
relating to the Purchase Contracts comprising a part of the Stock
Purchase Units and such Purchase Contracts have been duly authorized,
when (i) the Purchase Contract Agreement has been duly executed and
delivered, (ii) the terms of the Purchase Contracts and of their
issuance and sale have been duly established in conformity with the
Purchase Contract Agreement
4
<PAGE> 5
so as not to violate any applicable law or result in a default under or
breach of any agreement or instrument binding upon the Company and so
as to comply with any requirement or restriction imposed by any court
or governmental or regulatory body having jurisdiction over the
Company, (iii) the terms of the collateral arrangements relating to
such Stock Purchase Units have been duly established and the
agreement(s) relating thereto have been duly executed and delivered, in
each case so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed
by any court or governmental or regulatory body having jurisdiction
over the Company and the collateral has been deposited with the
collateral agent in accordance with such arrangements, and (iv) the
Purchase Contracts have been duly executed and issued in accordance
with the Purchase Contract Agreement relating to such Purchase
Contracts, and issued and sold in the form and in the manner
contemplated in the Registration Statement, the Prospectus and any
Prospectus Supplement(s) relating thereto, such Stock Purchase Units
will constitute valid and binding obligations of the Company,
enforceable in accordance with their terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws
now or hereinafter in effect relating to or affecting creditors' rights
generally and (b) the availability of equitable remedies may be limited
by equitable principles of general applicability (regardless of whether
considered in a proceeding at law or in equity).
7. The Company has the authority pursuant to its Amended and Restated
Certificate of Incorporation, (the "Certificate") to issue up to 20,000
shares of Preferred Stock. When a series of Preferred Stock has been
duly established in accordance with the terms of the Company's
Certificate and applicable law, and upon adoption by the Board of
Directors of the Company of a resolution in form and content as
required by applicable law and upon issuance and delivery of and
payment for such shares in the manner contemplated by the Registration
Statement, the Prospectus and any Prospectus Supplement(s) relating
thereto and by such resolution, such shares of such series of Preferred
Stock (including any shares of Preferred Stock issued (i) upon exercise
of any Warrants for Preferred Stock, (ii) upon conversion of any Debt
Securities that are convertible or exchangeable into Preferred Stock or
(iii) pursuant to Stock Purchase Contracts) will be validly issued,
fully paid and non-assessable.
8. The Company has the authority pursuant to its Certificate to issue up
to 200,000,000 shares of Common Stock. Upon adoption by the Board of
Directors of the Company of a resolution in form and content as
required by applicable law and upon issuance and delivery of and
payment for such shares in the manner contemplated by the Registration
Statement, the Prospectus and any Prospectus Supplement(s) relating
thereto and by such resolution, such shares of Common Stock (including
any shares of Common Stock issued (i) upon exercise of any Warrants for
Common Stock, (ii) upon conversion of any Debt Securities that are
convertible or exchangeable for Common Stock, (iii) pursuant to Stock
Purchase Contracts, or (iv) upon the exchange or conversion of any
shares of Preferred Stock that are exchangeable or convertible into
Common Stock) will be validly issued, fully paid and non-assessable.
5
<PAGE> 6
9. Assuming due adoption by the Company's Board of Directors of a
resolution in form and content as required by applicable law
authorizing issuance of Common Stock to the Selling Stockholders, then
upon issuance and delivery of such Common Stock and receipt by the
Company of the consideration called for in such resolution, such Common
Stock held by the Selling Stockholders, and when such shares are sold
as contemplated by the applicable underwriting or other agreement, will
be, validly issued, fully paid and non-assessable.
We express no opinion concerning the enforceability of any waiver of rights or
defenses with respect to stay, extension or usury laws, and we express no
opinion with respect to whether acceleration of Debt Securities may affect the
collectibility of any portion of the stated principal amount thereof which might
be determined to constitute unearned interest thereon.
In connection with the opinions expressed above, we have assumed that, at or
prior to the time of the delivery of any security, (i) the Board of Directors
shall have duly established the terms of such security and duly authorized the
issuance and sale of such security and such authorization shall not have been
modified or rescinded, (ii) the Registration Statement shall have been declared
effective and such effectiveness shall not have been terminated or rescinded,
and (iii) there shall not have occurred any change in law affecting the validity
or enforceability of such security. We have also assumed that none of the terms
of any security to be established subsequent to the date hereof, nor the
issuance and delivery of such security, nor the compliance by the Company with
the terms of such security will violate any applicable law or will result in a
violation of any provision of any instrument or agreement then binding upon the
Company, or any restriction imposed by any court or governmental body having
jurisdiction over the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In addition, we consent to the reference to us under the
caption "Validity of the Securities" in the prospectus. In giving the foregoing
consents, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ ECKERT SEAMANS CHERIN & MELLOTT, LLC
Eckert Seamans Cherin & Mellott, LLC
BDR/VMK/rmd/blk
6
<PAGE> 1
EXHIBIT 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
December 10, 1999
CCC Capital Trust I
c/o Citadel Communications Corporation
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
Re: CCC Capital Trust I
-------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Citadel
Communications Corporation, a Nevada corporation (the "Company"), and CCC
Capital Trust I, a Delaware business trust (the "Trust"), in connection with the
matters set forth herein. At your request, this opinion is being furnished to
you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated December 6,
1999 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on December 6, 1999;
(b) The Declaration of Trust of the Trust, dated as of
December 6, 1999, among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the
Trust (including Exhibits A, C and E thereto) (the "Declaration"), to be entered
into among the Company, as depositor, the trustees of the Trust named therein,
the administrators of the Trust
<PAGE> 2
CCC Capital Trust I
December 10, 1999
Page 2
named therein and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust, attached as an exhibit to the Registration
Statement (as defined below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the
Preferred Securities of the Trust representing undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company, the Trust and
others with the Securities and Exchange Commission on or about December 10,
1999; and
(e) A Certificate of Good Standing for the Trust, dated
December 10, 1999, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each of
the parties to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each of the parties to the documents
examined by us has duly authorized, executed and delivered such documents, (vi)
the receipt by each Person to whom a Preferred Security is to be issued by the
Trust (collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Declaration and the Registration
Statement, and (vii) that the Preferred
<PAGE> 3
CCC Capital Trust I
December 10, 1999
Page 3
Securities are issued and sold to the Preferred Security Holders in accordance
with the Declaration and the Registration Statement. We have not participated in
the preparation of the Registration Statement and assume no responsibility for
its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Validity
of Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above,without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/MKS
<PAGE> 1
EXHIBIT 5.3
[Letterhead of Richards, Layton & Finger, P.A.]
