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Exhibit 10.30
CITADEL BROADCASTING COMPANY
(a Nevada corporation)
$115,000,000 9-1/4% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
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November 12, 1998
PRUDENTIAL SECURITIES INCORPORATED
BT ALEX. BROWN INCORPORATED
c/o Prudential Securities Incorporated
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Citadel Broadcasting Company, a Nevada corporation (the
"Company") and wholly-owned subsidiary of Citadel Communications Corporation
("Parent"), proposes, subject to the terms and conditions set forth herein, to
issue and sell to Prudential Securities Incorporated and BT ▇▇▇▇. ▇▇▇▇▇
Incorporated, acting severally and not jointly (each an "Initial Purchaser" and
collectively the "Initial Purchasers"), $115,000,000 aggregate principal amount
of the Company's 9-1/4% Senior Subordinated Notes due 2008 (the "Securities").
The Securities are to be issued pursuant to an indenture to be dated as of
November 19, 1998 (the "Indenture") among the Company, Citadel License, Inc.
(the "Subsidiary") and The Bank of New York, as trustee (the "Trustee"). The
Securities and the Indenture are more fully described in the Offering Memorandum
(as hereinafter defined). Capitalized terms used herein and not otherwise
defined herein have the respective meanings specified in the Offering
Memorandum.
The Securities will be offered and sold to the Initial
Purchasers without being registered under the Securities Act of 1933, as amended
(the "1933 Act"), in reliance on an exemption from the registration requirements
of the 1933 Act. The Company is preparing an offering memorandum, dated November
12, 1998 (such offering memorandum, in the form first furnished to the Initial
Purchasers for use in connection with the offering of the Securities, being
hereinafter referred to as the "Offering Memorandum"), setting forth information
regarding the Company and the Securities. The Company hereby confirms that it
has authorized the use of the Offering Memorandum in connection with the
offering and resale of the Securities by the Initial Purchasers in accordance
with the terms hereof.
The Company understands that the Initial Purchasers propose to
make an offering of the Securities on the terms set forth in the Offering
Memorandum, as soon as they deem advisable after this Agreement has been
executed and delivered, (i) to persons in the United States whom the Initial
Purchasers reasonably believe to be qualified institutional buyers
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("Qualified Institutional Buyers") as defined in Rule 144A under the 1933 Act,
as such rule may be amended from time to time ("Rule 144A"), in transactions
under Rule 144A and (ii) outside the United States to persons other than U.S.
persons in reliance on Regulation S ("Regulation S") under the 1933 Act.
The Initial Purchasers and other holders of Securities
(including subsequent transferees) will be entitled to the benefits of a
Registration Rights Agreement, in substantially the form attached hereto as
Exhibit A, with such changes as shall be agreed to by the parties hereto (the
"Registration Rights Agreement"). Pursuant to the Registration Rights Agreement,
the Company and the Subsidiary will agree that the Company shall file with the
Securities and Exchange Commission (the "Commission") under the circumstances
set forth therein, either (i) a registration statement under the 1933 Act
registering the New Securities (as defined in the Registration Rights Agreement)
to be offered in exchange for the Securities and use its best efforts to cause
such registration statement to be declared effective or (ii) under certain
circumstances set forth therein, a shelf registration statement pursuant to Rule
415 under the 1933 Act relating to the resale of the New Securities, and use its
best efforts to cause such shelf registration statement to be declared
effective.
Section 1. Representations and Warranties of the Company. (a)
Each of the Company and Parent jointly and severally represents and warrants to,
and agrees with, each of the Initial Purchasers that:
(1) As of their respective dates and as of the time (the
"Closing Time") of the Closing hereunder, (x) none of the
Offering Memorandum or any amendment or supplement thereto
includes or will include an untrue statement of a material fact
or omits or will omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (y) all reasonable
inquiries have been made to ascertain such facts and to verify
the accuracy of all such information and statements and (z) any
opinions and intentions expressed in the Offering Memorandum or
any amendment or supplement thereto with respect to the Company
are honestly held and are based on reasonable assumptions;
provided, however, that the Company makes no representation or
warranty as to statements or omissions made in reliance upon and
in conformity with information furnished in writing to the
Company by the Initial Purchasers expressly for use in the
Offering Memorandum or any amendment or supplement thereto.
(2) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Nevada with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as now
conducted and described in the Offering Memorandum and to enter
into and perform its obligations under this Agreement, the
Securities, the Indenture and the Registration Rights Agreement;
and the Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other
jurisdiction in which it owns
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or leases property of a nature, or transacts business of a type,
that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing
would not have a material adverse effect on the business, results
of operations, financial condition or properties of the Company
and the Subsidiary taken as a whole or the ability of the Company
to perform any of its obligations under this Agreement, the
Securities, the Indenture or the Registration Rights Agreement (a
"Material Adverse Effect").
(3) The Company's only subsidiary (either direct or
indirect) as of the date hereof is Citadel License, Inc. The
Subsidiary is duly incorporated and validly existing and in good
standing under the laws of the State of Nevada, with corporate
power and authority under such laws to own, lease and operate its
properties and to conduct its business as now conducted and as
described in the Offering Memorandum; and the Subsidiary is duly
qualified to do business as a foreign corporation in good
standing in each other jurisdiction in which it owns or leases
property of a nature or transacts business of a type that would
make such qualification necessary, except to the extent that the
failure to be so qualified or in good standing would not have a
Material Adverse Effect.
(4) The Company has a duly authorized capitalization as of
the date hereof of 136,300 shares of common stock, par value
$0.001 per share, 2,000,000 shares of Series A Exchangeable
Preferred Stock and 2,000,000 shares of Series B Exchangeable
Preferred Stock. As of the date hereof, the Company has 40,000
shares of common stock, 7.46375 shares of Series A Exchangeable
Preferred Stock and 1,136,096.83875 shares of Series B
Exchangeable Preferred Stock duly issued and outstanding. All of
the outstanding common stock of the Company is owned directly by
Parent, has been duly authorized and validly issued, is fully
paid and nonassessable and was not issued in violation of any
preemptive or similar rights (whether provided contractually or
pursuant to any of its articles of incorporation, by-laws or
other organizational documents) free and clear of all liens,
encumbrances, equities and claims or restrictions on
transferability or voting of such capital stock, except as set
forth in the Offering Memorandum. All of the outstanding capital
stock of the Subsidiary is owned directly by the Company, has
been duly authorized and validly issued, is fully paid and
nonassessable and was not issued in violation of any preemptive
or similar rights (whether provided contractually or pursuant to
any of its articles of incorporation, by-laws or other
organizational documents) free and clear of all liens,
encumbrances, equities and claims or restrictions on
transferability or voting of such capital stock, except as set
forth in the Offering Memorandum.
(5) The execution and delivery of this Agreement have been
duly authorized by each of the Company and Parent and this
Agreement has been duly executed and delivered by each of them,
and constitutes the valid and binding agreement of each of them,
enforceable against each of them in accordance with its terms.
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(6) The execution and delivery of the Registration Rights
Agreement have been duly authorized by each of the Company and
the Subsidiary and, on and as of the Closing Time, the
Registration Rights Agreement will have been duly executed and
delivered by the Company and the Subsidiary, and will be legal,
valid and binding obligations of the Company and the Subsidiary,
enforceable against them in accordance with their terms.
