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EXHIBIT 10.9
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF REGISTRATION OR AN EXEMPTION UNDER SAID ACT OR ANY APPLICABLE STATE
SECURITIES LAW.
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED TO THE PRIOR
PAYMENT IN FULL OF THE SENIOR INDEBTEDNESS AS DEFINED IN THE SUBORDINATION
AGREEMENT (AS DEFINED HEREIN).
XXXXXXX XX ACQUISITION CORP.
PURCHASE PRICE NOTE
$24,545,566.53 August 11, 1994
XXXXXXX XX ACQUISITION CORP., a Delaware corporation ("Payor"), for
value received, promises to pay to the order of XXXXXXX BROADCASTING OF
PHILADELPHIA, INC. ("Payee") the principal amount of Twenty-Four Million Five
Hundred Forty-Five Thousand Five Hundred Sixty-Six and 53/100 Dollars
($24,545,566.53), together with interest on the unpaid principal balance
thereof, calculated and payable as set forth below. The principal and interest
on this Note are payable to the Payee in lawful money of the United States of
America at the offices of Xxxxxxx Broadcast Group, 0000 Xxxxxxx Xxxxx, Xxxxx
000, Xxxxxx, Xxxxxxx 00000, or such other place in the United States as the
Payee may from time to time designate in writing.
1. Payment of Principal and Interest.
1.1 Interest. This Note shall accrue interest (computed on the basis
of a 365-day year for the actual number of days elapsed) at the rate of 7.67
percent per annum, compounded annually, commencing on the date hereof.
1.2 Payment of Principal. The unpaid principal balance of this Note,
together with accrued but unpaid interest thereon, shall be due and payable on
the tenth anniversary of the date hereof.
1.3 Optional Prepayment. Payor may, from time to time, without
premium or penalty, pay all or any portion of the principal balance or interest
accrued thereon prior to the date on which such amounts become due and payable.
Any prepayment shall be applied, first, to accrued but unpaid interest and,
second, to principal. Prepayments shall not excuse or defer Payor's obligation
to continue to make any other required payments when due until the principal
balance of this Note and accrued interest thereon is paid in full.
2. Events of Default. The following shall constitute "Events of
Default" under this Note:
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(a) Failure by Payor to make any payment required under this
Note when the same shall become due and payable (whether at maturity, by
acceleration or otherwise) and the continuation of such failure for a
period of five (5) Business Days; provided, however, failure to make any
payment required to be made hereunder shall not constitute an Event of
Default if such payment is prohibited under the Subordination Agreement
(as defined below); or
(b) There shall have occurred in respect of Payor an event
which would constitute an Event of Default under Section 9.01(f) of the
Credit Agreement (as defined in the Subordination Agreement).
If an Event of Default specified in Section 2(a) shall have occurred
and be continuing, Payee by notice in writing to Payor of which Payee has been
notified in writing prior to the date of such notice (the "Acceleration
Notice"), may declare the entire principal amount of this Note immediately due
and payable. If an Event of Default specified in Section 2(b) hereof occurs, the
principal amount of, and accrued interest on, this Note shall become due and
payable immediately without any declaration or other act on the part of the
Payee.
If any Event of Default shall have occurred and be continuing, Payee
may proceed to protect and enforce its rights either by suit in equity or by
action at law, or both, whether for specific performance of any provision of
this Note or in aid of the exercise of any power granted to Payee under this
Note.
3. Subordination. This Note is subject to the terms and provisions of
that certain Amended and Restated Subordination Agreement dated as of the date
hereof among Payor, Payee, Xxxxxx X. Xxxxxxx and NationsBank of Texas, N.A. (the
"Subordination Agreement") and is subordinated to interests of the Senior Lender
(as defined therein) to the extent set forth therein. Nothing contained in this
Section 3 or the Subordination Agreement is intended to or shall impair the
obligation of Payor, which is absolute and unconditional, to pay to Payee the
principal of and interest on this Note or is intended to or shall affect the
relative rights of Payee and the creditors of Payor other than NationsBank of
Texas, N.A., individually and in its role as Administrative Lender in connection
with Credit Agreement (as defined in the Subordination Agreement).
4. Miscellaneous
4.1 Section Headings. The section headings contained in this Note
are for reference purposes only and shall not affect the meaning or
interpretation of this Note.
4.2 Amendment and Waiver. No provision of this Note may be amended
or waived unless Payor shall have obtained the written agreement of Payee. No
failure or delay in exercising
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any right, power or privilege hereunder, shall imply or otherwise operate as a
waiver of any rights of Payee nor shall any single or partial exercise thereof
preclude any other or future exercise thereof or the exercise of any other
right, power or privilege.
4.3 Successors, Assigns and Transferors. The obligations of Payor
and Payee under this Note shall be binding upon, and inure to the benefit of,
and be enforceable by, Payor and Payee, and their respective successors and
permitted assigns, whether or not so expressed.
4.4 Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of Florida without giving effect to any
conflicts of laws principles thereof that would otherwise require the
application of the law of any other jurisdiction.
4.5 Lost, Stolen, Destroyed or Mutilated Note. Upon receipt of
evidence reasonably satisfactory to Payor of the loss, theft, destruction or
mutilation of this Note and of a letter of indemnity reasonably satisfactory to
Payor from the holder of this Note, and upon surrender or cancellation of this
Note if mutilated, Payor shall make and deliver a new note of like tenor in lieu
of such lost, stolen, destroyed or mutilated Note.
4.6 Waiver of Presentment, Etc. Except as otherwise provided herein,
presentment, demand, protest, notice of dishonor and all other notices are
hereby expressly waived by the Payor.
4.7 Usury. Nothing contained in this Note shall be deemed to
establish or require the payment of a rate of interest in excess of the maximum
rate legally enforceable. If the rate of interest called for under this Note at
any time exceeds the maximum rate legally enforceable, the rate of interest
required to be paid hereunder shall be automatically reduced to the maximum rate
legally enforceable. If such interest rate is so reduced and thereafter the
maximum rate legally enforceable is increased, the rate of interest required to
be paid hereunder shall be automatically increased to the maximum rate legally
enforceable, which in no event shall exceed the rate otherwise provided for in
this Note.
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IN WITNESS WHEREOF, Payor has executed and delivered this Note as of
the date first above written.
XXXXXXX XX ACQUISITION CORP.
BY: /s/ SIMON T
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Name: Simon T
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Title: President/Assistant Secretary
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