December 10, 1999
CCC Capital Trust II
c/o Citadel Communications Corporation
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
Re: CCC Capital Trust II
--------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Citadel
Communications Corporation, a Nevada corporation (the "Company"), and CCC
Capital Trust II, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated December 6,
1999 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on December 6, 1999;
(b) The Declaration of Trust of the Trust, dated as of
December 6, 1999, among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the
Trust (including Exhibits A, C and E thereto) (the "Declaration"), to be entered
into among the Company, as depositor, the trustees of the Trust named therein,
the administrators of the Trust
<PAGE> 2
CCC Capital Trust II
December 10, 1999
Page 2
named therein and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust, attached as an exhibit to the Registration
Statement (as defined below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the
Preferred Securities of the Trust representing undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company, the Trust and
others with the Securities and Exchange Commission on or about December 10,
1999; and
(e) A Certificate of Good Standing for the Trust, dated
December 10, 1999, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each of
the parties to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each of the parties to the documents
examined by us has duly authorized, executed and delivered such documents, (vi)
the receipt by each Person to whom a Preferred Security is to be issued by the
Trust (collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Declaration and the Registration
Statement, and (vii) that the Preferred
<PAGE> 3
CCC Capital Trust II
December 10, 1999
Page 3
Securities are issued and sold to the Preferred Security Holders in accordance
with the Declaration and the Registration Statement. We have not participated in
the preparation of the Registration Statement and assume no responsibility for
its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Validity
of Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above,without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
<PAGE> 1
Exhibit 5.4
December 10, 1999
Citadel Communications Corporation
Citadel Broadcasting Company
City Center West
7201 West Lake Mead Boulevard
Suite 400
Las Vegas, Nevada 89128
Eckert Seamans Cherin & Mellott, LLC
600 Grant Street
44th Floor
Pittsburgh, Pennsylvania 15219
Re: Citadel Communications Corporation (the "Company")
Registration Statement on Form S-3
--------------------------------------------------
Ladies and Gentlemen:
We are acting as special Nevada counsel for the Company and for Citadel
Broadcasting Company, Inc., a Nevada corporation ("CBC"), in connection with the
preparation of a Registration Statement on Form S-3 ("Registration Statement")
being filed on or about the date hereof by the Company with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), with respect to the registration by the Company, CBC, CCC
Capital Trust I and CCC Capital Trust II (the "Trusts," and collectively with
the Company and CBC, the "Registrants") of various securities, including without
limitation, shares of the Company's common stock (the shares that may be issued
under the Registration Statement, the Prospectus (as defined below) and/or any
Prospectus Supplement (as defined below), the "Common Stock") and preferred
stock (the shares that may be issued under the Registration Statement, the
Prospectus and/or any Prospectus Supplement, the "Preferred Stock"), warrants
for the purchase thereof (such warrants that may be issued under the
Registration Statement, the Prospectus and/or any Prospectus
<PAGE> 2
Citadel Communications Corporation
Eckert Seamans Cherin & Mellott, LLC
December 10, 1999
Page 2
Supplement, the "Stock Warrants"), various debt securities (the debt securities
that may be issued under the Registration Statement, the Prospectus and/or any
Prospectus Supplement, the "Debt Securities"), warrants for the purchase
thereof, junior subordinated debt securities issued by CBC, guarantees by the
Company of such junior subordinated debt securities of CBC, preferred securities
of the Trusts (the "Trust Preferred Securities"), guarantees by the Company with
respect to the Trust Preferred Securities, stock purchase contracts and stock
purchase units (as those terms are described in the Registration Statement), all
of which are referred to herein as the "Securities." The prospectus which is a
part of the Registration Statement ("Prospectus") provides that it will be
supplemented in the future by one or more supplements (each a "Prospectus
Supplement"). The Prospectus, as supplemented by various Prospectus Supplements
will provide for the issuance and sale by the Registrants and the selling
stockholders identified in the Registration Statement ("Selling Stockholders")
of up to $1,000,000,000 aggregate offering price of the various Securities.
This Opinion Letter is governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord, and this Opinion
Letter should be read in conjunction therewith. The Law covered by the Opinions
expressed herein is limited to the State of Nevada.
We have examined originals or copies of each of the documents listed
below:
1. Certificate of Corporate Existence of the Company certified by
Nevada's Secretary of State as of November 17, 1999;
2. Certificate of Corporate Existence of CBC certified by
Nevada's Secretary of State as of December 6, 1999;
3. The Eighth Amended and Restated Articles of Incorporation of
the Company certified by Nevada's Secretary of State as of
November 17, 1999 ("Articles"), and certified by the Assistant
Secretary of the Company as of the date hereof;
4. The Restated Articles of Incorporation of CBC certified by
Nevada's Secretary of State as of December 6, 1999 and
certified by the Assistant Secretary of CBC as of the date
hereof;
5. The Amended and Restated Bylaws of the Company, dated June 26,
1998, certified by the Assistant Secretary of the Company as
of the date hereof ("Bylaws");
<PAGE> 3
Citadel Communications Corporation
Eckert Seamans Cherin & Mellott, LLC
December 10, 1999
Page 3
6. The Bylaws of CBC, dated August 21, 1991, as amended on June
30, 1997, certified by the Assistant Secretary of CBC as of
the date hereof ("Bylaws");
7. Resolutions of the Company's board of directors dated November
19, 1999, and December 2, 1999, certified by the Assistant
Secretary of the Company as of the date hereof; and
8. The Registration Statement.
Documents 3 and 5 above, as they might be amended from time to time,
are referred to herein collectively as "Constituent Documents." We have examined
originals or copies of such other corporate records and certificates of
corporate officers and public officials as we have deemed necessary or advisable
for purposes of this Opinion Letter. We have relied upon the certificates of all
public officials and corporate officers with respect to the accuracy of all
factual matters contained therein.
We have assumed that any of the Securities that constitute an agreement
between the Company and the other party or parties thereto to issue shares of
the Company's capital stock are valid, binding and enforceable under the laws of
the jurisdiction governing any such Securities. We have further assumed with
respect to issuances of Common Stock that the number of shares issued does not
exceed the number of shares of the Company's common stock then authorized but
unissued (excluding shares of the Company's common stock unissued but committed
for issuance) and, with respect to issuances of Preferred Stock, the number of
shares of Preferred Stock issued does not exceed the number of shares of both:
(a) Preferred Stock then authorized but unissued (excluding Preferred Stock
unissued but committed for issuance), and (b) such series of Preferred Stock
then authorized but unissued (excluding shares of such series of Preferred Stock
unissued but committed for issuance).