(7) The execution and delivery of the Indenture have been
duly authorized by the Company and the Subsidiary, and, on and as
of the Closing Time, the Indenture will have been duly executed
and delivered by the Company and the Subsidiary, and when duly
executed and delivered by the Company, the Subsidiary and the
Trustee, will constitute a valid and binding obligation of the
Company and the Subsidiary, enforceable against the Company and
the Subsidiary in accordance with its terms.
(8) The issuance, execution and delivery of the Securities
and the New Securities have been duly authorized by the Company.
When executed, authenticated, issued and delivered in the manner
provided for in the Indenture and sold and paid for as provided
in this Agreement, the Securities will constitute valid and
binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in accordance
with their terms. The New Securities, when executed,
authenticated, issued and delivered in exchange for the
Securities, will constitute valid and binding obligations of the
Company, entitled to the benefits of the Indenture, enforceable
against the Company in accordance with the terms thereof. The
Securities conform to the description thereof in the Offering
Memorandum.
(9) The financial statements of the Company included in the
Offering Memorandum, together with the related schedules and
notes, present fairly (1) the financial position of the Company
and the Subsidiary on a consolidated basis as of the dates
indicated and (2) the results of operations and cash flows of the
Company and the Subsidiary on a consolidated basis for the
periods specified, subject, in the case of unaudited financial
statements of the Company, to normal year-end adjustments which
shall not be materially adverse to the business, results of
operations, financial condition or properties of the Company and
the Subsidiary, taken as a whole. Such financial statements have
been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The financial statement schedules of the
Company, if any, included in the Offering Memorandum present
fairly in accordance with GAAP the information required to be
stated therein. The selected financial data included in the
Offering Memorandum present fairly the information shown therein
and have been compiled on a basis consistent with that of the
audited consolidated financial statements included in the
Offering Memorandum.
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(10) KPMG Peat Marwick LLP ("KPMG"), which is reporting upon
the audited financial statements and related notes of the
Company, Deschutes (as defined below) and the Division (as
defined below) included in the Offering Memorandum, is an
independent public accountant with respect to the Company and its
subsidiaries within the meaning of the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules
and regulations of the Commission thereunder.
(11) The financial statements of Deschutes River
Broadcasting, Inc. and subsidiaries ("Deschutes") included in the
Offering Memorandum, together with the related schedules and
notes, present fairly (1) the financial position of Deschutes on
a consolidated basis as of the dates indicated and (2) the
results of operations, stockholders' equity and cash flows of
Deschutes on a consolidated basis for the periods specified. Such
financial statements have been prepared in conformity with GAAP
applied on a consistent basis throughout the periods involved.
The financial statement schedules of Deschutes, if any, included
in the Offering Memorandum present fairly the information
required to be stated therein.
(12) The financial statements of Tele-Media Broadcasting
Company and its partnership interests ("Tele-Media") included in
the Offering Memorandum, together with the related schedules and
notes, present fairly (1) the financial position of Tele-Media on
a consolidated basis as of the dates indicated and (2) the
results of operations, deficiency in net assets and cash flows of
Tele-Media on a consolidated basis for the periods specified,
subject, in the case of unaudited financial statements of
Tele-Media, to normal year-end adjustments which shall not be
materially adverse to the condition (financial or otherwise),
earnings, business affairs or business prospects of Tele-Media.
Such financial statements have been prepared in conformity with
GAAP applied on a consistent basis throughout the periods
involved. The financial statement schedules of Tele-Media, if
any, included in the Offering Memorandum present fairly the
information required to be stated therein.
(13) Deloitte & Touche LLP, which is reporting upon the
audited financial statements and related notes of Tele-Media
included in the Offering Memorandum, is an independent public
accountant with respect to Tele-Media within the meaning of the
1933 Act, the 1934 Act and the rules and regulations promulgated
thereunder.
(14) The financial statements of ▇▇▇▇▇▇ Corporation
("▇▇▇▇▇▇") included in the Offering Memorandum, together with the
related schedules and notes, present fairly (1) the financial
position of ▇▇▇▇▇▇ as of the dates indicated and (2) the
statements of income, stockholders' equity and cash flows of
▇▇▇▇▇▇ for the periods specified, subject, in the case of
unaudited financial statements, to normal year-end adjustments
which shall not be materially adverse to the condition (financial
or otherwise), earnings,
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business affairs or business prospects of ▇▇▇▇▇▇. Such financial
statements have been prepared in conformity with GAAP applied on
a consistent basis throughout the periods involved. The financial
statement schedules of ▇▇▇▇▇▇, if any, included in the Offering
Memorandum present fairly the information required to be stated
therein.
(15) ▇▇▇▇▇ & Company, which is reporting upon the audited
financial statements and related notes of ▇▇▇▇▇▇ and ▇▇▇▇▇▇
Broadcasting included in the Offering Memorandum, is an
independent public accountant with respect to ▇▇▇▇▇▇ and ▇▇▇▇▇▇
Broadcasting within the meaning of the 1933 Act, the 1934 Act and
the rules and regulations of the Commission thereunder.
(16) The financial statements of ▇▇▇▇▇▇ Broadcasting
Corporation and Subsidiary and CDB Broadcasting Corporation
(collectively "▇▇▇▇▇▇ Broadcasting") included in the Offering
Memorandum, together with the related schedules and notes,
present fairly (1) the financial position of ▇▇▇▇▇▇ Broadcasting
on a combined consolidated basis as of the dates indicated and
(2) the results of operations, stockholders' deficit and cash
flows of ▇▇▇▇▇▇ Broadcasting on a combined consolidated basis for
the periods specified, subject, in the case of unaudited
financial statements of ▇▇▇▇▇▇ Broadcasting, to normal year-end
adjustments which shall not be materially adverse to the
condition (financial or otherwise), earnings, business affairs or
business prospects of ▇▇▇▇▇▇ Broadcasting. Such financial
statements have been prepared in conformity with GAAP applied on
a consistent basis throughout the periods involved. The financial
statement schedules of ▇▇▇▇▇▇ Broadcasting, if any, included in
the Offering Memorandum present fairly the information required
to be stated therein.
(17) The financial statements of Marantha Broadcasting
Company Inc.'s Radio Broadcasting Division (the "Division")
included in the Offering Memorandum, together with the related
schedules and notes, present fairly (1) the financial position of
the Division on a consolidated basis as of the dates indicated
and (2) the results of operations, deficiency in net assets and
cash flows of the Division on a consolidated basis for the
periods specified, subject, in the case of unaudited financial
statements of the Division, to normal year-end adjustments which
shall not be materially adverse to the condition (financial or
otherwise), earnings, business affairs or business prospects of
the Division. Such financial statements have been prepared in
conformity with GAAP applied on a consistent basis throughout the
period involved. The financial statement schedules of the
Division, if any, included in the Offering Memorandum present
fairly the information required to be stated therein.
(18) The financial statements of Pacific Northwest
Broadcasting Corporation and Affiliates ("Pacific Northwest")
included in the Offering Memorandum, together with the related
schedules and notes, present fairly (1) the financial position of
Pacific Northwest as of the dates indicated and (2) the
statements of income, stockholders' equity and cash flows of
Pacific Northwest for the periods specified,
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subject, in the case of unaudited financial statements, to normal
year-end adjustments which shall not be materially adverse to the
condition (financial or otherwise), earnings, business affairs or
business prospects of Pacific Northwest. Such financial
statements have been prepared in conformity with GAAP applied on
a consistent basis throughout the periods involved. The financial
statement schedules of Pacific Northwest, if any, included in the
Offering Memorandum present fairly the information required to be
stated therein.