Based upon the foregoing, and subject to the following, it is our
opinion that:
1. The Company and CBC are corporations, duly incorporated,
validly existing and in good standing under the laws of the
State of Nevada.
2. The Company has the authority to issue up to 200,000,000
shares of common stock, 19,103,122 shares of Series AA
Convertible Preferred Stock and 20,000 shares of undesignated
preferred stock.
<PAGE> 4
Citadel Communications Corporation
Eckert Seamans Cherin & Mellott, LLC
December 10, 1999
Page 4
3. Assuming due adoption by the Company's Board of Directors of a
resolution in form and content as required by applicable law
authorizing the issuance of Common Stock ("CS Resolution"),
then upon issuance and delivery of such Common Stock and
receipt by the Company of the consideration called for in the
CS Resolution, such Common Stock will be duly authorized,
validly issued, fully paid and nonassessable.
4. When a series of Preferred Stock has been duly established in
accordance with the terms of the Constituent Documents and
applicable law and assuming due adoption by the Company's
Board of Directors of a resolution in form and content as
required by applicable law authorizing issuance of such series
of Preferred Stock ("PS Resolution"), then upon issuance and
delivery of such Preferred Stock and receipt by the Company of
the consideration called for in the PS Resolution, such
Preferred Stock will be duly authorized, validly issued, fully
paid and nonassessable.
5. Assuming due adoption by the Company's Board of Directors of a
resolution in form and content as required by applicable law
authorizing issuance of Common Stock to Selling Stockholders
("SS Resolution"), then upon issuance and delivery of such
Common Stock and receipt by the Company of the consideration
called for in the SS Resolution, such Common Stock held by
Selling Stockholders will be duly authorized, validly issued,
fully paid and nonassessable.
6. Upon the exercise or conversion (as the case may be) of Debt
Securities, Preferred Stock, stock purchase contracts, stock
purchase units, or Stock Warrants (collectively, "Convertible
Securities") into Common Stock in accordance with the terms of
such Convertible Securities, and assuming due adoption by the
Company's Board of Directors of a resolution in form and
content as required by applicable law authorizing the
Company's entry into or issuance of the Convertible Securities
("Convertible Resolution"), then upon issuance and delivery of
such Common Stock and receipt by the Company of the
consideration called for in the Convertible Resolution, such
Common Stock will be duly authorized, validly issued, fully
paid and nonassessable.
7. When a series of Preferred Stock has been duly established in
accordance with the terms of the Constituent Documents and
applicable law and upon the exercise or conversion of
Convertible Securities into such series of Preferred Stock in
accordance with the terms of such Convertible Securities, and
assuming due adoption by the Company's Board of Directors of a
resolution in form and content as required by applicable law
and the Constituent Documents authorizing the Company's entry
<PAGE> 5
Citadel Communications Corporation
Eckert Seamans Cherin & Mellott, LLC
December 10, 1999
Page 5
into or issuance of the Convertible Securities ("Convertible
PS Resolution"), then upon issuance and delivery of such
Preferred Stock and receipt by the Company of the
consideration called for in the Convertible PS Resolution,
such Preferred Stock will be duly authorized, validly issued,
fully paid and nonassessable.
We express no opinion concerning any securities law or rule. This
Opinion Letter is intended solely for use in connection with the registration of
the Securities as described in the Registration Statement, and it may not be
relied upon for any other purpose, or reproduced or filed publicly, without the
written consent of this firm; provided, however, we hereby consent to the filing
of this Opinion Letter as an exhibit to the Registration Statement. In addition,
we consent to the reference to us under the caption "Validity of the Securities"
in the Prospectus. In giving these consents, we do not hereby admit that we are
in a category of persons whose consent is required pursuant to Section 7 of the
Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
/s/ LIONEL SAWYER & COLLINS
LIONEL SAWYER & COLLINS
<PAGE> 1
Exhibit 12.1
CITADEL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
(in thousands except ratios)
<TABLE>
<CAPTION>
Nine Months
Ended Year Ended December 31
September 30, ----------------------------------------------------------
1999 1998 1997 1996 1995 1994
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) from continuing operations
before income taxes (5,428) (5,317) (6,054) (1,997) (4,376) (5,511)
Fixed charges 29,612 33,589 20,208 6,518 5,488 5,075
Preference security dividend requirements (11,323) (14,586) (6,633) -- -- --
Earnings as adjusted (A) 12,861 13,686 7,521 4,521 1,112 (436)
Fixed Charges:
Interest expense 17,502 18,126 12,872 6,155 5,242 4,866
Interest portion of rental expense (1) 787 877 703 363 246 209
Preference security dividend requirements 11,323 14,586 6,633 -- -- --
Total fixed charges (B) 29,612 33,589 20,208 6,518 5,488 5,075
Ratio of earnings to fixed charges
(A) divided by (B) 0.43 0.41 0.37 0.69 0.20 (0.09)
Deficiency of earnings to cover fixed charges
(A) minus (B) (16,751) (19,903) (12,687) (1,997) (4,376) (5,511)
</TABLE>
(1) Management of the Company believes approximately 33% of rent expense
is a reasonable estimate of the interest portion of rental expense
<PAGE> 1
Exhibit 12.2
CITADEL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
Computation of Ratio of Earnings to Combined
Fixed Charges And Preferred Stock Dividends
(in thousands except ratios)
<TABLE>
<CAPTION>
Nine Months
Ended Year Ended December 31,
September 30, ------------------------------------------------
1999 1998 1997 1996 1995 1994
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) from continuing operations
before income taxes (5,428) (5,317) (6,054) (1,997) (4,376) (5,511)
Fixed charges 29,612 33,589 20,208 6,518 5,488 5,075
Preference security dividend requirements (11,323) (14,586) (6,633) -- -- --
Earnings as adjusted (A) 12,861 13,686 7,521 4,521 1,112 (436)
Fixed Charges:
Interest expense 17,502 18,126 12,872 6,155 5,242 4,866
Interest portion of rental expense (1) 787 877 703 363 246 209
Preference security dividend requirements 11,323 14,586 6,633 -- -- --
Total fixed charges 29,612 33,589 20,208 6,518 5,488 5,075
Preferred stock dividends (2) 11,323 14,586 6,633 -- -- --