(19) ▇▇▇▇▇▇▇▇▇ & Co., P.A., which is reporting upon the
audited financial statements and related notes of Pacific
Northwest included in the Offering Memorandum, is an independent
public accountant with respect to Pacific Northwest within the
meaning of the 1933 Act, the 1934 Act and the rules and
regulations of the Commission thereunder.
(20) The pro forma condensed consolidated financial
statements and other pro forma financial information (including
the notes thereto) included in the Offering Memorandum (1)
present fairly in all material respects the information shown
therein; (2) have been prepared in accordance with the applicable
requirements of Regulation S-X promulgated under the 1933 Act;
(3) have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements;
and (4) have been properly computed on the basis described
therein. The assumptions used in the preparation of the pro forma
financial statements and other pro forma condensed consolidated
financial information included in the Offering Memorandum are
reasonable and the adjustments used therein are reasonably
appropriate to give effect to the transactions or circumstances
referred to therein.
(21) Except as disclosed in the Offering Memorandum, there
is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now
pending or, to the knowledge of the Company, threatened against
the Company or the Subsidiary or any of their respective
officers, in their capacity as such, that could result in a
Material Adverse Effect, or that could adversely affect the
consummation of the transactions contemplated in this Agreement
or the Offering Memorandum; the aggregate of all pending legal or
governmental proceedings that are not described in the Offering
Memorandum to which the Company or the Subsidiary is a party or
which affect any of their respective properties, including
ordinary routine litigation incidental to the business of the
Company or the Subsidiary, could not reasonably be expected to
have a Material Adverse Effect.
(22) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or
foreign (including, without limitation, the Federal
Communications Commission (the "FCC") (other than under the 1933
Act and the rules and regulations thereunder with respect to the
Registration Rights Agreement and the transactions contemplated
thereunder and the securities or "blue sky"
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laws of the various states) is required for the valid
authorization, issuance, sale and delivery of the Securities, for
the execution, delivery or performance by the Company, Parent or
the Subsidiary, as applicable, of this Agreement, the
Registration Rights Agreement, the Indenture and the transactions
and actions contemplated thereby.
(23) Except as disclosed in the Offering Memorandum, the
Company and the Subsidiary validly hold all material licenses,
certificates, permits, consents, authorizations and approvals for
the Existing Stations (as defined below) (collectively,
"Licenses") from governmental authorities which are necessary to
the conduct of their businesses and operations in the manner and
to the full extent now operated or proposed to be operated as
described in the Offering Memorandum; such Licenses were issued
and are in full force and effect and no complaint, action,
litigation or other proceeding has been instituted or is pending
or, to the knowledge of the Company, is threatened which in any
manner affects or questions the validity or effectiveness
thereof; such Licenses contain no materially burdensome
conditions or restrictions not customarily imposed by the FCC on
radio stations of the same class and type; the operation of the
radio stations identified in the Offering Memorandum under the
caption "Business -- Station Portfolio" (collectively, the
"Existing Stations") in the manner and to the full extent now
operated or proposed to be operated as described in the Offering
Memorandum, is in compliance with the Communications Act of 1934,
as amended (the "Communications Act"), the Telecommunications Act
of 1996, and all orders, rules, regulations, and policies of the
FCC, except for such noncompliance as would not have a Material
Adverse Effect; no event has occurred which permits (nor has an
event occurred which with notice or lapse of time or both would
permit) the revocation or termination of such Licenses or the
imposition of any material adverse restriction or condition
thereon or which might result in any other material impairment of
the rights of the Company or the Subsidiary therein; the Company
and the Subsidiary are in compliance with all statutes, orders,
rules, and policies of the FCC relating to or affecting the
broadcasting operations of any of the Existing Stations, except
for such noncompliance as would not have a Material Adverse
Effect.
(24) Neither the Company nor the Subsidiary is in default in
the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound or
to which any of its properties may be subject, except for such
defaults that would not have a Material Adverse Effect. Each of
(i) the execution and delivery by the Company, Parent and the
Subsidiary, as applicable, of this Agreement, the Registration
Rights Agreement and the Indenture, (ii) the issuance, sale and
delivery of the Securities by the Company, (iii) the compliance
by the Company, Parent and the Subsidiary, as applicable, with
the terms of this Agreement, the Registration Rights Agreement
and the Indenture and (iv) the transactions contemplated hereby
and thereby, (A) has been duly authorized by all necessary
corporate action on the part of the Company, Parent and the
Subsidiary, as
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applicable, (B) does not and will not result in any violation of
the charter or by-laws of Parent, the Company and the Subsidiary,
as applicable, and (C) except as would not have a Material
Adverse Effect, does not and will not conflict with, or result in
a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company, Parent and the Subsidiary, as applicable, under, (I) any
contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company, Parent and
the Subsidiary, as applicable, are parties or by which they may
be bound or to which any of their respective properties may be
subject or (II) any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having
jurisdiction over the Company, Parent and the Subsidiary, as
applicable, or any of their respective properties, except that we
have been advised by the Company that the lenders under the
Credit Facility (as defined in the Offering Memorandum) will
consent to the issuance of the Securities provided that the
Securities have terms substantially similar to the terms of the
Company's 10-1/4% Senior Subordinated Notes due 2007 (other than
the pricing terms).
(25) Except as disclosed in the Offering Memorandum, and
other than with respect to the Licenses, each of the Company and
the Subsidiary owns, possesses or has obtained all material
governmental licenses, permits, certificates, consents, orders,
approvals and other authorizations necessary to own or lease, as
the case may be, and to operate its properties and to carry on
its business as presently conducted, and neither the Company nor
the Subsidiary has any reason to believe that any governmental
agency or body is considering limiting, suspending or revoking
any such approval, license, permit, certificate, franchise,
authorization or right.
(26) Each of the Company and the Subsidiary has good and
marketable title to all properties and assets described in the
Offering Memorandum as owned by it, free and clear of all liens,
charges, encumbrances or restrictions, except such as (A) are
described in the Offering Memorandum or (B) are neither material
in amount nor materially significant in relation to the business
of the Company and the Subsidiary, considered as one enterprise;
all of the leases and subleases material to the business of the
Company and the Subsidiary, considered as one enterprise, and
under which the Company or the Subsidiary holds properties
described in the Offering Memorandum, are in full force and
effect, and neither the Company nor the Subsidiary has received
any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or the
Subsidiary under any of the leases or subleases mentioned above,
or affecting or questioning the rights of such corporation to the
continued possession of the leased or subleased premises under
any such lease or sublease.
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(27) Each of the Company and the Subsidiary carries, or is
covered by, insurance in such amounts and covering such risks as
is adequate for the conduct of its respective businesses and the
value of its respective properties and is customary for companies
engaged in similar businesses in similar industries.
(28) Each of the Company and the Subsidiary owns or
possesses adequate patents, patent licenses, trademarks, service
marks and trade names necessary to carry on its business as
presently conducted, and neither the Company nor the Subsidiary
has received any notice of infringement of or conflict with
asserted rights of others with respect to any patents, patent
licenses, trademarks, service marks or trade names that in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, could have a Material Adverse Effect.
(29) No material event of default exists under any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or the Subsidiary is
a party or to which the Company or the Subsidiary is subject.
(30) There are no contracts or documents of a character that
would be required to be described in the Offering Memorandum, if
it were a prospectus filed as part of a registration statement on
Form S-1 under the 1933 Act, that are not described as would be
so required. All such contracts which are so described in the
Offering Memorandum to which the Company or the Subsidiary is a
party have been duly authorized, executed and delivered by the
Company or the Subsidiary, constitute valid and binding
agreements of the Company or the Subsidiary and are enforceable
against the Company or the Subsidiary in accordance with the
terms thereof.