Total fixed charges and preferred stock dividends (B) 40,935 48,175 26,841 6,518 5,488 5,075
Ratio of earnings to combined fixed charges
and preferred stock dividends (A) divided by (B) 0.31 0.28 0.28 0.69 0.20 (0.09)
Deficiency of earnings available to cover combined
fixed charges and preferred stock dividends (A) minus (B) (28,074) (34,489) (19,320) (1,997) (4,376) (5,511)
(1) Management of the Company believes approximately 33% of rent expense
is a reasonable estimate of the interest portion of rental expense
(2) Preferred stock dividends have not been grossed up due to history of tax
net operating loss carry-forwards
</TABLE>
<PAGE> 1
Exhibit 12.3
CITADEL BROADCASTING COMPANY
Computation of Ratio of Earnings to Fixed Charges
(in thousands except ratios)
<TABLE>
<CAPTION>
Nine Months
Ended Year Ended December 31,
September 30, ----------------------------------------------------------
1999 1998 1997 1996 1995 1994
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) from continuing operations
before income taxes (5,428) (5,317) (5,461) (1,966) (4,346) (5,481)
Fixed charges 29,612 33,589 19,639 6,518 5,488 5,075
Preference security dividend requirements (11,323) (14,586) (6,633) -- -- --
Earnings as adjusted (A) 12,861 13,686 7,545 4,552 1,142 (406)
Fixed Charges:
Interest expense 17,502 18,126 12,303 6,155 5,242 4,866
Interest portion of rental expense (1) 787 877 703 363 246 209
Preference security dividend requirements 11,323 14,586 6,633 -- -- --
Total fixed charges (B) 29,612 33,589 19,639 6,518 5,488 5,075
Ratio of earnings to fixed charges
(A) divided by (B) 0.43 0.41 0.38 0.70 0.21 (0.08)
Deficiency of earnings to cover fixed charges
(A) minus (B) (16,751) (19,903) (12,094) (1,966) (4,346) (5,481)
</TABLE>
(1) Management of the Company believes approximately 33% of rent expense
is a reasonable estimate of the interest portion of rental expense
<PAGE> 1
Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Citadel Communications Corporation:
We consent to incorporation by reference in this registration statement on
Form S-3 of Citadel Communications Corporation, Citadel Broadcasting Company,
CCC Capital Trust I and CCC Capital Trust II of our report dated March 5, 1999,
except as to the last two paragraphs of Note 17, which are as of March 17,
1999, on the consolidated balance sheets of Citadel Communications Corporation
and subsidiary as of December 31, 1998 and 1997 and the related consolidated
statements of operations, shareholders' equity and cash flows for each of the
years in the three-year period ended December 31, 1998, which report appears in
the December 31, 1998 annual report on Form 10-K of Citadel Communications
Corporation, and to the reference to our firm under the heading, "Independent
Auditors" in this registration statement.
/s/ KPMG LLP
Phoenix, Arizona
December 10, 1999
<PAGE> 1
Exhibit 23.4
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Citadel Broadcasting Company:
We consent to incorporation by reference in this registration statement on
Form S-3 of Citadel Communications Corporation, Citadel Broadcasting Company,
CCC Capital Trust I and CCC Capital Trust II of our report dated March 5, 1999,
except as to the last two paragraphs of Note 19, which are as of March 17,
1999, on the consolidated balance sheets of Citadel Broadcasting Company (a
wholly-owned subsidiary of Citadel Communications Corporation) and subsidiary
as of December 31, 1998 and 1997 and the related consolidated statements of
operations, shareholders' equity and cash flows for each of the years in
the three-year period ended December 31, 1998, which report appears in the
December 31, 1998 annual report on Form 10-K of Citadel Broadcasting Company,
and to the reference to our firm under the heading, "Independent Auditors" in
this registration statement.
/s/ KPMG LLP
Phoenix, Arizona
December 10, 1999
<PAGE> 1
Exhibit 23.5
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in this Registration Statement of
Citadel Communications Corporation, Citadel Broadcasting Company, CCC Capital
Trust I and CCC Capital Trust II on Form S-3 of our report dated March 28, 1997
relating to the consolidated financial statements of Tele-Media Broadcasting
Company and its partnership interests as of December 31, 1996 and 1995 and for
each of the years in the three-year period ended December 31, 1996, appearing in
the Citadel Communications Corporation Current Report on Form 8-K filed on
December 10, 1999 and the Citadel Broadcasting Company Current Report on Form
8-K filed on December 10, 1999.
We consent to the reference to us under the heading "Independent Auditors" in
such Registration Statement.
/s/ Deloitte & Touche LLP
Pittsburgh, PA
December 10, 1999
<PAGE> 1
Exhibit 23.6
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Citadel Communications Corporation:
We consent to incorporation by reference in this registration statement on Form
S-3 of Citadel Communications Corporation, Citadel Broadcasting Company, CCC
Capital Trust I and CCC Capital Trust II of our report dated April 7, 1999,
except as to note 11, which is as of August 31, 1999, on the consolidated
balance sheet of Fuller-Jeffrey Broadcasting Companies, Inc. and Subsidiaries as
of December 31, 1998 and the related consolidated statements of operations,
stockholders' deficiency and cash flows for the year then ended included in
Citadel Communications Corporation's Current Report on Form 8-K filed September
14, 1999 and in Citadel Broadcasting Company's Current Report on Form 8-K filed
September 14, 1999, and to the reference to our firm under the heading
"Independent Auditors" in this registration statement.
/s/ KPMG LLP
Sacramento, California
December 10, 1999
<PAGE> 1
Exhibit 23.7
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors
Citadel Communications Corporation
We consent to incorporation by reference in this registration statement on Form
S-3 of Citadel Communications Corporation, Citadel Broadcasting Company, CCC
Capital Trust I and CCC Capital Trust II of our report dated March 12, 1999
(except for Note 13 as to which the date is March 19, 1999) on the consolidated
balance sheets of Citywide Communications, Inc. as of December 31, 1998 and the
related consolidated statements of operations and accumulated deficit,
stockholders' deficit and cash flows for the year then ended included in Citadel
Communications Corporation's Current Report on Form 8-K dated December 10, 1999
and in Citadel Broadcasting Company's Current Report on Form 8-K dated December
10, 1999, and to the reference to our firm under the heading "Independent
Auditors" in the registration statement.