(31) To the best knowledge of the Company, no labor problem
exists with its employees or with the employees of the Subsidiary
or is imminent that could materially adversely affect the Company
and the Subsidiary, considered as one enterprise, and the Company
is not aware of any existing or imminent labor disturbance by the
employees of any of the Subsidiary's principal suppliers,
contractors or customers that could have a Material Adverse
Effect.
(32) All United States federal income tax returns of the
Company and the Subsidiary required by law to be filed have been
filed and all United States federal income taxes which are due
and payable have been paid, except assessments against which
appeals have been or will be promptly taken and as to which
adequate reserves have been provided. The Company and the
Subsidiary each has filed all other tax returns that are required
to have been filed by it pursuant to applicable foreign, state,
local or other law except insofar as the failure to file such
returns would not have a Material Adverse Effect, and has paid
all taxes due pursuant to such returns or pursuant to any
assessment received by the Company and the Subsidiary, except for
such taxes, if any, as are being contested in good faith and as
to which adequate reserves have been provided. The charges,
accruals and reserves on the books of the Company in respect of
any income
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and corporation tax liability for any years not finally
determined are adequate to meet any assessments or re-assessments
for additional income tax for any years not finally determined,
except to the extent of any inadequacy that would not have a
Material Adverse Effect.
(33) Each of the Company and the Subsidiary maintains a
system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization;
(B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP and to maintain
accountability for assets; (C) access to assets is permitted only
in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and the Subsidiary have not made, and, to the knowledge
of the Company, no employee or agent of the Company or the
Subsidiary has made, any payment of the Company's funds or the
Subsidiary's funds or received or retained any funds in violation
of any applicable law, regulation or rule or that would be
required to be disclosed in the Offering Memorandum if it were a
prospectus filed as part of a registration statement on Form S-1
under the 1933 Act.
(34) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA");
no "reportable event" (as defined in ERISA) has occurred with
respect to any "pension plan" (as defined in ERISA) for which the
Company would have any liability; the Company has not incurred
and does not expect to incur liability under (A) Title IV of
ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (B) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company would have any liability
that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
(35) The Company has been advised that the Securities have
been designated PORTAL securities in accordance with the rules
and regulations of the National Association of Securities
Dealers, Inc. ("NASD").
(36) None of the Company or any affiliate of the Company (as
defined in Rule 501(b) under the 1933 Act) has directly or
through any agent, sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as
defined in the 1933 Act) of the Company that is of the same or
similar class as the Securities
-11-
12
(other than with respect to the New Securities) in a manner that
would require the registration of the Securities under the 1933
Act.
(37) None of the Company or any affiliate of the Company or
any person acting on their behalf has (A) engaged, in connection
with the offering of the Securities, in any form of general
solicitation or general advertising (as those terms are used
within the meaning of Regulation D ("Regulation D") of the 1933
Act) or (B) solicited offers for, or offered or sold, such
Securities by means of any form of general solicitation or
general advertising (as those terms are used in Regulation D
under the 1933 Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the 1933 Act or (C) with
respect to the Securities sold in reliance on Rule 903 under the
1933 Act, engaged in any directed selling efforts within the
meaning of Regulation S with respect to the Securities, and each
of them has complied with the offering requirements of Regulation
S.
(38) The Company has not, directly or indirectly, (i) taken
any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities or
(ii) (A) sold (except pursuant to this Agreement), bid for,
purchased, or paid anyone any compensation for soliciting
purchases of, the Securities or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any
other securities of the Company.
(39) Assuming (A) the accuracy of the representations and
warranties of the Initial Purchasers in Section 2 hereof and (B)
the due performance by the Initial Purchasers of the covenants
and agreements set forth in Section 2 hereof, it is not necessary
in connection with the offer, sale and delivery of the Securities
to the Initial Purchasers under, or in connection with the
initial resale of such Securities by the Initial Purchasers in
accordance with, this Agreement to register the Securities under
the 1933 Act or to qualify any indenture in respect of the
Securities under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act").
(40) No relationship, direct or indirect, exists between or
among the Company or the Subsidiary, on the one hand, and the
directors, officers, securityholders, customers or suppliers of
the Company or the Subsidiary, on the other hand, that is of a
character that would be required to be described in the Offering
Memorandum if it were a prospectus filed as part of a
registration statement on Form S-1 under the 1933 Act, that is
not described as would be so required.
(41) The Company is not an "investment company" or a company
controlled by an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended (the "1940
Act").
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13
(42) Neither the Company nor the Subsidiary, nor any
director, officer, agent, employee or other person associated
with or acting on behalf of the Company or the Subsidiary, has
used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment.
(43) All offers and sales by the Company of the Company's
securities which have taken place within the past three years
were at all relevant times exempt from the registration
requirements of the 1933 Act or duly registered under the 1933
Act, and were duly registered or the subject of an available
exemption from the requirements of applicable state securities
laws.
(44) Since the respective dates as of which information is
given in the Offering Memorandum, except as otherwise stated
therein or contemplated thereby, there has not been (A) any
material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of
the Company and the Subsidiary, considered as one enterprise,
whether or not arising in the ordinary course of business, (B)
any transaction entered into by the Company or the Subsidiary,
other than in the ordinary course of business, that is material
to the Company and the Subsidiary, considered as one enterprise,
or (C) any dividend or distribution of any kind declared, paid or
made by the Company on its capital stock.
(45) Except as disclosed in the Offering Memorandum and
except as would not individually or in the aggregate have a
Material Adverse Effect, (A) the Company and the Subsidiary are
each in compliance with all applicable Environmental Laws, (B)
the Company and the Subsidiary have all permits, authorizations
and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are
no pending or, to the knowledge of the Company, threatened
Environmental Claims against the Company or the Subsidiary, and
(D) there are no circumstances with respect to any property or
operations of the Company or the Subsidiary that could reasonably
be anticipated to form the basis of an Environmental Claim
against the Company of the Subsidiary.
(46) For purposes of this Agreement, the following terms
shall have the following meanings: "Environmental Law" means any
United States (or other applicable jurisdiction's) federal,
state, local or municipal statute, law, rule, regulation,
ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent decree or judgment, relating to the
environment, health, safety or any chemical, material or
substance, exposure to which is prohibited, limited or regulated
by any governmental
-13-
14
authority. "Environmental Claims" means any and all
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating in any way to
any Environmental Law.
The statistical and market-related data included in the Offering Memorandum are
based on or derived from sources which the Company believes to be reliable and
accurate in all material respects or represent the Company's good faith
estimates that are made on the basis of data derived from such sources.
(b) Any certificate signed by any officer of the Company or
the Subsidiary and delivered to the Initial Purchasers or to counsel for the
Initial Purchasers shall be deemed a representation and warranty by the Company
to the Initial Purchasers as to the matters covered thereby.
Section 2. Purchase, Sale and Resale of the Securities;
Closing; Representations and Warranties of the Initial Purchasers. (a) On the
basis of the representations and warranties herein contained, and subject to the
terms and conditions herein set forth, the Company agrees to sell to each of the
Initial Purchasers, severally and not jointly, and each of the Initial
Purchasers, severally and not jointly, agrees to purchase from the Company at a
purchase price of 97% of the principal amount thereof, plus accrued interest, if
any, from November 19, 1998 to the date of delivery of the Securities, the
principal amount of the Securities, set forth opposite its name on Schedule I.
(b) Payment of the purchase price for, and delivery of, the
Securities shall be made at the offices of Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon
by the Company and you, at 10:00 A.M., New York time, on November 19, 1998, or
at such other time not more than two business days thereafter as the Initial
Purchasers and the Company shall agree (such date and time of payment and
delivery being herein called the "Closing Time"). The Securities shall be in
such denominations and registered in such names as you may request in writing at
least two business days before the Closing Time. The Securities, which may be in
temporary form, will be made available in New York City for examination and
packaging by you not later than 10:00 A.M. on the last business day prior to the
Closing Time.
(c) At the Closing Time, payment shall be made to the Company
in the aggregate amount of $111,550,000 immediately available funds payable to
the order of the Company against delivery of the Securities to you and the
Company shall promptly reimburse you for your costs in obtaining immediately
available funds.
(d) The Initial Purchasers have advised the Company that they
propose to offer the Securities for sale, upon the terms and conditions set
forth in this Agreement and in the Offering Memorandum. Each Initial Purchaser
hereby represents and warrants to the Company that it is a Qualified
Institutional Buyer as defined in Rule 144A and an "Accredited Investor" as
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15
defined in Rule 501 of Regulation D. Each Initial Purchaser agrees with the
Company that it (i) has not solicited and will not solicit offers for, or offer
or sell, the Securities by means of any form of general solicitation or general
advertising or in any manner involving a public offering within the meaning of
Section 4(2) of the 1933 Act and (ii) has solicited and will solicit offers for
the Securities only from, and will offer, sell or deliver the Securities, as
part of its initial offering, only to (A) persons whom it reasonably believes to
be Qualified Institutional Buyers or, if any such person is buying for one or
more institutional accounts for which such person is acting as fiduciary or
agent, only when such person has represented to it that each such account is a
Qualified Institutional Buyer to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A, and, in each case, in a
transaction under Rule 144A and (B) to non-U.S. persons outside the United
States pursuant to Regulation S of the 1933 Act.
(e) The Initial Purchasers shall notify the Company upon
completion of the distribution of the Securities.
Section 3. Certain Covenants of the Company. The Company
covenants and agrees with each of the Initial Purchasers as follows:
(a) The Company will not at any time make any amendment or
supplement to the Offering Memorandum of which the Initial Purchasers shall not
have previously been advised and furnished a copy for a reasonable period of
time prior to the proposed amendment or supplement and as to which the Initial
Purchasers or their counsel shall reasonably object.
(b) The Company will promptly deliver to the Initial
Purchasers, without charge, during the period from the date hereof to the date
of the completion of the distribution of the Securities by the Initial
Purchasers, such number of copies of the Offering Memorandum, as it may then be
amended or supplemented, as the Initial Purchasers and their counsel may
reasonably request.
(c) The Company will immediately notify the Initial
Purchasers, and confirm such notice in writing, of (x) any filing other than a
filing made under the 1934 Act made by the Company of information relating to
the offering of the Securities with any securities exchange or any other
regulatory body in the United States or any other jurisdiction, and (y) prior to
the completion of the distribution of the Securities by the Initial Purchasers,
(A) any filing made by the Company pursuant to Form 8-K of the 1934 Act and (B)
any material changes in or affecting the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company that (i)
make any statement in the Offering Memorandum false or misleading or (ii) are
not disclosed in the Offering Memorandum. In such event or if during such time
any event shall occur as a result of which it is necessary, in the reasonable
opinion of any of the Company, its counsel, the Initial Purchasers or counsel
for the Initial Purchasers, to amend or supplement the Offering Memorandum in
order that the Offering Memorandum
-15-
16
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances existing at the time it is delivered to a purchaser, not
misleading or if, in the opinion of counsel for the Initial Purchasers or
counsel for the Company, it is necessary to amend or supplement the Offering
Memorandum to comply with applicable law, the Company, at its own expense, will
promptly prepare such amendment or supplement as may be necessary so that the
statements in the Offering Memorandum as so amended or supplemented will not, in
the light of the circumstances existing at the time it is delivered to a
purchaser, be misleading or so that such Offering Memorandum as so amended or
supplemented will comply with applicable law, as the case may be, and furnish
the Initial Purchasers such number of copies as they may reasonably request.
(d) The Company will endeavor, in cooperation with the Initial
Purchasers, to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as the Initial Purchasers
may designate and to maintain such qualifications in effect for as long as may
be necessary to complete the resale of the Securities by the Initial Purchasers;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the
Securities have been qualified as above provided. The Company will also supply
the Initial Purchasers with such information as is necessary for the
determination of the legality of the Securities for investment under the laws of
such jurisdictions as the Initial Purchasers may request.
(e) Except following the effectiveness of the Registration
Statement, neither the Company nor any of its affiliates (as such term is
defined in Rule 501 (b) of Regulation D) will solicit any offer to buy or offer
to sell the Securities by means of any form of general solicitation or general
advertising (within the meaning of Rule 502(C) of Regulation D) or in any manner
involving a public offering within the meaning of Section 4(2) of the 1933 Act
or will engage in any directed selling efforts within the meaning of Regulation
S with respect to the Securities, and each of them will comply with the offering
restrictions requirements of Regulation S.
(f) Neither the Company nor any of its affiliates (as such
term is defined in Rule 501(b) of the 1933 Act) will offer, sell or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
the 1933 Act) the offering of which security could be integrated with the sale
of the Securities in a manner that would require the registration of any of the
Securities under the 1933 Act.
(g) The Company will not be or become an open-end investment
company, unit investment trust or face-amount certificate company that is or is
required to be registered under the 1940 Act, and will not be or become a
closed-end investment company required to be registered thereunder.
-16-
17
(h) During the period from the Closing Time to the earlier of
(i) two years after the Closing Time or (ii) the date of effectiveness of the
registration statement filed pursuant to the Registration Rights Agreement, the
Company will not, and will not permit any of its affiliates (as such term is
defined in Rule 144 under the 1933 Act) to, resell any of the Securities that
have been reacquired thereby, except for Securities purchased by the Company or
any of its affiliates and resold in a transaction registered under the 1933 Act.
(i) The Company will, so long as the Securities are
outstanding and are "restricted securities" within the meaning of Rule 144(a)(3)
under the 1933 Act, either (i) file reports and other information with the
Commission under Section 13 or Section 15(d) of the 1934 Act, or (ii) in the
event the Company is not subject to Section 13 or Section 15(d) of the 1934 Act,
furnish to holders of the Securities and prospective purchasers of the
Securities designated by such holders, upon request of such holders or such
prospective purchasers, the information required to be delivered pursuant to
Rule 144A(d)(4) under the 1933 Act to permit compliance with Rule 144A in
connection with resale of the Securities. For a period of five years after the
Closing Time, the Company will make available to the Initial Purchasers upon
request copies of all such reports and information, together with such other
documents, reports and information as shall be furnished by the Company to the
holders of the Securities issued by it.
(j) If requested by the Initial Purchasers, the Company will
use its best efforts in cooperation with the Initial Purchasers to permit the
Securities sold in transactions described in Section 2(d)(ii)(A) hereof to be
eligible for clearance and settlement through The Depository Trust Company.
(k) Each Security will bear the following legend until such
legend shall no longer be necessary or advisable because such Security is no
longer subject to the restrictions on transfer described therein:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR
-17-
18
TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH CITADEL
BROADCASTING COMPANY ("THE COMPANY") OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE"),
ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES MEETING THE REQUIREMENTS
OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF
THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER
AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
(1) The Company will apply the net proceeds from the sale of
the Securities as set forth in the Offering Memorandum under the heading "Use of
Proceeds."