/s/ Faulk & Winkler LLC
Certified Public Accountants
Baton Rouge, Louisiana
December 10, 1999
<PAGE> 1
Exhibit 23.8
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Citadel Communications Corporation:
We consent to incorporation by reference in this registration statement on Form
S-3 of Citadel Communications Corporation, Citadel Broadcasting Company, CCC
Capital Trust I and CCC Capital Trust II of our report dated May 17, 1999 on the
balance sheet of Wicks Radio Group (a Division of the Wicks Broadcast Group
Limited Partnership) as of December 31, 1998, and the related statements of
operations and changes in division equity, and cash flows for the year then
ended included in Citadel Communications Corporation's Current Report on Form
8-K dated December 10, 1999 and in Citadel Broadcasting Company's Current Report
on Form 8-K dated December 10, 1999, and to the reference to our firm under the
heading "Independent Auditors" in this registration statement.
/s/ KPMG LLP
McLean, Virginia
December 10, 1999
<PAGE> 1
Exhibit 23.9
INDEPENDENT AUDITORS' CONSENT
The Partners
Broadcasting Partners Holdings, L.P.
We consent to incorporation by reference in this registration statement on Form
S-3 of Citadel Communications Corporation, Citadel Broadcasting Company, CCC
Capital Trust I and CCC Capital Trust II of our report dated March 30, 1999 on
the combined balance sheets of Broadcasting Partners Holdings Radio Group as of
December 31, 1997 and 1998 and the related combined statements of operations,
partners' capital and cash flows for the period from January 9, 1997 (inception)
through December 31, 1997 and the year ended December 31, 1998 included in
Citadel Communications Corporation's Current Report on Form 8-K dated December
10, 1999 and in Citadel Broadcasting Company's Current Report on Form 8-K dated
December 10, 1999, and to the reference to our firm under the heading
"Independent Auditors" in this registration statement.
/s/ KPMG LLP
McLean Virginia
December 10, 1999
<PAGE> 1
Exhibit 23.10
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in this registration statement on Form
S-3 of Citadel Communications Corporation, Citadel Broadcasting Company, CCC
Capital Trust I and CCC Capital Trust II of our report dated December 6, 1999 on
the combined balance sheet of Liggett Broadcast, Inc. as of December 31, 1998
and the related combined statements of operations, shareholder's equity and cash
flows for the year then ended included in Citadel Communications Corporation's
Current Report on Form 8-K dated December 10, 1999 and in Citadel Broadcasting
Company's Current Report on Form 8-K dated December 10, 1999, and to the
reference to our firm under the heading "Independent Auditors" in this
registration statement.
/s/ Andrews Hooper & Pavlik P.L.C.
Okemos, Michigan
December 10, 1999
<PAGE> 1
Exhibit 23.11
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Citadel Communications Corporation:
We consent to incorporation by reference in the registration statement on Form
S-3 of Citadel Communications Corporation, Citadel Broadcasting Company, CCC
Capital Trust I and CCC Capital Trust II of our report dated February 12, 1999
on the balance sheet of Caribou Communications Co. as of December 31, 1998 and
1997, and the related statements of operations, changes in partners' equity, and
cash flows for the years then ended, included in Citadel Communications
Corporation's Current Report on Form 8-K dated December 10, 1999 and in Citadel
Broadcasting Company's Current Report on Form 8-K dated December 10, 1999, and
to the reference to our firm under the heading "Independent Auditors" in this
registration statement.
/s/ Cole & Reed, P.C.
Oklahoma City, Oklahoma
December 10, 1999
<PAGE> 1
Exhibit 25.1
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [__]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
Citadel Communications Corporation
(Exact name of obligor as specified in its charter)
Nevada 86-0748219
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
(Address of principal executive offices) (Zip code)
---------------
Senior Debt Securities
(Title of the indenture securities)
==============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Name Address
Superintendent of Banks of the State 2 Rector Street, New York, N.Y. 10006,
of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b)WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 7th day of December, 1999.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
------------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE> 4
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..................... $ 6,394,412
Interest-bearing balances.............................................. 3,966,749
Securities:
Held-to-maturity securities............................................ 805,227
Available-for-sale securities.......................................... 4,152,260
Federal funds sold and Securities purchased under agreements to resell... 1,449,439
Loans and lease financing receivables:
Loans and leases, net of unearned income........37,900,739
LESS: Allowance for loan and lease losses..........572,761
LESS: Allocated transfer risk reserve...............11,754
Loans and leases, net of unearned income, allowance, and reserve....... 37,316,224
Trading Assets........................................................... 1,646,634
Premises and fixed assets (including capitalized leases)................. 678,439
Other real estate owned.................................................. 11,571
Investments in unconsolidated subsidiaries and associated companies...... 183,038
Customers' liability to this bank on acceptances outstanding............. 349,282
Intangible assets........................................................ 790,558
Other assets............................................................. 2,498,658
-----------
Total assets............................................................. $60,242,491
===========
LIABILITIES
Deposits:
In domestic offices.................................................... $26,030,231
Noninterest-bearing.............................11,348,986
Interest-bearing................................14,681,245
In foreign offices, Edge and Agreement subsidiaries, and IBFs.......... 18,530,950
Noninterest-bearing................................156,624
Interest-bearing................................18,374,326
Federal funds purchased and Securities sold under agreements
to repurchase.......................................................... 2,094,678
Demand notes issued to the U.S. Treasury................................. 232,459
Trading liabilities...................................................... 2,081,462
Other borrowed money:
With remaining maturity of one year or less............................ 863,201
With remaining maturity of more than one year through three years...... 449
With remaining maturity of more than three years....................... 31,080
Bank's liability on acceptances executed and outstanding................. 351,286
Subordinated notes and debentures........................................ 1,308,000
Other liabilities........................................................ 3,055,031
-----------
Total liabilities........................................................ 54,578,827
-----------
EQUITY CAPITAL
Common stock............................................................. 1,135,284
Surplus.................................................................. 815,314
Undivided profits and capital reserves................................... 3,759,164
Net unrealized holding gains (losses) on available-for-sale securities... (15,440)
Cumulative foreign currency translation adjustments...................... (30,658)
. -----------
Total equity capital..................................................... 5,663,664
-----------
Total liabilities and equity capital..................................... $60,242,491
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank, do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi |
Alan R. Griffith | Directors
Gerald L. Hassell |
- --------------------------------------------------------------------------------
<PAGE> 1
Exhibit 25.2
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [__]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
Citadel Communications Corporation
(Exact name of obligor as specified in its charter)
Nevada 86-0748219
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
(Address of principal executive offices) (Zip code)
---------------
Senior Subordinated Debt Securities
(Title of the indenture securities)
==============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
Name Address
Superintendent of Banks of the State 2 Rector Street, New York, N.Y. 10006,
of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 7th day of December, 1999.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
----------------------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE> 4
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..................... $ 6,394,412
Interest-bearing balances.............................................. 3,966,749
Securities:
Held-to-maturity securities............................................ 805,227
Available-for-sale securities.......................................... 4,152,260
Federal funds sold and Securities purchased under agreements to resell... 1,449,439
Loans and lease financing receivables:
Loans and leases, net of unearned income........37,900,739
LESS: Allowance for loan and lease losses..........572,761
LESS: Allocated transfer risk reserve...............11,754
Loans and leases, net of unearned income, allowance, and reserve....... 37,316,224
Trading Assets........................................................... 1,646,634
Premises and fixed assets (including capitalized leases)................. 678,439