(m) Prior to the Closing Time, the Company will not issue any
press release or other communications directly or indirectly or hold any press
conference with respect to the Company, the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company, without
the prior written consent of Prudential Securities Incorporated, unless in the
judgment of the Company and its counsel, and after notification to the Initial
Purchasers, such press release or communication is required by law. Prior to the
Closing Time, the Company will not at any time otherwise publicly refer to the
Initial Purchasers without their prior written consent.
-18-
19
(n) During the period beginning from the date of the Offering
Memorandum and continuing to and including the date 180 days after the date of
the Offering Memorandum, the Company will not offer, sell, contract to sell or
otherwise dispose of, without the prior written consent of the Initial
Purchasers, any securities of the Company that are substantially similar to the
New Securities, or any securities of the Company convertible or exchangeable
into securities of the Company substantially similar to the New Securities;
provided, however, the foregoing shall not apply to notes issued in the
Securities Exchange Offer (as defined in the Registration Rights Agreement).
(o) Prior to the Closing Date, the Company will furnish to the
Initial Purchasers, as soon as they have been prepared by or are available to
the Company, a copy of any unaudited interim consolidated financial statements
of the Company for any period subsequent to the period covered by the most
recent financial statements appearing in the Offering Memorandum.
Section 4. Payment of Expenses. (a) The Company will pay all
costs and expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 9 hereof, including all
costs and expenses incident to (i) the preparation and printing or other
production of documents with respect to the transactions, including any costs of
printing the Offering Memorandum and any amendments or supplements thereto, the
Indenture, this Agreement, the Registration Rights Agreement, the Securities and
any blue sky memoranda, (ii) all arrangements relating to the delivery to the
Initial Purchasers of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Company, (iv) preparation, issuance and delivery to the Initial
Purchasers of any certificates evidencing the Securities, including transfer
agent's and registrar's fees, (v) the qualification of the Securities under
state securities and blue sky laws in accordance with Section 3(d) and any
filing for review of the offering with the NASD, in each case including filing
fees and reasonable fees and disbursements of counsel for the Initial Purchasers
relating thereto and in connection with the preparation of any "blue sky" or
legal investment memoranda, (vi) the fees and disbursements of the Trustees,
including the fees and disbursements of counsel for the Trustees, in connection
with the Indenture and the Securities, (vii) any meetings with prospective
investors in the Securities (other than as shall have been specifically approved
by the Initial Purchasers to be paid for by the Initial Purchasers), (viii) any
fees charged by investment rating agencies for the rating of Securities and (ix)
the fees associated with any listing of the Securities on any securities
exchange, including the cost of obtaining approval for the trading of the
Securities through PORTAL. If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the Initial
Purchasers set forth in Section 5 hereof is not satisfied, because this
Agreement is terminated pursuant to Section 9 (a)(i) hereof or because of any
failure, refusal or inability on the part of the Company to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder other than by reason of a default by any of the Initial Purchasers,
the Company will reimburse the
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Initial Purchasers severally upon demand for all out-of-pocket expenses
(including fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities. The
Company shall not in any event be liable to any of the Initial Purchasers for
the loss of anticipated profits from the transactions covered by this Agreement.
(b) In addition to its obligations under Section 6(a) hereof,
the Company agrees that, as an interim measure during the pendency of any claim,
action, investigation,. inquiry or other proceeding arising out of or based upon
any loss, claim, damage or liability described in Section 6(a) hereof, it will
reimburse the Initial Purchasers, and each of them, on a monthly basis against
submission of invoices and such additional information as the Company reasonably
may request for all reasonable legal or other expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the obligations of the Company to
reimburse the Initial Purchasers for such expenses and the possibility that such
payments might later be held to have been improper by a court of jurisdiction.
To the extent that any portion, or all, of any such interim reimbursement
payments are so held to have been improper, the Initial Purchasers receiving the
same shall promptly return such amounts to the party or parties who have paid
such amounts together with interest, compounded daily, determined on the basis
of the prime rate (or other commercial lending rate for borrowers of the highest
credit standing) announced from time to time by Bankers Trust Company (the
"Prime Rate"). Any such interim reimbursement payments that are not made to the
Initial Purchasers within 30 days of a request for reimbursement shall bear
interest at the Prime Rate from the date of such request until the date paid.
(c) In addition to their obligations under Section 6(a)
hereof, the Initial Purchasers agree that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any loss, claim, damage or liability described in
Section 6(b)(i) or 6(b)(ii) hereof, (in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by one or more of the Initial Purchasers
specifically for use in the Offering Memorandum and any amendments or
supplements thereto), they will reimburse the Company on a monthly basis,
against submission of invoices and such additional information as the Initial
Purchasers reasonably may request, for all reasonable legal or other expenses
incurred by the Company in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
the Initial Purchasers' obligation to reimburse the Company for such expenses
and the possibility that such payments might later be held to have been improper
by a court of competent jurisdiction. To the extent that any portion, or all, of
any such interim reimbursement payments are so held to have been improper, the
Company shall promptly return such amounts to the Initial Purchasers together
with interest, compounded daily, determined on the basis of the Prime Rate. Any
such interim reimbursement payments that are not made to the Company
-20-
21
within 30 days of a request for reimbursement shall bear interest at the Prime
Rate from the date of such request until the date paid.
(d) It is agreed that any controversy arising out of the
operation of the interim reimbursement arrangements set forth in Sections 4 (b)
and 4 (c) above, including the amounts of any requested reimbursement payments,
the method of determining such amounts and the basis on which such amounts shall
be apportioned among the indemnifying parties, shall be settled by arbitration
conducted pursuant to the Code of Arbitration Procedure of the NASD. Any such
arbitration must be commenced by service of a written demand for arbitration or
a written notice of intention to arbitrate, therein electing the arbitration
tribunal. If the party demanding arbitration does not make designation of an
arbitration tribunal in such demand or notice, then the party responding to said
demand or notice is authorized to do so. Any such arbitration will be limited to
the interpretation and obligations of the parties under the interim
reimbursement provisions contained in Sections 4(b) and 4(c) hereof and will not
resolve the ultimate propriety or enforceability of the obligation to indemnify
for expenses that is created by the provisions of Section 6 hereof.
Section 5. Conditions of Initial Purchasers' Obligations. The
obligation of each Initial Purchaser to purchase and pay for the Securities that
it has severally agreed to purchase hereunder is subject to the accuracy of the
representations and warranties of the Company contained herein and in
certificates of any officer of the Company and the Subsidiary delivered pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following further conditions:
(a) At the Closing Time, each of the Initial Purchasers
shall have received a signed opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, LLC, counsel for the Company, dated as of the Closing
Time, in substantially the form attached hereto as Exhibit B-1.
Such opinion shall be to such further effect with respect to
other legal matters relating to this Agreement and the sale of
the Securities pursuant to this Agreement as counsel for the
Initial Purchasers may reasonably request.
(b) At the Closing Time, each of the Initial Purchasers
shall have received a signed opinion of Wiley, Rein & Fielding,
FCC counsel to the Company, dated as of the Closing Time, in
substantially the form attached hereto as Exhibit B-2. Such
opinion shall be to such further effect with respect to other
legal matters relating to this Agreement and the sale of the
Securities pursuant to this Agreement as counsel for the Initial
Purchasers may reasonably request.