Other real estate owned.................................................. 11,571
Investments in unconsolidated subsidiaries and associated companies...... 183,038
Customers' liability to this bank on acceptances outstanding............. 349,282
Intangible assets........................................................ 790,558
Other assets............................................................. 2,498,658
-----------
Total assets............................................................. $60,242,491
===========
LIABILITIES
Deposits:
In domestic offices.................................................... $26,030,231
Noninterest-bearing.............................11,348,986
Interest-bearing................................14,681,245
In foreign offices, Edge and Agreement subsidiaries, and IBFs.......... 18,530,950
Noninterest-bearing................................156,624
Interest-bearing................................18,374,326
Federal funds purchased and Securities sold under agreements
to repurchase.......................................................... 2,094,678
Demand notes issued to the U.S. Treasury................................. 232,459
Trading liabilities...................................................... 2,081,462
Other borrowed money:
With remaining maturity of one year or less............................ 863,201
With remaining maturity of more than one year through three years...... 449
With remaining maturity of more than three years....................... 31,080
Bank's liability on acceptances executed and outstanding................. 351,286
Subordinated notes and debentures........................................ 1,308,000
Other liabilities........................................................ 3,055,031
-----------
Total liabilities........................................................ 54,578,827
-----------
EQUITY CAPITAL
Common stock............................................................. 1,135,284
Surplus.................................................................. 815,314
Undivided profits and capital reserves................................... 3,759,164
Net unrealized holding gains (losses) on available-for-sale securities... (15,440)
Cumulative foreign currency translation adjustments...................... (30,658)
. -----------
Total equity capital..................................................... 5,663,664
-----------
Total liabilities and equity capital..................................... $60,242,491
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank, do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi |
Alan R. Griffith | Directors
Gerald L. Hassell |
- --------------------------------------------------------------------------------
<PAGE> 1
Exhibit 25.3
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [__]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
Citadel Communications Corporation
(Exact name of obligor as specified in its charter)
Nevada 86-0748219
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
(Address of principal executive offices) (Zip code)
---------------
Junior Subordinated Debt Securities
(Title of the indenture securities)
==============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
Name Address
Superintendent of Banks of the State 2 Rector Street, New York, N.Y. 10006,
of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b)WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 7th day of December, 1999.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
--------------------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE> 4
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..................... $ 6,394,412
Interest-bearing balances.............................................. 3,966,749
Securities:
Held-to-maturity securities............................................ 805,227
Available-for-sale securities.......................................... 4,152,260
Federal funds sold and Securities purchased under agreements to resell... 1,449,439
Loans and lease financing receivables:
Loans and leases, net of unearned income........37,900,739
LESS: Allowance for loan and lease losses..........572,761
LESS: Allocated transfer risk reserve...............11,754
Loans and leases, net of unearned income, allowance, and reserve....... 37,316,224
Trading Assets........................................................... 1,646,634
Premises and fixed assets (including capitalized leases)................. 678,439
Other real estate owned.................................................. 11,571
Investments in unconsolidated subsidiaries and associated companies...... 183,038
Customers' liability to this bank on acceptances outstanding............. 349,282
Intangible assets........................................................ 790,558
Other assets............................................................. 2,498,658
-----------
Total assets............................................................. $60,242,491
===========
LIABILITIES
Deposits:
In domestic offices.................................................... $26,030,231
Noninterest-bearing.............................11,348,986
Interest-bearing................................14,681,245
In foreign offices, Edge and Agreement subsidiaries, and IBFs.......... 18,530,950
Noninterest-bearing................................156,624
Interest-bearing................................18,374,326
Federal funds purchased and Securities sold under agreements
to repurchase.......................................................... 2,094,678
Demand notes issued to the U.S. Treasury................................. 232,459
Trading liabilities...................................................... 2,081,462
Other borrowed money:
With remaining maturity of one year or less............................ 863,201
With remaining maturity of more than one year through three years...... 449
With remaining maturity of more than three years....................... 31,080
Bank's liability on acceptances executed and outstanding................. 351,286
Subordinated notes and debentures........................................ 1,308,000
Other liabilities........................................................ 3,055,031
-----------
Total liabilities........................................................ 54,578,827
-----------
EQUITY CAPITAL
Common stock............................................................. 1,135,284
Surplus.................................................................. 815,314
Undivided profits and capital reserves................................... 3,759,164
Net unrealized holding gains (losses) on available-for-sale securities... (15,440)
Cumulative foreign currency translation adjustments...................... (30,658)
. -----------
Total equity capital..................................................... 5,663,664
-----------
Total liabilities and equity capital..................................... $60,242,491
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank, do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi |
Alan R. Griffith | Directors
Gerald L. Hassell |
- --------------------------------------------------------------------------------
<PAGE> 1
Exhibit 25.4
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [__]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
Citadel Broadcasting Company
(Exact name of obligor as specified in its charter)
Nevada 86-0703641
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Citadel Communications Corporation
(Exact name of obligor as specified in its charter)
Nevada 86-0748219
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
(Address of principal executive offices) (Zip code)
---------------
Junior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
<CAPTION>
Name Address
<S> <C>
Superintendent of Banks of the State 2 Rector Street, New York, N.Y. 10006,
of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 7th day of December, 1999.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
-------------------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE> 4
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..................... $ 6,394,412
Interest-bearing balances.............................................. 3,966,749
Securities:
Held-to-maturity securities............................................ 805,227
Available-for-sale securities.......................................... 4,152,260
Federal funds sold and Securities purchased under agreements to resell... 1,449,439
Loans and lease financing receivables:
Loans and leases, net of unearned income........37,900,739
LESS: Allowance for loan and lease losses..........572,761
LESS: Allocated transfer risk reserve...............11,754
Loans and leases, net of unearned income, allowance, and reserve....... 37,316,224
Trading Assets........................................................... 1,646,634
Premises and fixed assets (including capitalized leases)................. 678,439
Other real estate owned.................................................. 11,571
Investments in unconsolidated subsidiaries and associated companies...... 183,038
Customers' liability to this bank on acceptances outstanding............. 349,282
Intangible assets........................................................ 790,558
Other assets............................................................. 2,498,658
-----------
Total assets............................................................. $60,242,491
===========
LIABILITIES
Deposits:
In domestic offices.................................................... $26,030,231
Noninterest-bearing.............................11,348,986
Interest-bearing................................14,681,245
In foreign offices, Edge and Agreement subsidiaries, and IBFs.......... 18,530,950
Noninterest-bearing................................156,624