(c) At the Closing Time, each of the Initial Purchasers
shall have received a signed opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
Nevada counsel for the Company, dated as of the Closing Time, in
substantially the form attached hereto as Exhibit B-3. Such
opinion shall be to such further effect with respect to other
legal matters relating to
-21-
22
this Agreement and the sale of the Securities pursuant to this
Agreement as counsel for the Initial Purchasers may reasonably
request.
(d) At the Closing Time, each of the Initial Purchasers
shall have received the favorable opinion of ▇▇▇▇▇▇▇▇ & Sterling,
counsel for the Initial Purchasers, dated as of the Closing Time,
to the effect that the opinions delivered pursuant to Sections
5(a), 5(b) and 5(c) appear on their face to be appropriately
responsive to the requirements of this Agreement except,
specifying the same, to the extent waived by the Initial
Purchasers, and with respect to the incorporation and legal
existence of the Company, the Securities, this Agreement, the
Indenture, the Registration Rights Agreement, the Offering
Memorandum and such other related matters as the Initial
Purchasers may require.
(e) At the time that this Agreement is executed by the
Company and at the Closing Date, each of the Initial Purchasers
shall have received from KPMG, independent auditors for the
Company, a letter, dated respectively as of the date of this
Agreement and as of the Closing Time, in form and substance
satisfactory to the Initial Purchasers, confirming that they are
independent public accountants with respect to the Company within
the meaning of the 1933 Act and the applicable published rules
and regulations thereunder, and setting forth certain matters
customarily included in accountants' "comfort letters," in form
and substance satisfactory to the Initial Purchasers and counsel
to the Initial Purchasers.
(f) The Company shall have furnished to the Initial
Purchasers a certificate, signed by the Chief Executive Officer
and the principal financial officer of the Company, dated as of
the Closing Time, to the effect that the signers of such
certificate have examined the Offering Memorandum, any amendment
or supplement to the Offering Memorandum, and this Agreement and
that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Time with the same effect
as if made at the Closing Time, the Offering Memorandum, as
it may then be amended or supplemented, does not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Company
has complied with all the agreements and satisfied all the
conditions under this Agreement on its part to be performed
or satisfied at or prior to the Closing Time; and
(ii) since the respective dates as of which information
is given in the Offering Memorandum (exclusive of any
amendments or supplements thereto), neither the Company nor
the Subsidiary has sustained any material loss or
interference with its respective business or properties from
fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor
-22-
23
dispute or any legal or governmental proceeding, and there
has not been any material adverse change, or any development
involving a prospective material adverse change, in the
business, results of operations, financial condition or
properties of the Company and the Subsidiary, taken as a
whole, except in each case as described in or contemplated
by the Offering Memorandum (exclusive of any amendment or
supplement thereto). As used in this subparagraph, the term
"Offering Memorandum" means the Offering Memorandum in the
form first used to confirm sales of the Securities.
(g) The Company shall have furnished to the Initial
Purchasers an amendment to the Credit Facility, the effect of
which is to allow for the issuance of the Securities.
(h) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Time, there shall not have
been any downgrading, nor any notice given of any intended or
potential downgrading or of a possible change that does not
indicate the direction of the possible change, in the rating
accorded the Securities, by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the 1933 Act.
(i) Subsequent to the date hereof or, if earlier, the dates
as of which information is given in the Offering Memorandum
(exclusive of any amendment or supplement thereto), there shall
not have been any change, or any development involving a
prospective change, in or affecting the business or properties of
the Company the effect of which is, in the sole judgment of the
Initial Purchasers, so material and adverse as to make it
impractical or inadvisable to proceed with the purchase and the
delivery of the Securities as contemplated by the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(j) On or before the Closing Time, the Securities shall have
been designated for trading on PORTAL.
(k) At the Closing Time, the Indenture shall have been fully
executed and shall be in full force and effect.
(l) At the Closing Time, the Registration Rights Agreement
shall have been fully executed and be in full force and effect.
(m) The issuance and sale of the Securities pursuant to this
Agreement shall not be enjoined (temporarily or permanently) and
no restraining order or other injunctive order shall have been
issued or any action, suit or proceeding shall have been
commenced with respect to this Agreement before any Court or
governmental authority (including, without limitation, the FCC).
-23-
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(n) On or before the Closing Time, counsel for the Initial
Purchasers shall have been furnished with all such documents,
certificates and opinions as they may have reasonably requested
from the Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement, this Agreement may
be terminated by the Initial Purchasers on notice to the Company at any time at
or prior to the Closing Time, and such termination shall be without liability of
any party to any other party, except as provided in Section 4. Notwithstanding
any such termination, the provisions of Sections 4, 6, 7 and 14 shall remain in
effect.
Section 6. Indemnification and Contribution. (a) Each of the
Company and Parent jointly and severally agrees to indemnify and hold harmless
each Initial Purchaser and each person, if any, who controls any Initial
Purchaser within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any losses, claims, damages or liabilities, joint or several,
to which such Initial Purchaser or such controlling person may become subject
under the 1933 Act, the 1934 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon:
(i) any untrue statement or alleged untrue statement
made by the Company in Section 1 of this Agreement,
(ii) any untrue statement or alleged untrue statement
of any material fact contained in (A) the Offering
Memorandum or any amendments or supplements thereto or (B)
any application or other document, or any amendments or
supplements thereto, executed by the Company or based upon
written information furnished by or on behalf of the Company
filed in any jurisdiction in order to qualify the Securities
under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities
exchange (each an "Application"), or
(iii) the omission or alleged omission to state in the
Offering Memorandum or any amendment or supplement thereto,
or any Application a material fact required to be stated
therein or necessary to make the statements therein not
misleading,
and will reimburse, as incurred, each Initial Purchaser and each such
controlling person for any legal or other expenses reasonably incurred by such
Initial Purchaser or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in the Offering
Memorandum or any amendment or supplement thereto or any Application in reliance
upon and in conformity with written
-24-
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information furnished to the Company by any Initial Purchaser specifically for
use therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have. The Company will not, without the prior written
consent of the Initial Purchaser or Initial Purchasers purchasing, in the
aggregate, more than fifty percent (50%) of the Securities, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not any such Initial Purchaser or any person who controls
any such Initial Purchaser within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Initial Purchasers and such controlling
persons from all liability arising out of such claim, action, suit or
proceeding.
(b) Each Initial Purchaser, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors, each of its
executive officers and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
losses, claims, damages or liabilities to which the Company, any such director,
officer or controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Offering Memorandum or
any amendment or supplement thereto or any Application or (ii) the omission or
alleged omission to state therein a material fact required to be stated in the
Offering Memorandum or any amendment or supplement thereto, or any Application
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by any Initial
Purchaser specifically for use therein; and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability or any action in respect thereof. This indemnity
agreement will be in addition to any liability which any Initial Purchaser may
otherwise have. The Initial Purchasers will not, without the prior written
consent of Parent or the Company, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or not
Parent, the Company or any person who controls Parent or the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act is a party
to such claim, action, suit or proceeding), unless such settlement, compromise
or consent includes an unconditional release of all of Parent, the Company and
such controlling persons from all liability arising out of such claim, action,
suit or proceeding.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party
-25-
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will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 6. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel approved
by such indemnified party (which approval will not be unreasonably withheld);
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action (which approval
will not be unreasonably withheld), the indemnifying party will not be liable to
such indemnified party under this Section 6 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel, if
any) in any one action or separate but substantially similar actions arising out
of the same general allegations or circumstances, designated by the Initial
Purchasers in the case of paragraph (a) of this Section 6, representing the
indemnified parties under such paragraph (a) who are parties to such action or
actions) or (ii) the indemnifying party does not promptly retain counsel
approved by the indemnified party (which approval will not be unreasonably
withheld), or (iii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the written consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 6 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Securities or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or
-26-
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alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Initial Purchasers on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Initial Purchasers. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Initial Purchasers, the parties' relative intents, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the circumstances. The
Company and the Initial Purchasers agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita allocation
(even if the Initial Purchasers were treated as one entity for such purpose) or
by any other method of allocation that does not take into account the equitable
considerations referred to above in this paragraph (d). Notwithstanding any
other provision of this paragraph (d), no Initial Purchaser shall be obligated
to make contributions hereunder that in the aggregate exceed the total offering
price of the Securities purchased by such Initial Purchaser under this
Agreement, less the aggregate amount of any damages that such Initial Purchaser
has otherwise been required to pay in respect of the same or any substantially
similar claim, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute hereunder are several in proportion to
their respective underwriting obligations and not joint, and contributions among
Initial Purchasers shall be governed by the provisions of the Prudential
Securities Incorporated Master Agreement Among Underwriters. For purposes of
this paragraph (d), each person, if any, who controls an Initial Purchaser
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Initial Purchaser, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, shall have the same rights to
contribution as the Company.
(e) The parties to this Agreement hereby acknowledge that they
are sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions of this Agreement, including, without
limitation, the provisions of Sections 4(b), 4(c) and 4(d) hereof and this
Section 6, and are fully informed regarding said provisions. They further
acknowledge that the provisions of Sections 4(b), 4(c) and 4(d) hereof and this
Section 6 fairly allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that adequate
disclosure is made in the Offering Memorandum as required by the 1933 Act.
Section 7. Survival. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Company, its officers, and the several Initial Purchasers set forth in or made
pursuant to this Agreement, respectively, shall remain operative
-27-
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and in full force and effect regardless of (i) any investigation made by or on
behalf of the Company, any of its officers or directors, any Initial Purchaser
or any person who controls the Company or the Initial Purchasers within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act and (ii)
delivery of and payment for the Securities. The respective agreements,
covenants, indemnities and other statements set forth in Sections 4, 6 and 14
hereof shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement.
Section 8. Default of Underwriters. If one of the Initial
Purchasers defaults in its obligation to purchase Securities hereunder and the
aggregate principal amount of such Securities that such defaulting Initial
Purchaser agreed but failed to purchase is ten percent or less of the aggregate
principal amount of Securities to be purchased by all of the Initial Purchasers
at such time hereunder, the other Initial Purchasers may make arrangements
satisfactory to the Initial Purchaser for the purchase of such Securities by
other persons, but if no such arrangements are made by the Closing Time, the
other Initial Purchasers shall be obligated to purchase the Securities that such
defaulting Initial Purchaser agreed but failed to purchase. If one of the
Initial Purchasers so defaults with respect to an aggregate principal amount of
Securities that is more than ten percent of the aggregate principal amount of
Securities to be purchased by all of the Initial Purchasers at such time
hereunder, and if arrangements satisfactory to the Initial Purchaser are not
made within 36 hours after such default for the purchase by other persons, of
the Securities with respect to which such default occurs, this Agreement will
terminate without liability on the part of any non-defaulting Initial Purchaser
or the Company other than as provided in Section 7 hereof. In the event of any
default by one of the Initial Purchasers as described in this Section 8, the
Initial Purchasers shall have the right to postpone the Closing Time established
as provided in Section 2 hereof for not more than seven business days in order
that any necessary changes may be made in the arrangements or documents for the
purchase and delivery of the Securities. As used in this Agreement, the term
"Initial Purchaser" includes any person substituted for a Initial Purchaser
under this Section 8. Nothing herein shall relieve any defaulting Initial
Purchaser from liability for its default.
Section 9. Termination of Agreement. (a) This agreement may be
terminated with respect to the Securities in the sole discretion of the Initial
Purchasers by notice to the Company given prior to the Closing Time, in the
event that the Company shall have failed, refused or been unable to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder at or prior thereto or, if at or prior to the Closing Time,
(i) the Company or the Subsidiary shall have, in the sole
judgment of the Initial Purchasers, sustained any material loss
or interference with its respective business or properties from
fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or any legal
or governmental proceeding or there shall have been any material
adverse change, or any development involving a prospective
material adverse change (including without limitation a change in
management or control of the Company), in the business, results
of operations, financial condition or properties of the Company
and the Subsidiary, taken as a whole, except in each case as
described in or contemplated by the Offering Memorandum
(exclusive of any amendment or supplement thereto);
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(ii) a banking moratorium shall have been declared by New
York or United States authorities; or
(iii) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B)
an outbreak or escalation of any other insurrection or armed
conflict involving the United States or (C) any other calamity or
crisis or material adverse change in general economic, political
or financial conditions having an effect on the financial markets
or the market for the Securities that, in the sole judgment of
the Initial Purchasers, makes it impractical or inadvisable to
proceed with the public offering or the delivery of the
Securities as contemplated by the Offering Memorandum, as amended
as of the date hereof.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6 and 7 shall remain in effect.
Section 10. Information Supplied by the Initial Purchasers.
The statements set forth in the seventh paragraph under the heading "Plan of
Distribution" in the Offering Memorandum (to the extent such statements relate
to the Initial Purchasers) constitute the only information furnished by the
Initial Purchasers to the Company for the purposes of Sections 1(a)(i) and 6
hereof. The Initial Purchasers confirm that such statements (to such extent) are
correct.
Section 11. Notices. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication to the applicable party at the addresses indicated below:
If to the Initial Purchasers:
c/o Prudential Securities Incorporated
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-2018,
attention: ▇▇▇▇▇ ▇▇▇▇▇
with copies to:
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Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If to the Company or Parent:
Citadel Broadcasting Company
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
with copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Section 12. Parties. This Agreement is made solely for the
benefit of the Initial Purchasers, the Company and, to the extent expressed, any
person who controls the Company or any Initial Purchaser within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the directors of
the Company, its officers and their respective executors, administrators,
successors and assigns and no other person shall acquire or have any right under
or by virtue of this Agreement. The term "successors and assigns" shall not
include any purchaser, as such purchaser, from the Initial Purchasers of the
Securities. No Purchaser of Securities from any Initial Purchaser shall be
deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement shall be
governed by the laws of the State of New York. Specified times of the day refer
to New York City time.
Section 14. Counterparts. This Agreement may be executed in
one or more counterparts and when a counterpart has been executed by each party,
all such counterparts taken together shall constitute one and the same
agreement.
Section 15. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
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Section 16. Headings. The Section headings used or contained
in this Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
If the foregoing correctly sets forth our understanding,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement between the Company and the Initial Purchasers
in accordance with its terms.
Very truly yours,
CITADEL BROADCASTING COMPANY
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
CITADEL COMMUNICATIONS
CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Confirmed and accepted as of
the date first above written:
PRUDENTIAL SECURITIES INCORPORATED
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
BT ALEX. BROWN INCORPORATED
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
32
SCHEDULE I
Principal Amount
of Securities
Initial Purchaser to be Purchased
----------------- ---------------
Prudential Securities
Incorporated $ 74,750,000
BT ▇▇▇▇. ▇▇▇▇▇
Incorporated $ 40,250,000
------------
Total $115,000,000
============