Interest-bearing................................18,374,326
Federal funds purchased and Securities sold under agreements
to repurchase.......................................................... 2,094,678
Demand notes issued to the U.S. Treasury................................. 232,459
Trading liabilities...................................................... 2,081,462
Other borrowed money:
With remaining maturity of one year or less............................ 863,201
With remaining maturity of more than one year through three years...... 449
With remaining maturity of more than three years....................... 31,080
Bank's liability on acceptances executed and outstanding................. 351,286
Subordinated notes and debentures........................................ 1,308,000
Other liabilities........................................................ 3,055,031
-----------
Total liabilities........................................................ 54,578,827
-----------
EQUITY CAPITAL
Common stock............................................................. 1,135,284
Surplus.................................................................. 815,314
Undivided profits and capital reserves................................... 3,759,164
Net unrealized holding gains (losses) on available-for-sale securities... (15,440)
Cumulative foreign currency translation adjustments...................... (30,658)
. -----------
Total equity capital..................................................... 5,663,664
-----------
Total liabilities and equity capital..................................... $60,242,491
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank, do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi |
Alan R. Griffith | Directors
Gerald L. Hassell |
- --------------------------------------------------------------------------------
<PAGE> 1
Exhibit 25.5
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [__]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
CCC Capital Trust I
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
(Address of principal executive offices) (Zip code)
---------------
Preferred Securities
(Title of the indenture securities)
==============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Name Address
Superintendent of Banks of the State 2 Rector Street, New York, N.Y. 10006,
of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 7th day of December, 1999.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
----------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE> 4
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..................... $ 6,394,412
Interest-bearing balances.............................................. 3,966,749
Securities:
Held-to-maturity securities............................................ 805,227
Available-for-sale securities.......................................... 4,152,260
Federal funds sold and Securities purchased under agreements to resell... 1,449,439
Loans and lease financing receivables:
Loans and leases, net of unearned income........37,900,739
LESS: Allowance for loan and lease losses..........572,761
LESS: Allocated transfer risk reserve...............11,754
Loans and leases, net of unearned income, allowance, and reserve....... 37,316,224
Trading Assets........................................................... 1,646,634
Premises and fixed assets (including capitalized leases)................. 678,439
Other real estate owned.................................................. 11,571
Investments in unconsolidated subsidiaries and associated companies...... 183,038
Customers' liability to this bank on acceptances outstanding............. 349,282
Intangible assets........................................................ 790,558
Other assets............................................................. 2,498,658
-----------
Total assets............................................................. $60,242,491
===========
LIABILITIES
Deposits:
In domestic offices.................................................... $26,030,231
Noninterest-bearing.............................11,348,986
Interest-bearing................................14,681,245
In foreign offices, Edge and Agreement subsidiaries, and IBFs.......... 18,530,950
Noninterest-bearing................................156,624
Interest-bearing................................18,374,326
Federal funds purchased and Securities sold under agreements
to repurchase.......................................................... 2,094,678
Demand notes issued to the U.S. Treasury................................. 232,459
Trading liabilities...................................................... 2,081,462
Other borrowed money:
With remaining maturity of one year or less............................ 863,201
With remaining maturity of more than one year through three years...... 449
With remaining maturity of more than three years....................... 31,080
Bank's liability on acceptances executed and outstanding................. 351,286
Subordinated notes and debentures........................................ 1,308,000
Other liabilities........................................................ 3,055,031
-----------
Total liabilities........................................................ 54,578,827
-----------
EQUITY CAPITAL
Common stock............................................................. 1,135,284
Surplus.................................................................. 815,314
Undivided profits and capital reserves................................... 3,759,164
Net unrealized holding gains (losses) on available-for-sale securities... (15,440)
Cumulative foreign currency translation adjustments...................... (30,658)
. -----------
Total equity capital..................................................... 5,663,664
-----------
Total liabilities and equity capital..................................... $60,242,491
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank, do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi |
Alan R. Griffith | Directors
Gerald L. Hassell |
- --------------------------------------------------------------------------------
<PAGE> 1
Exhibit 25.6
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [__]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
CCC Capital Trust II
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
(Address of principal executive offices) (Zip code)
---------------
Preferred Securities
(Title of the indenture securities)
==============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
Name Address
Superintendent of Banks of the State 2 Rector Street, New York, N.Y. 10006,
of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 7th day of December, 1999.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
____________________________________
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
<PAGE> 4
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1999, published, in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency coin......................... $ 6,394,412
Interest-bearing balances.............................................. 3,966,749
Securities:
Held-to-maturity securities............................................ 805,227
Available-for-sale securities.......................................... 4,152,260
Federal funds sold and Securities purchased under agreements to resell... 1,449,439
Loans and lease financing receivables:
Loans and leases, net of unearned income........37,900,739
LESS: Allowance for loan and lease losses..........572,751
LESS: Allocated transfer risk reserve...............11,754
Loans and leases, net of unearned income, allowance, and reserve....... 37,316,224
Trading Assets........................................................... 1,646,634
Premises and fixed assets (including capitalized leases)................. 678,439
Other real estate owned.................................................. 11,571
Investments in unconsolidated subsidiaries and associated companies...... 183,038
Customers' liability to this bank on acceptances outstanding............. 349,282
Intangible assets........................................................ 790,558
Other assets............................................................. 2,498,658
-----------
Total assets............................................................. $60,242,491
===========
LIABILITIES
Deposits:
In domestic offices.................................................... $26,030,231
Noninterest-bearing.............................11,348,986
Interest-bearing................................14,681,245
In foreign offices, Edge and Agreement subsidiaries, and IBFs.......... 18,530,950
Noninterest-bearing................................156,624
Interest-bearing................................18,374,326
Federal funds purchased and Securities sold under agreements
to repurchase.......................................................... 2,094,678
Demand notes issued to the U.S. Treasury................................. 232,459
Trading liabilities...................................................... 2,081,462
Other borrowed money:
With remaining maturity of one year or less............................ 863,201
With remaining maturity of more than one year through three years...... 449
With remaining maturity of more than three years....................... 31,080
Bank's liability on acceptances executed and outstanding................. 351,286
Subordinated notes and debentures........................................ 1,308,000
Other liabilities........................................................ 3,055,031
-----------
Total liabilities........................................................ 54,578,827
-----------
EQUITY CAPITAL
Common stock............................................................. 1,135,284
Surplus.................................................................. 815,314
Undivided profits and capital reserves................................... 3,759,164
Net unrealized holding gains (losses) on available-for-sale securities... (15,440)
Cumulative foreign currency translation adjustments...................... (30,658)
. -----------
Total equity capital..................................................... 5,663,664
-----------
Total liabilities and equity capital..................................... $60,242,491
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi |
Alan R. Griffith | Directors
Gerald L. Hassell |
- --------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 25.7
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [__]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
Citadel Communications Corporation
(Exact name of obligor as specified in its charter)
Nevada 86-0748219
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
(Address of principal executive offices) (Zip code)
---------------
Guarantee of Preferred Securities of CCC Capital Trust I
(Title of the indenture securities)
==============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
Name Address
Superintendent of Banks of the State 2 Rector Street, New York, N.Y. 10006,
of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b)WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 7th day of December, 1999.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
-------------------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE> 4
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..................... $ 6,394,412
Interest-bearing balances.............................................. 3,966,749
Securities:
Held-to-maturity securities............................................ 805,227
Available-for-sale securities.......................................... 4,152,260
Federal funds sold and Securities purchased under agreements to resell... 1,449,439
Loans and lease financing receivables:
Loans and leases, net of unearned income........37,900,739
LESS: Allowance for loan and lease losses..........572,761
LESS: Allocated transfer risk reserve...............11,754
Loans and leases, net of unearned income, allowance, and reserve....... 37,316,224
Trading Assets........................................................... 1,646,634
Premises and fixed assets (including capitalized leases)................. 678,439
Other real estate owned.................................................. 11,571
Investments in unconsolidated subsidiaries and associated companies...... 183,038
Customers' liability to this bank on acceptances outstanding............. 349,282
Intangible assets........................................................ 790,558
Other assets............................................................. 2,498,658
-----------
Total assets............................................................. $60,242,491
===========
LIABILITIES
Deposits:
In domestic offices.................................................... $26,030,231
Noninterest-bearing.............................11,348,986
Interest-bearing................................14,681,245
In foreign offices, Edge and Agreement subsidiaries, and IBFs.......... 18,530,950
Noninterest-bearing................................156,624
Interest-bearing................................18,374,326
Federal funds purchased and Securities sold under agreements
to repurchase.......................................................... 2,094,678
Demand notes issued to the U.S. Treasury................................. 232,459
Trading liabilities...................................................... 2,081,462
Other borrowed money:
With remaining maturity of one year or less............................ 863,201
With remaining maturity of more than one year through three years...... 449
With remaining maturity of more than three years....................... 31,080
Bank's liability on acceptances executed and outstanding................. 351,286
Subordinated notes and debentures........................................ 1,308,000
Other liabilities........................................................ 3,055,031
-----------
Total liabilities........................................................ 54,578,827
-----------
EQUITY CAPITAL
Common stock............................................................. 1,135,284
Surplus.................................................................. 815,314
Undivided profits and capital reserves................................... 3,759,164
Net unrealized holding gains (losses) on available-for-sale securities... (15,440)
Cumulative foreign currency translation adjustments...................... (30,658)
. -----------
Total equity capital..................................................... 5,663,664
-----------
Total liabilities and equity capital..................................... $60,242,491
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank, do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi |
Alan R. Griffith | Directors
Gerald L. Hassell |
- --------------------------------------------------------------------------------
<PAGE> 1
Exhibit 25.8
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [__]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
Citadel Communications Corporation
(Exact name of obligor as specified in its charter)
Nevada 86-0748219
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
(Address of principal executive offices) (Zip code)
---------------
Guarantee of Preferred Securities of CCC Capital Trust II
(Title of the indenture securities)
==============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
Name Address
Superintendent of Banks of the State 2 Rector Street, New York, N.Y. 10006,
of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b)WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
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<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 7th day of December, 1999.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
-------------------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE> 4
Exhibit 7
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Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..................... $ 6,394,412
Interest-bearing balances.............................................. 3,966,749
Securities:
Held-to-maturity securities............................................ 805,227
Available-for-sale securities.......................................... 4,152,260
Federal funds sold and Securities purchased under agreements to resell... 1,449,439
Loans and lease financing receivables:
Loans and leases, net of unearned income........37,900,739
LESS: Allowance for loan and lease losses..........572,761
LESS: Allocated transfer risk reserve...............11,754
Loans and leases, net of unearned income, allowance, and reserve....... 37,316,224
Trading Assets........................................................... 1,646,634
Premises and fixed assets (including capitalized leases)................. 678,439
Other real estate owned.................................................. 11,571
Investments in unconsolidated subsidiaries and associated companies...... 183,038
Customers' liability to this bank on acceptances outstanding............. 349,282
Intangible assets........................................................ 790,558
Other assets............................................................. 2,498,658
-----------
Total assets............................................................. $60,242,491
===========
LIABILITIES
Deposits:
In domestic offices.................................................... $26,030,231
Noninterest-bearing.............................11,348,986
Interest-bearing................................14,681,245
In foreign offices, Edge and Agreement subsidiaries, and IBFs.......... 18,530,950
Noninterest-bearing................................156,624
Interest-bearing................................18,374,326
Federal funds purchased and Securities sold under agreements
to repurchase.......................................................... 2,094,678
Demand notes issued to the U.S. Treasury................................. 232,459
Trading liabilities...................................................... 2,081,462
Other borrowed money:
With remaining maturity of one year or less............................ 863,201
With remaining maturity of more than one year through three years...... 449
With remaining maturity of more than three years....................... 31,080
Bank's liability on acceptances executed and outstanding................. 351,286
Subordinated notes and debentures........................................ 1,308,000
Other liabilities........................................................ 3,055,031
-----------
Total liabilities........................................................ 54,578,827
-----------
EQUITY CAPITAL
Common stock............................................................. 1,135,284
Surplus.................................................................. 815,314
Undivided profits and capital reserves................................... 3,759,164
Net unrealized holding gains (losses) on available-for-sale securities... (15,440)
Cumulative foreign currency translation adjustments...................... (30,658)
. -----------
Total equity capital..................................................... 5,663,664
-----------
Total liabilities and equity capital..................................... $60,242,491
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank, do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief. Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi |
Alan R. Griffith | Directors
Gerald L. Hassell |
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